The Tribune

The January 28 Poll Is Not a Referendum and Therefore Can and Should Be Challenged Before the Courts - Here is Why:

EDITOR, The Tribune.

The poll that the government plans to put to the Bahamian people can be challenged before the courts because what is being put to the people on January 28 is not a referendum at all.

Here is the legal definition of a referendum that you should remember throughout the rest of this article:

REFERENDUM - The right reserved to the people to approve or reject an act of the legislature, or the right of the people to approve or reject legislation that has been referred to them by the legislature. A referendum provides the people with a means of expressing their opinion on proposed legislation before it becomes operative as a law. The power of referendum does not permit the people to invalidate a law that is already operative but suspends or annuls a law that has not yet gone into effect. Also, by referendum the people may reinstate an act that the legislature has expressly repealed.

Therefore, what is being held on January 28 is not a referendum, because in the case of the numbers business and a lottery – no legislation has been presented by parliament for us to vote for or against.

If there is no legislation being voted for or against, there is no referendum.

The Constitutional Referendum Amendment Bill that was passed last year enables the government, through the Parliamentary Registration Department to hold referenda of a non-constitutional nature, meaning it can now hold referenda that is not designed to change the Constitution. But what is being held on January 28 is not a referendum at all, because a referendum is a vote on legislation or proposed legislation – and no legislation on the numbers business and a lottery has been presented by the Parliament.

So this January 28 poll has no basis in law, even in the amended law the government passed to avoid having to amend the Constitution in any way on gaming, because it does not pass the legal definition of a referendum.

What the January 28 poll does pass the definition of is an opinion poll and/or advisory referendum – neither of which is allowed for in Bahamian Law or the Bahamas Constitution, and neither of which legally bind the government to act one way or the other, regardless of the outcome of the vote – this point is very important to understand.

The January 28 poll is not a referendum, and so there is no law enabling the government to hold this poll. What it is still holding is an opinion poll, which the law does not permit, and which the government is not bound to obey.

And here is another key point about a referendum: the authority to hold a referendum in the first place comes from a State’s Constitution – that is the case in every free nation that has a Constitution. But The Bahamas’ Constitution only gives The Bahamian people the right to vote in a referendum that changes the constitution.

Therefore, what is the Constitutional basis and authority of the Constitutional Referendum Amendment Bill passed by the Government last year, since that Bill now says the Bahamian people can vote in referenda that does not change the Constitution but the Constitution does not say we can do that?

Who or what gave the Parliament the authority to legislate and decree a “non-constitutional referendum” when such an animal does not exist in the Constitution of the Bahamas at all, and therefore such an animal has no Constitutional authority? That Bill itself can be challenged before the Courts on the basis of its constitutionality or lack thereof.

As an aside, what is also critical to know is whether that Amendment Bill passed last year has even been enacted into law as yet – because if not, even if the January 28 poll was a referendum (which it is not), it would be held illegally if the new Bill that allows for such a thing has not yet been enacted.

Has it been enacted? If so, on what date?

There is another critical point to this January 28 poll and that is the questions themselves. Remember now, the numbers business and a lottery has not yet been made legal through an Act of Parliament. The two are illegal today, will be illegal on January 28 when the polls open, on the night of January 28 after the votes are counted and on the morning of January 29, etc.

Yet, the government of The Bahamas is asking the Bahamian people to vote on whether it should do business (collect taxes and assign some rules) with operations that are still illegal in The Bahamas.

Under what law anywhere can a government put such a thing to its citizens by way of a vote? Citizens vote on laws and proposed laws in a referendum, not on promises and ideas.

There is no law or proposed law legalising the numbers business and a national lottery – therefore there is nothing for the Bahamian people to vote on come January 28.

The January 28 poll does not meet the legal definition of a referendum. It is not asking the Bahamian people to vote on a law or proposed law because neither of the two exists. It is therefore not a referendum; it is an opinion poll, which is illegal according to our current laws.

And because the January 28 poll, despite all the prevaricating by the Government, is still not in accordance with law, it can be and should be challenged before the Courts – a task that should be done by Her Majesty’s Loyal Opposition on behalf of the people of The Bahamas.

SHARON TURNER

January 4, 2013