INTERVENTION THE SENATE
BY SENATOR FRED MITCHELL
ON MANDATORY MINIMUM SENTENCE
AND THE AMENDMENT TO THE COURT OF APPEAL ACT
26 JANUARY 2000
Clickable Headlines
Don't Abuse Human Rights
Bahamians Home From Cuba
Need Independent Judiciary
Rent-A-Judge
Bahamianize The Bench
Leapfrog At The Court
A Culture of Disrespect

Mandatory Minimum Sentences

Mister President, many of us thought that the Government had lost the courage of the conviction of others when they failed to move forward with the abolition of mandatory minimum sentences.  It is a good idea to get rid of them and put the discretion back into the judiciary.  These sentences came into being when Parliament, pressured by the public on crime, thought that they would take away judicial discretion and impose harsh sentences on convicted criminals.
    As we understand it, this is a recommendation of the National Crime Commission, which reported last year.  We should not be surprised that this was their recommendation, having regard to the fact that a Judge headed the Commission.
 

A MOST TERRIBLE INJUSTICE
    The most terrible injustice was visited upon the citizens of this country by the amendment to the Firearms Act which imposed a two-year mandatory sentence on those convicted of illegal firearm possession.  I warned against the amendment in this place, told them that it would not do a thing to stop crime or illegal guns. I told them that all that would happen is that people who the law was not designed to get, would end up going to prison, and the real criminals would go free.
    But this Parliament is so cavalier with the freedom of the individual that it ignored what we had to say.  Now they have to turn back, and put the discretion back into the hands of the judges where it belongs.  The problem is, what happens to all those lives ruined by the stupid law that they passed?  I repeat the case of a 63 year old man who was found with an old weapon that had no use, and which he had simply not disposed of.  Convicted.  Sent to jail at 61 years old.  How does he get that time back from an unfair law?

GOVERNMENT HAS FAILED ON CRIME
    The problem is, as I say Mister President, is that this society does not appreciate the notion of individual freedom.  It is caught up in the question of punishment and is apparently willing to throw away personal liberty and the rights of human beings as essentially free individuals in order to make the public think that the Government is doing something on crime.
     Those who defend human rights are the brunt of the scorn of the movers and shakers of the society, constantly being harangued about being soft of crime.  Yet, what success has the Government shown by being tough on crime?  The answer is none.  In fact, all they can now say in the face of their shameful performance on crime is: apart from murder crime is down.  That is like saying we won the battle but we lost the war or the operation was successful but the patient died.
    This Government must admit that it has failed on crime, and this bill is its clearest admission yet of that failure.
    What I believe this bill also does, Mister President is that we should remove beyond doubt and reverse beyond doubt the ruling of Chief Justice Joan Sawyer that a Magistrate cannot give an absolute discharge when faced with a finding of guilt on a firearms charge.  It was my view and the law seems clear, but the Chief Justice disagrees that the absolute discharge is available in these cases where Parliament has not specifically excluded it.  But in reversing a decision of a Magistrates Court, the Chief Justice has ruled that an absolute discharge cannot be granted, nor can a conditional discharge.  The Magistrate can only sentence a two-year term of imprisonment or more on the firearms charge.
    I know of a case where a man had been given a conditional discharge, and he thought the matter was at an end, only to have his sentence appealed by the Crown, the Chief Justice then imposed the sentence on him, so in my view he suffered double jeopardy.  Who is going to compensate him for that?
     But as I have said Mister president, who really cares about all of that?  Not apparently most of the Bahamian people.  We have all sat back idly and let this Parliament eat away at our liberty in the name of fighting crime.  We have seen the evidence that what this Parliament has done has not affected the level of crime in any way, except to make it worse, but we still continue to support measures which abuse the human rights of our citizens.

