Gov’t To Legislate Death Sentence Guidelines:
By Myles Adderley -
Nassau, Bahamas:

The government plans to bring a bill to parliament, which would outline sentencing guidelines for murder convicts, Attorney General Claire Hepburn has revealed.

The government plans to bring a bill to parliament, which would outline sentencing guidelines for murder convicts, Attorney General Claire Hepburn has revealed.

Mrs. Hepburn’s revelation comes as the courts continue to face challenges in deciding what sentence a murder convict should get.

After the Privy Council ruled last year that the mandatory death sentence in The Bahamas is unconstitutional, then Attorney General Allyson Maynard-Gibson said there was no need to amend any laws to provide guidelines for trial judges to follow before deciding what sentence to hand down to a convicted murderer.

But President of the Court of Appeal Dame Joan Sawyer believes differently, and so does Mrs. Hepburn, who said the plan is to have such a law passed before the end of the year.

She indicated that there would be a range of sentences for murder convicts.

"These will range from the death penalty to life imprisonment or an even lesser sentence. I’m not trying to avoid our responsibility; we’ve been in office for four months," Ms. Hepburn said.

In March 2006, the Privy Council quashed the death sentence of Trono Davis and Forrester Bowe, two convicted murderers, and ruled that it is unconstitutional for trial judges to automatically sentence murder convicts to death.

She made it clear though that the government was not seeking to dictate to judges how matters before them ought to turn out.

"A judge always exercises his or her discretion on legal principles. It’s not, ‘I just wake up in the morning, look at [someone] and I say he looks like such a nice, quiet boy; he really can’t be that bad, so I’ll just give him a [small sentence]."

Ms. Hepburn said she has complete confidence that judges always make their judgments based on legal principles.

"Sometimes people don’t quite understand when you talk about using [one’s] discretion, but a judicial discretion is much different. It has to be exercised within the parameters of certain legal principles," she said.

President of the Court of Appeal Dame Joan Sawyer indicated last week that the court was in a bind because there is no law that clearly articulates the sentencing process for murder convicts.

She noted that parliament had more than a year to pass relevant legislation, but failed to do so.

Since the ruling against the mandatory death sentence last year, some attorneys have been arguing that there ought to be legal guidelines to follow before determining what sentence a murder convict ought the get, as the Privy Council has ruled essentially that there are varying degrees of murder.

The situation has become more challenging given that the law does not stipulate what constitutes a life sentence.

Just last Wednesday, Murrio Ducille, Trono Davis’ attorney, argued that since parliament has neglected to put legislation in place for an alternative sentence to the death penalty for convicted murderers, courts should resort to a section of the Penal Code that states that where no sentence for a felony has been stipulated the trial judge should impose a seven-year sentence.

Since the Privy Council ruling, some convicted murderers have received life sentences, including some who had previously been sentenced to death.

President of the Bahamas Bar Association Wayne Munroe recently said the imposition of the death penalty without certain clearly defined criteria would continue to create a problem unless the matter is dealt with once and for all.

Mrs. Hepburn said as far as murder cases that are presently before the courts are concerned, nothing can be done until there are judgments in those matters.

"These persons have all been re-sentenced by the Supreme Court; none has been given the death sentence and they are now challenging the sentence that they have received from the Supreme Court. Insofar as what we’re going to do about them, we will have to wait until the court hands down its judgment," Mrs. Hepburn said.

She said the government cannot legislate the certain discretion that judges use to cast judgments.

19 September 2007

Gov’t Loses Land Battle:
By Quincy Parker -
Nassau, Bahamas:

Minister of Works Bradley Roberts and Prime Minister Perry Christie, as Minister of Finance, could face contempt of court proceedings – and possibly jail – if the government doesn’t pay more than half a million dollars the court says it owes the estate of the late Basil Johnson.

The government acquired the land – about 1.7 acres near the Milo Butler Highway – through Compulsory Acquisition in 1999 and has yet to compensate the Johnson estate for it.

Lawyers for the Johnson estate successfully sued the government and obtained a declaration from the Supreme Court that the government’s continued possession of the land without compensation is "unconstitutional and otherwise unlawful."

