By ADRIAN GIBSON
The rule of law, as noted by the great philosopher Aristotle, is preferable to that of any individual.
British philosopher Thomas Hobbes opined, in his work ‘Leviathan’, that without the rule of law, life would be “nasty, brutish and short”. No one is above the law ... or, at least that’s how it’s supposed to be.
In The Bahamas, not only are we seeing an absolute disregard for the rule of law by the common criminals and so-called bad boys on the streets, but we are also seeing such criminal and seemingly lawless conduct on the part of many of our elected officials. Clearly, there is no respect or regard for the court when ministers openly dismiss rulings and, by their contemptuous statements, breach and/or attempt to breach the Bar Code of Ethics (for those who are lawyers) and mount blatant and insidious attacks that bring the courts into disrepute.
I have, on numerous occasions, been discussing a case or law with Fred Smith QC and he has, several times, urged that we must “hold the line”, that we must stand in the stead of the Bahamian people and fight against any abuses by government, elected officials and wayward public servants, that we must pursue justice and serve as those guardians of the Constitution.
I believe that the courts, as was so nobly espoused by Viscount Simonds, hold a “residual power to enforce the supreme and fundamental purpose of the law”, not only in criminal matters or civil matters but in any matter or dispute that leaves one feeling affronted, not in agreement, injured and so on.
The governing Progressive Liberal Party (PLP) has seemingly rolled from one scandal to another. Operatives and ministers have generally shown a disregard and disrespect for the law. A perfect example of this is the ruling in Blackbeard’s Cay. The ruling was given on July 17, 2014, and Senior Justice Stephen Isaacs on August 31, 2015, issued an Order to enforce the judgment. In the Blackbeard’s Cay matter, Senior Justice Isaacs ruled that the development was in contravention of the Planning and Subdivisions Act and had conducted extensive development without site plan approval.
The ruling called for the immediate end to all activities, the return of the dolphins and for the government to cause the cay to be reverted to its original condition. It was also found that Prime Minister Perry Christie and the Town Planning Committee had breached their statutory duties. Needless to say, Blackbeard’s Cay remained in operation even after the government was handed a court order to shut down the controversial tourism project. What’s more, Blue Illusions - the developer - allegedly invested a further $4 million after the Supreme Court issued a judgment calling for the government to close the project.
So, if Blue Illusions invested a further $4 million and built new structures on the property, how was the developer purportedly allowed to continue construction in defiance of the judgment? From whom did Blue Illusions obtain permits? How were permits obtained at Town Planning without public hearings? Who authorised the Exchange Control approvals? Why has the government not seen to it that the court’s ruling is and was enforced immediately? This approach has denigrated the justice system and could be seen as an attempt to reduce the courts to powerless panels whose rulings are simply dismissed and ignored. There is clearly a serious disengagement between laws passed by Parliament and the executive branch of government’s enforcement arm.
Recently, Jean-Mary Justilien, a Haitian national acquitted in the Magistrate’s Court but released to the Department of Immigration, was unceremoniously deported although a notice of a writ of habeas corpus and a writ of habeas corpus were served upon the Office of the Attorney General, who represents the government’s interest in matters of state or matters involving public officers. Notwithstanding the service of legal documents notifying them of extant actions before the court and several news reports, Justilien was deported without due process. How are such actions lawful?
The problem I have with this notion of simply ignoring the rule of law is that it leads to anarchy and abuse. What happens to Justilien or in the Blackbeard Cay matter or to the police officers when they won their case for the overtime pay could happen to any one of us. No government is above the law and it cannot be selective in what it enforces, who it pays and how it treats cases.
And then there is the newly proposed Planning and Subdivisions Bill (PSB) that will repeal the current Planning and Subdivisions Act (PSA) and grossly water down the original legislation. Is the new draft bill repayment to the governing party’s major electoral donors?
The draft Bill is overly lenient and leaves little to no legal recourse relative to the preservation of our environment from developers who may have little regard for such concerns. We are seeing what is no doubt a politically motivated, radical redrafting and alteration to the current PSA.
As it stands, the draft asserts that the public will only be consulted on some developments while certain other developments will proceed without public consultation, those developments being repairs to harbour installations, any and all dredging, land reclamation and works to ports and harbours that are not a part of an infrastructural project. Even more, any developer who builds on crown land or any property without the proper approvals is no longer required to demolish such structures but instead would only be fined $10,000 if convicted.
Here’s the kicker ... environmental impact assessments are no longer imperative but are optional depending on the kind of development being undertaken. Do we really trust our government officials with such power, particularly when they regularly kiss up to high net worth donors with such interests and could easily fall into such a person’s pockets?