DON'T ABUSE HUMAN RIGHTS
    If we are not careful, we will soon have a whole generation of young black men who are experienced jailbirds, all in the name of fighting crime.
     Human rights Mister president is more than fighting for persons tried for capital offenses.  It is about those basic and fundamental freedoms which the Constitution has enshrined in articles 15-28 and some more as delineated in the Universal Declaration of Human Rights.  It is about the rights of women; the right to an education; the right to work.  And I wish to spend some time speaking about the defence of the right to work, and the increasing discrimination against workers who have reached the age of fifty or close.
    That is what the defence of human rights is about. We must defend the human rights of every person.  We must defend them here at home, and it must be an integral part of our foreign policy.
    That is  why the PLP made it clear when we first met with the representatives of the Chinese Government in this country that we were concerned about the treatment of their citizens in China and the abuse of their rights to practice religion and to dissent politically.  That is why the PLP defends the rights of workers in this country.
     As the Oppositionís spokesman for Foreign Affairs, I have been at great pains to advise my Leader and all Governments with whom we have contact that the PLP sees human rights as an integral part of its foreign policy, namely those rights enshrined in the Universal Declaration of Human Rights.
     We have raised the issue of the rights of Cuban citizens and their freedom to travel out and into their country with the Cuban Ambassador.  We have expressed publicly our concern that the judicial system of Cuba did not give due process to our citizens who are detained in Cuba.

BAHAMIANS HOME FROM CUBA
Mister President, I am pleased to report that five Bahamians have been released by the Cuban Government and have returned to their habitations in The Bahamas.  They have expressed through relatives their thanks to the PLP for the public efforts to obtain their release.   The five were convicted in Cuba of what the Cuban Government called illegal entry.  They insist that they were pursued and picked up in Bahamian waters, framed by Cuban authorities, and then  sentenced to two years imprisonment.
     According to the Bahamians, their sentences expired in September of last year but they were held in prison until 1 January when they were released.  What was most galling to them is the lack of consular assistance from the Ministry of Foreign Affairs, and it is a complaint, which other relatives have today.
     The Ministry of Foreign Affairs has not been cooperative with the PLP on this issue.  That is why we continue to speak about it publicly.  The Government, I personally believe, needs to consider some resident consular assistance for Bahamian given the numbers who travel there for frolic and for commerce every week.  I am to meet the Cuban ambassador at lunch today and will raise again the plight of Bahamians in prison in Cuba. We are close to obtaining agreement from the Cuban Government to visit Cuba.
     Further, we understand that the protocol which will allow the transfer of prisoners serving time in Cuba to serve their sentences in The Bahamas is to become effective as early as the 1 February.
 

Amendment to the Court of Appeal Act

CALL FOR A STRONG & INDEPENDENT JUDICIARY
    That is why we are concerned about the state of the Courts in The Bahamas.  We want a strong and independent Judiciary, not one that is controlled by the whims and fancies of the executive.
     Which leads me to the second of the Bills which is up for debate today the Amendment to the Court of Appeal Act.  First let me say that this is a non-contentious act.  But we believe that it is an unnecessary piece of legislation brought on by haste and another piece of unnecessary legislation.
    Mister President, you might remember the history of this Bill.  Sharon Wilson, the former Magistrate who is the wife of former PLP representative Franklyn Wilson, was run out of the Judiciary last year by this Government.  The Chief Justice had offered her the post of Registrar of the Court of Appeal.  This was a new post that had only been passed in 1998 by the Parliament.  Then after Mrs. Wilson had agreed with the Chief Justice to accept the post, Mrs. Wilson heard on the radio that the post was being abolished and  the post of Deputy Registrar of the Supreme Court was to be created with responsibility for the Court of Appeal.
    Now how pray tell, the logic of  a Deputy Registrar of the Supreme Court running the Registry of the Court of Appeal makes any sense, only the logic of the FNM can explain that, but that is what they did.  Now they come to us to pass this further amendment because they claim that they forgot to include the transfer of the powers in the original act given to the Registrar of the Court of Appeal to the Registrar of the Supreme Court.  Things get curiouser and curiouser.
    And still no word from the government about when or if we are going to get new volumes of the statute laws of The Bahamas.  I was before the Supreme Court two weeks ago and the Chief Justice complained that she herself was not supplied with the amendments provided by Parliament.  It only confirmed what I have said in this place before that, sometime Judges donít even know the law of the land because of this hodge podge, willy nilly way that this Government approaches these matters.