The plaintiffs – the executors of the Johnson estate – intend to take physical possession of the land if the money isn’t paid by next Tuesday. After that point, according to their lawyers, "any trespass by the (government) will be immediately met with an application to have the minister responsible for such trespass committed to prison for contempt of court."

Minister Roberts is liable because he is the Minister of Works and Utilities, and it would be his workers doing the physical trespassing. Mr. Christie is liable because as the Minister of Finance, it is his responsibility to ensure that the compensation is paid.

The legal action could have serious implications because the land lies directly in the path of the road works for which Minister Roberts signed a multimillion-dollar contract last week.

The land was compulsorily acquired in 1999, and when the project for which it was done was scrapped in 2001 it lay dormant until the Works Minister announced the project last week.

In the interim, the executors of the Johnson estate made numerous attempts to have the government pay for the land. Those attempts proved unsuccessful.

Cedric and Kahlil D. Parker appeared for Johnson’s estate, and asked the court for a declaration that the government’s possession of the land without compensation is unconstitutional and otherwise unlawful; that the government be made to pay the assessed value of the land along with other entitlements as the court decides, and that the plaintiffs may repossess the land, and continue to possess it until the government has paid.

The lawyers argued that "land is a unique and special form of property, rights to which are vigorously defended in Constitutions throughout the Western world. Such rights being protected from infringement by private citizens, but also and arguably more importantly from infringement by the state."

In a Supreme Court Order issued on February 28, Supreme Court Justice Jeanne Thompson declared that the Attorney General’s possession of Johnson’s land without compensation is "unconstitutional and otherwise unlawful."

The judge ordered that the government "do forthwith pay to the plaintiff the sum of $479,665.90 being the assessed compensation sum for the subject land plus interest…plus cost in the sum of $71,949.88 being 15% of the assessed sum."

"The court doth order that in default of payment of the sum hereby ordered to be paid, the plaintiffs are entitled as against the defendant to immediate possession of the land (and) are hereby at liberty to take possession of the land…until full payment of the assessed compensation sum hereby ordered has been paid," the order stated.

In a March 1 letter to the Attorney General’s office, Cedric Parker notified Jennifer Mangra – the attorney in the AG’s office handling the case – that "unless the order for payment is obeyed (by next Tuesday), the plaintiffs intend to and will take physical possession of the subject land."

"Thereafter any trespass by (the government) will be immediately met with an application to have the minister responsible for such trespass committed to prison for contempt of court," Mr. Parker said.

In his submissions, Kahlil Parker cited Article 27 of the Constitution, which provides that no property of any description shall be compulsorily taken possession of, and no interest in or right over any property of any description shall be compulsorily acquired except for public purpose.

The Constitution also provides that the need to acquire that land must reasonably justify causing hardship to the person who owns or has any right to the property.

In addition, the Constitution calls for provision to be made for making prompt and adequate compensation and securing to anyone with an interest in or right over the land access to the Supreme Court to determine the legality of the taking of possession of the land.

"Plaintiffs are before the Supreme Court as a result of the defendant’s breach of their right to prompt and adequate compensation and are also seeking to enforce their right to have the court decide upon and award said compensation," the lawyers submitted.

"The Defendant has violated the Plaintiff’s Constitutional rights on two grounds: failing to provide compensation in a timely manner, and failing to provide any compensation at all."

In the submissions, the plaintiffs accuse the government of ignoring the provisions of the Acquisition of Lands Act, dismissing the various attempts by the plaintiffs to achieve a settlement and prosecuting the matter without concern for the plaintiffs’ rights or interest in its own duty.

"It is therefore submitted that the defendant’s possession of the plaintiff’s land, the defendant having made no attempt to compensate the plaintiffs and having showed no intention to do so, is unconstitutional and ought not to receive the approbation of the court," the lawyers wrote.

Later, Mr. Parker argued that "the plaintiffs are not seeking charity from the defendant; they have a right, entrenched in the Constitution, to demand not only prompt but adequate compensation for land compulsorily taken.

"Both demands have been ignored by the defendant in this matter. It is the defendant’s disinclination toward compensating the plaintiffs which has put this matter before the courts, which is why the plaintiffs seek a declaration that the defendant’s possession of their land without compensation is unconstitutional and otherwise unlawful."