The PSB also proposes to remove the requirement for land use plans being created for development throughout the Bahamas. Considering the fact that Hurricane Joaquin left so many communities under water, do we really want to remove this valuable aspect from the Act? Not only do these land use plans assess the impact of development on a place, but allow for sensible town planning and zoning, for flood prone areas to be identified before people invest their life savings constructing their dream home in a disaster zone, for ordered development. So, why should this be struck from a new Act?
On February 10, 2014, the chairman of Arawak Homes - the former PLP MP, political donor and newly knighted Sir Franklyn Wilson - told The Tribune that the government “absolutely cannot” enforce and implement the statutory processes in the Planning and Subdivisions Act 2010 due to a lack of expertise, resources and manpower. Effectively implying that it will cost the government money it does not have to uphold its own laws, Mr Wilson backed Michael Major, the Director of Physical Planning, as “dead right” for his alleged assertion that properly applying the Planning and Subdivision Act would send the administration ‘bankrupt’.
This, he explained, was because the failure to follow the Act’s statutory processes would potentially expose every Bahamas-based development project to potential Judicial Review challenge in the Supreme Court.
In his wrap up of the debate on the Planning and Subdivisions Bill (current PSA) on October 28, 2009, former Prime Minister Hubert Ingraham stated that it sought “to codify an improved standard for our town planning and subdivision approval. This Bill when enacted and brought into force will apply to development in New Providence and eventually to development in every Family Island. This Bill when enacted will provide greater assurance that developers will not be permitted to develop subdivisions in unsuitable locations or to sell lots prior to the installation of required infrastructure. The provisions in this Bill increase transparency in the approval process permitting those who are likely to be most impacted by a development to view and comment upon the proposal, to raise objections and to have their objections heard.”
Indeed, I have heard countless horror stories about Bahamians purchasing property and building in certain so-called subdivisions where the developers never install the utilities or hardly ever live up to their end of the agreement, leaving them with nightmarish experiences and additional expenses they cannot afford. The current PSA protects against that.
Notably, although Sir Franklyn asserted that the enforcement of the current PSA would leave the government bankrupt and that the government lacked the manpower, expertise and resources, in his 2009 speech Mr Ingraham accounted for such new personnel, stating:
“The enactment of this Bill will clearly require substantial changes in personnel at the Department of Physical Planning. We have already begun the planned increase in the allocation of funding to the Department of Physical Planning and such increase in resources for the Department will become more evident in the next Budget cycle and before, in the mid-year budget exercise. We have already advertised in The Bahamas to fill a number of vacancies at the Department. The response has been disappointing. We will now proceed to advertise vacancies outside of The Bahamas in an effort to fill the posts of Chief Physical Planner and other posts with a view to ensuring that the Department is properly staffed to administer this law and planning generally. Additionally, personnel, trained in planning and environment, will be engaged in most Family Islands to ensure appropriate approval and oversight of development.”
So, shouldn’t the manpower, expertise and resources already be in place?
Frankly, the draft Bill appears to be another attempt on the part of the government to ram certain developments down our throats without question, namely the developments of their benefactors, lobbyists, political financiers and the monied bloc! After all, an election is coming and, like they did for the numbers men, they have to now do something for their tin gods.
If the draft PSB passes in its current state, the gates to the holy grail of corruption will swing wide open and in will run these politicians with their hats in hand and their pseudo offering pans, all begging and hustling for a few dollars. The ‘all for me baby’ syndrome has taken hold and the PSB, in its current state, could be manipulated into yet another get-rich-quick scam for political con artists to cash in on the backs of the gullible and/or unaware. Is it repeal-old-PSA to unleash-a-new-PSA that yield political/personal profit?
If we think Baha Mar, Ginn, the I-Group and other stalled or failed developmental projects by land speculators were massive land grabs, the draft PSB opens the door for Bahamians to be displaced, wetlands to be destroyed, crown land to be forever out of the average man’s reach and picturesque beachfront property to only be available to the rich or slick talking foreigner/connected Bahamian who, when it no longer favours him, will dump the Bahamas much like the Genting Group/Bimini Superfast is doing to the people of Bimini. I have always held the view that my six-year-old son is a better negotiator than many of those who negotiate on our behalf; so just imagine how much easier it would now become for land speculators to swindle us all.
All amendments to the current PSA should go through a period of public consultation and should not be watered down to the disadvantage of the Bahamian public. The Planning and Subdivisions Act is a vital tool in the regulation and enforcement of all development throughout the country and any inability to ensure its application will again raise fears about widespread unregulated construction in this nation.
We must demand greater accountability. We must demand a Freedom of Information Act. We must ensure that our courts are seen and promoted as having the power and authority to generally censor and guard public morals and our fundamental rights and that rulings rendered will be enforced across the board, without exceptions. We must ensure that law enforcement is not selective.
Indeed, the rule of law is preferable to no one!