American Woman Wants Receiver To Collect Gov’t Taxes On Her Behalf:

By Candia Dames -
Nassau, Bahamas:

The recent decision by Supreme Court Justice Jeanne Thompson to appoint a receiver to collect government taxes to satisfy a judgment debt has "blazed a new path" for other judgment creditors to come forward to seek similar orders and at least one of them intends to do so immediately, according to a Freeport-based attorney.

Fred Smith said Tuesday his client, Tamara Merson, will also seek an order from the Supreme Court appointing a receiver to collect taxes to pay the debt the government owes her.

Mr. Smith said with costs, this now amounts to roughly $500,000. It’s the same amount the government owes Atain Takitota, a Japanese man who was imprisoned unlawfully by the Bahamas government for more than eight years.

Last year, the Privy Council reversed a Court of Appeal decision, which had substantially reduced the award of damages to Ms. Merson, an American woman, who sued Bahamian police for battery and malicious treatment nearly two decades ago. (Mr. Takitota also intends to appeal to the Privy Council in an effort to get his judgment debt increased).

Ms. Merson won her initial case back in March 1994 when Justice Joan Sawyer found that police had behaved in a callous, unfeeling, high handed, insulting and malicious and oppressive manner both with respect to the arrest and imprisonment as well as the malicious prosecution of the woman.

The court had found that the police falsely alleged that she had "abetted the commission of the alleged offences of illegally operating a bank."

More than a year after the Privy Council ruling, Mr. Smith said the government still has not paid her what is owed to her, although an initial payment was made years before.

"Since succeeding at the Privy Council we have repeatedly written to the attorney general requesting payment and we have even threatened to bring proceedings against the minister of finance in order to force payment, but we have just been met with stony silence. There is a complete failure to observe the rule of law and to respect the judgment of the Supreme Court," Mr. Smith said.

He also noted that Justice Thompson’s recent order to appoint a receiver in the Takitota matter was significant.

"It was a dramatic manifestation of the use of the constitutional power under Article 28 by the Supreme Court to create a remedy where one did not previously exist," Mr. Smith said.

"The fact is that unless judges are proactive and are prepared to use Article 28 to create new forms of remedy to force government to obey the law then getting judgments is a futile and pyrhhic exercise because many people do get judgments against the government, but the government simply ignores them or fails to pay them or takes many, many years and pays them in their own sweet time. It makes a mockery of the judicial system."

In the Takitota case, Justice Thompson found the government to be in contempt of court for failing to pay him in accordance with the court order made earlier this year.

Mr. Smith viewed the judge’s order as a landmark win for the protection of human rights.

"There’s no sense in having a constitution if rights are not enforced, and there’s no sense in getting a judgment from the Supreme Court for damages if they are not paid," he said. "I think a new day is dawning for human rights having regard to the use of Article 28 in creating this receivership remedy."

Mr. Smith encouraged all judgment creditors owed by the government to come forward to force the government to obey the law.

"Maybe the government would then take seriously making sure that the Defense Force officers behave, making sure that policemen are properly trained [and] making sure that the immigration officers don’t falsely arrest people," he said.

"It’s only when governments start to become accountable and when you hit the pocket, when you hit the purse and make them pay would they begin to perhaps effect the structural changes within government services to make sure that these abuses don’t repeat themselves. If people keep getting judgments and they don’t get paid then the government really has no motivation to make things right from the start."

13 December 2006

Bahamas Law