6 March 2007

In The Aftermath Of A Tragedy:

Bahama Journal Editorial:
Nassau, Bahamas:

Some three years ago, the nation was "numbed by the tragedy that unfolded at sea in the early hours of the morning of Saturday 2nd August, 2003 in The Bahamas."

Here reference is to the Sea Hauler tragedy.

The same observer noted that "it has increasingly become a time when mail boats have special hires with masses of people going to the Out Islands for a weekend of relaxation and fun."

As she described the custom: "weekend excursions of overcrowded boats leave New Providence on the evening after work on the Friday and return in the early hours of the morning of the following Tuesday…

"Everyone –she continued - "suspects that the ships are dangerously over crowded and ill equipped for transporting people. They are after all mail boats, and essentially cargo ships."

And, three years ago, the Hon. Glennys Hanna Martin had quite a lot to say about the Sea Hauler tragedy on the high seas. Among other fine words, were these: "I wish at this time to commend the efforts of all the Government agencies which have co-ordinated their roles in the rescue and emergency exercises which have taken place. In particular I wish to commend those who have shown great courage and dedication in the face of this tragedy. We thank the United States Government for its timely assistance with personnel and hardware in this effort."

She was explicit with what seemed a heartfelt message to the victims of that tragedy, as she said: "Finally to the families of those who have lost their lives and those who have suffered injury, some serious; I extend on behalf of the Government our heartfelt condolences. I add my personal condolences and that of my family. I pray that the Almighty will sustain in this time of great sorrow in your lives."

The relevant facts suggest that sometime between 12:30 a.m. and 1 a.m. on Saturday 2nd August, the barge United Star, said not to have had its running lights on, collided with the Sea Hauler, a mail boat. The barge was coming from Cat Island. The mail boat was loaded with 194 passengers and 7 crew. Most of the passengers were sleeping on the deck."

Of crucial importance is the fact that the Sea Hauler had a crane on it. As important is the fact that the crane’s moorings had rusted to a considerable degree,

It is widely believed that "the captain of the Sea Hauler saw the barge coming at the last minute and tried to take evasive action. The action may have saved lives, since the impact of the hit was on the side near the crane on the mail boat. The boat did not sink. But the crane fell over and crushed several people. There are six people reported dead. There were some 17 injuries."

Three years later, the tragedy continues for many of those people.

Some have been left impoverished.

Others have been left crippled for life.

And yet again, one or two have been left so distressed that they have taken to the streets as beggars.

In the meantime, the legal issues involved in this case remain to be resolved.

For a while, the victims thought that they should hold on just a while longer.

Their patience has worn out.

We are not at all surprised. That is so because there are times in life when enough already is –quite literally- the moral equivalent of more than enough.

Such seems the state of mind of those who now take their protests and cries to the streets.

Clearly believing that they have been wronged, some of these people have taken their protests and cries to some of this city’s most busy streets. In one instance, one or two of these people had themselves handcuffed to gates in front of the Prime Minister’s house.

This provocation had its intended result. In short order, there was media focus and attendant broadcast of their anguished hue and cry.

We are today absolutely convinced that those people who are aggrieved should avail themselves of all legal avenues available and also that they should at all times reach out to media.

If those who were injured are ever to be compensated, then they must take the appropriate action against those parties who they believe are liable.

They will get nowhere calling names or merely making accusations.

We call on the victims to use our Legal system to their benefit.

22 December 2006

Bahamian Law

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

Gov’t In Contempt Of Court:

By Candia Dames -
Nassau, Bahamas:

In what some observers have labeled a stunning and unprecedented move, Supreme Court Justice Jeanne Thompson has appointed a receiver to collect government taxes in order to satisfy a judgment debt awarded to a Japanese man, who was unlawfully imprisoned for eight years by the Bahamas government.

Mrs. Justice Thompson found that the failure of the government to comply with a Court of Appeal order to pay Atain Takitota $500,000 was "contumacious and without any explanation".

Listed as defendants are the attorney general, the director of immigration and the minister of national security.

The order is being considered a landmark one as it is the first time in the history of The Bahamas that a receiver has been appointed to collect government taxes to satisfy a debt owed to a judgment creditor.

The judge has empowered Camille Darville-Gomez to collect income generated by the casinos at Cable Beach and Paradise Island for the account of the government up to the value of the judgment debt; monies of the government held in any accounts with the Royal Bank of Canada or any other commercial bank doing business in The Bahamas; any unpaid dividends owed by any company in which the government has a shareholding; and departure taxes due to the government which have been collected by any airline company or travel agency doing business in The Bahamas.