RENT-A-JUDGE
Mister President, in the week that I spoke under the fig tree, the second week in the year, there was a picture of a strange gentleman published in the Nassau Guardian being sworn in as  Judge of the Court of Appeal.  His face was not strange to me but I am sure most other Bahamians would not have a clue who he was.  The picture said that a man name Kenneth George was being appointed by this Government to be President of The Court of Appeal.  This man will be president for precisely three months as he reaches the mandatory retirement age in March 2000. It is important to know who the judges are: their judicial temperament, their philosophy.  We certainly would not want a confirmed fascist on our bench.
    And that is why I continue to campaign against this rent-a-Judge situation we have courtesy of the Government of Australia.  I appeared before Mister Justice Lyons last week in Freeport.  Again a pleasant man, and he himself told me a of the story of Bahamian defendants who were charged with offences in 1989 and cannot get their cases heard up to this day! They are still on bail.  He himself told the defendants how seriously he takes the liberty of the subject.  These same men served five years in prison for a crime for which the penalty was only six months.  You ask yourself, how is this allowed to happen and no one comes to his or her rescue?

THE BENCH MUST BE BAHAMIANIZED
    But despite the fact that personally Mister Justice Lyons may be a nice man, the principle remains.  The bench must and can be Bahamianized.
    When I appeared before the Supreme Court two weeks ago, the attorneys for the crown told of a case decide by Kearney J while he was here for three months under the Australian scheme.  He left without perfecting a judgement which has wide implications for the public service.  Now they are finding it difficult to perfect his judgement because he has left and they canít understand his writing.  How is justice served like that?
    And so Mister President for the second time in six  months that we have had a new President of the Court of Appeal.  Sabola retired in October. Boyd Carey was President until December when he reached the mandatory age of retirement.  Now George is to retire in March.
    Meanwhile an able Bahamian by the name of Burton Hall who is eminently qualified to be the President of the Court of Appeal sits cooling his heels.  Anyone will tell you that this man Kenneth George is perhaps the rudest judge that sits on the Bahamian bench today.  He disrespects senior Bahamian counsel and junior alike.  He simply does not know how to talk to people and is too combative as a Judge.  He should not in fact be on the bench of The Bahamas. I cannot wait until he retires.  But the question then will be, who is to succeed him?

LEAPFROG AT THE COURT OF APPEAL
     Mister President, yet another prediction of mine came true.  And I say this for the benefit of the Minister of Health who is constantly interrupting presentations of this kind by asking me where I get this information from, and expressing groans of incredulity that the Government cannot refute anything is say because the information is always accurate.    You will know Mister President, that Loris Gatpansingh, a Guyanese National came to The Bahamas some eighteen months ago.  Personally, he is a nice man but that is not what this is about.  This is about the principle of whether or not he should be serving on the bench of The Bahamas.  His fellow countryman former Chief Justice and former President of the Court of Appeal Joaquim Gonsalves Sabola recruited him to come to work as a Judge in Nassau.  There was no space for him to live in Nassau so he was sent to Freeport on the promise that at the first opportunity a place would be found for him in Nassau. Some eighteen months later, a place has been found for him and that place is as a Judge of the Court of Appeal.  He has superseded all the other judges both Bahamian and non-Bahamian on the bench and became a Court of Appeal judge.

UNDUE INFLUENCE BY ADVISORS
    That told the judges something about their worth.  That also signaled the extent to which Joaquim Sabola continues to exercise undue influence over the mind of the Prime Minister. The judges demanded and got a meeting with the Chief Justice who is the head of the Judicial and Legal services Commission to get some explanation from her as what is going on with judicial appointments. But apparently only one person in town knows and that is the Prime Minister - the Minister of everything and the Judge of everything.
    It is important to note that Sabola continues even after his retirement to benefit from the largesse of the public treasury of The Bahamas.  He still drives the Governmentís car.  He still lives in the House which is supposed to be reserved to the President of the Court of Appeal which he no longer is.  The question is how does he come to have all these perks.  Could it be because he now is the beneficiary of a contract as Law Reform Commissioner?
    Further Mister President, we have learned that Boyd Carey who just retired as President of  the Court of Appeal also now has a three year contract with the Attorney Generalís office to assist that office in the prosecutions.  So here we have the spectre of a recently retired Court of Appeal judge accompanying the officers of the crown to Court to help with prosecutions.  Something is wrong and unseemly about it.  It takes no great leap of faith to suggest that and believe that while sitting on the bench making decisions in which the crown was involved, the future advisor to the Crown may have favoured the Government.  Taking the job is improper, and the Government offering the job is improper.
    But what do we care about impropriety.  The whole society, led by the FNM Government has no sense of it.  What they have is a sense of their own self-importance.  And so they can seek to pack the Judiciary with persons who are friendly to their interest, knowing that any challenge to their authority at that level will be turned back.

LACK OF RESPECT FOR THE RULE OF LAW
    I wish to bring Mister president to this body a number of cases which suggest that  there is a lack of respect for the human rights of Bahamians and for the rule of law by this Government.
    The Ministry of Education received an application from one Carmetta Rolle, a teacher at the C.H. Reeves Junior High School.  That application was given before the Ministryís deadline on 31 March 1999 for an in-school transfer to the Religious Knowledge Department from the English Language Department.  In the middle of the term in October 1999, after agreeing to the transfer, the Ministry decided that the transfer would be rescinded and that she had to go back to her original department.  No consultation, no  request, but an instruction.
     We have obtained before the Supreme Court an order which confirms an undertaking given to the Court that Mrs. Rolle is to be returned to the classroom in the Religious Knowledge Department until trial of the matter.  I received a call from the Bahamas Union of Teachers on Monday of this week to say that the Ministry was refusing to comply with the order.  I hope that they have now complied, but it is the kind of thing that we experience every day, Government Departments that have no respect for the rule of law and for the Courts.  And they feel they can get away with this because at the top of  the heap is a man who has no respect for the rule of law or the Courts.  It is a culture of disrespect that has been engendered by this Government.

CULTURE OF DISRESPECT
     So that would have made it easy Mister President for the Deputy Prime Minister to have called in 23 police officers on Friday last, and without authority, dismiss them from the Police Force.  Then further, go on the radio and besmirch their reputations in the worst form of slander that you have heard.  Further, I verily believe that a calculated leak of misinformation was given to the local gossip rag which by innuendo further besmirched the characters of  the 23 officers in a way that they cannot defend themselves.
     It is a flagrant abuse of the law. One only needs to read the Police Act and it states quite clearly in Section 53 the ways that an officer can be discharged from the Force.  None of those reasons include a recommendation made by CDR International, British consultants.  And what has insulted the officers is that while CDR has recommended the reduction of Bahamian police officers, their numbers on the Force of British advisors has increased.  The Government has no authority to fire police officers in that manner, and they have further sought to pollute the issue by bringing into the matter the careers of two police officers of a different era which have nothing to do with their actions in this case. In fact, it was inappropriate for Deputy Prime Minister Watson to get involved at all.  The constitution and the Police Act say that the Commissioner of Police runs the Force. This is rank political interference in the running of the Force.
     The difficulty is that each of the officers is afraid to act in the Courts to do anything about it.  They believe that the Government is vindictive, and having heard the story of Carmetta Rolle, they believe that the Government will ignore any order of the Court.  So here we have citizens of the country whose job it has been all their lives to enforce law and order, being treated in an unlawful manner and they believe that they are without a remedy.  I believe that this Government must have a screw lose somewhere.  How did we ever get to this?

NO PUBLIC OPINION
     We get to this because of a lack of a developed public opinion on these matters.  We get to this because people are too subservient to authority.  We get to this because the society still has a messianic complex, believing that with one political messiah having been disposed of,  then we can get another and leave all the decisions to him.  And then we express surprise that the Emperor Jones abuses our rights.  It must necessarily happen.  V.S. Naipaul describes the phenomenon as the Negro always needing a political redeemer so that he might be saved.
    There are Bahamians Mister President who are ready willing and able to serve on the bench of the Supreme Court: Winston Saunders, Cheryl Albury, Jeanne Thompson, Vera Watkins.  Joe Strachan a retired Bahamian judge of the Supreme Court, an able-bodied man is sitting at home cooling his heels.  The Governmentís prejudice against Bahamians on the bench is a disgrace.

LABOUR TRIBUNAL V/P
    I wish also to announce, and I am pleased to report to the people of Freeport that the Vice President for the Tribunal in Freeport ahs been appointed.  Mrs. Kelphine Cunningham may start as early as next week hearing cases.  I wish her the best in this new job, and I hope that she adjudicates matters with the sensitivity of a Bahamian that we expect, and further as a Bahamian who has herself been abused by the Government as a worker in this country.
    We must have a return to the respect for human rights of all Bahamians, respect for the rule of law.  We cannot continue to have a Judiciary that is itself cowed by the executive.

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