Mrs. Darville-Gomez is authorized to write such letters, commence such writ actions and take such steps as are necessary to collect the money.

Earlier this year, the Court of Appeal awarded Mr. Takitota $500,000 "for the loss of eight years and two months" of his life.

The Japanese man came to the Bahamas on vacation in August 1992 from Osaka, Japan, according to reports. He reportedly lost between $7,000 and $8,000 gambling before realizing that his luggage containing his passport and money had been stolen.

Police arrested him on a vagrancy charge, but Mr. Takitota was never charged. Instead, he was locked away for years. Reports describe him as an amnesiac and the Court of Appeal said, "What is particularly troubling about this case is that not once during the entire eight-year period that the appellant was incarcerated was he taken before any court at any time."

Mr. Takitota was at some point in the custody of immigration authorities, and the judges said the only reason those authorities gave for detaining the Japanese visitor was that he was "an undesirable and his presence was not conducive to the public good."

Mr. Takitota was a married man with a two-year old son at the time he was arrested, and he reportedly attempted suicide several times at Her Majesty’s Prison due to the deplorable and inhumane conditions under which he was reportedly housed.

The Associated Press reported earlier this year that it was not clear if the man had known his identity, but the Japanese Embassy in the Dominican Republic had said initial investigations in 1994 did not identify him as a Japanese citizen.

The Bahama Journal obtained an affidavit sworn recently, which contained a copy of a letter dated November 1, 2006 written by the man’s attorney, Damian Gomez, to Director of Legal Affairs Debbie Fraser.

In that letter, Mr. Gomez says after the decision of the Court of Appeal, he applied to the court to enforce the judgment and several hearing dates had taken place.

He says representatives from the Attorney General’s Office had said that the judgment debt would be paid and that they were merely awaiting the formality of Cabinet to approve the payment.

According to the letter, Justice Thompson ordered on July 31 that the judgment be paid on or before August 18, 2006.

Mr. Gomez says, "In spite of the said numerous representations and appearances the judgment debt has not been paid. Further to your failure to raise any objection the matter was set down for mention. Her Ladyship (Justice Thompson) fell ill and the matter obviously did not proceed.

"To date your office has failed to even communicate with me concerning payment of my client’s judgment debt. Indeed, I was not even copied with your putative objections misplaced upon a practice direction, which on its face relates only to the setting down of trials. Repeated attempts to reach your legal officers have been futile."

Mr. Gomez adds in his letter to Ms. Fraser, "The contumacy and bigotry of your office ought to be stopped. It is bad enough that your clients have robbed my client of the better part of a decade of his life and have separated him from his wife and son while imprisoning him in the dehumanizing squalor of Fox Hill Prison.

"Now you pretend to hide behind irrelevant procedural rules in order to deprive further a vindicated victim. What is worse is that you with knowledge of the matter hereinbefore recited have cast aspersions on the reputation of Her Ladyship and published the same to the Honourable Chief Justice, thereby presumably inviting him to interfere with the exercise of Her Ladyship’s judicial function."

The attorney concludes by saying, "From your egregious and unconstitutional conduct to date, I am certain you will only have available counsel on the 12th day of never. My client cannot wait that long."

The letter was included in an affidavit sworn by John Deal, of the law firm Deal & Gomez, before the judge ordered the receiver appointed.

"I verily believe that unless the coercive powers of the Honorable Supreme Court are deployed to effect the due execution of the judgment debt herein the plaintiff/judgment creditor will be put to great prejudice and inconvenience by the contumacy of the defendant/judgment debtors," Mr. Deal says.

In an affidavit of her own, Mrs. Darville-Gomez says she has been a practicing attorney for 10 years, has focused in recent years on the law relating to financial services, and has worked for such companies as Fortis Fund Limited.

She is presently a consultant to Oceanic Bank & Trust Limited.

Meanwhile, the Japanese man is reportedly still in the Bahamas working as a parking lot attendant. He plans to appeal to the Privy Council in an effort to get the sum to be paid to him increased, the Bahama Journal has learnt.

11 December 2006

Bahamas Law