|DNA party leader Branville McCartney gives contribution to crime bills package|
|Wednesday, 19 October 2011 08:07|
Mr. Speaker, I am indeed humble to stand before you today on behalf of the good constituents of Bamboo Town.
Mr. Speaker, the past 4½ years have been quite interesting regarding the representation of Bamboo Town. I have had the great honour of meeting many persons, young and old and have made lifetime friendships. Many programs were developed from day one, such as the “Precious Jewels” senior citizens program, the youth program, after-school homework center, adult computer classes, Thy Brothers Keeper program and free legal clinics were offered. Community meetings were held especially when there were pressing national issues, such as the BTC sale.
It is truly amazing the attention Bamboo Town has gotten recently.
The Member for North Abaco said last week that Bamboo Town is his “tings.”
That he is coming to get his “tings.”
It was said that Bamboo Town would be a “test case.”
It was further said that persons running in Bamboo Town are in a certain league and not in the league of the Member for North Abaco and Farm Road.Indeed, the Member for North Abaco said that if the FNM is not successful in Bamboo Town, his most worthy opponent the official leader of the Opposition Party, the PLP, will be successful and the Member for North Abaco seems very satisfied and content with that.
What is most striking to me, however, is the fact that the Member for North Abaco, a few days before the commencement of this debate said he does not want Bamboo Town to be eliminated as a constituency by the Constituencies Commission. Of note, the Member for North Abaco said that if the Constituencies Commission comes back and report that they have eliminated the constituency of Bamboo Town, he would not accept it! The good member just informed Parliament on the formation of the Constituencies Commission and made such a comment, declaration, command before the Commission meets—that he, the PM, would not accept a particular decision if made by them. With regard Sir, the Member for North Abaco is wrong, wrong, wrong!! AND out of order! The member assertion is unconstitutional! It goes contrary to Article 69 and Article 70 of the Constitution.
For the record, in May of this year when the Member of Parliament for North Abaco and his cabinet came to Bamboo Town to apologize for sending me, it was stated, Bamboo Town was FNM. At that time, I told the good Member, if Bamboo Town is FNM, I challenge him to run against me—leader against leader. I subsequently said that if Bamboo Town is eliminated, as the leader of the DNA, I could determine which constituency to contest and that the North Abaco constituency has not been ratified as yet by the DNA.
A Crisis of Leadership and Survival Mode
Mr. Speaker, at this very moment The Bahamas and the majority of Bahamian people are in survival mode. They have given up on the government of The Bahamas to fulfill its primary obligation to them, which is to look out for their security and welfare and provide them with the means and opportunities by which they can be first class citizens in their own country. As a result of the failure of successive governments to fulfill its primary obligation to the people, many have now resorted, by whatever means necessary, to taking care of “their own” safety and welfare needs; what we are now experiencing is the ensuing chaos.
You see Mr. Speaker, no matter how some may feel about the flaws and failings of leadership during the late 70s and 80s, many still have an unwavering respect and appreciation for that era of leadership, because their perception is that the leadership was working tirelessly as a voice of the people to champion Bahamian right—rights that have us, as a people, now enjoying majority rule and independence. And even though there are those who, in looking at the root cause of our present state of societal affairs, say that what we see today fed off of and grew from “the rampant drug trafficking and “gangsterism,” which ran wild in the 70s and 80s,” there are those who also credit that era with producing a kind of leadership that was visionary enough to architect and begin the process and promise of Bahamian ownership. If one were to read Sir Lynden’s letters and speeches in his text, The Vision of Sir Lynden, one would gain a greater appreciation of Sir Lynden, the visionary, and see how his vision for The Bahamas, if enacted, would probably have us listed as a developing nation, like Barbados, our neighbor to the south, or by now, a developed nation.
However, the reality is that that era did produce a crisis in leadership and there were those who felt the leader had to go. Visionary or not, Sir Lynden, because of his perceived misgivings, was deemed no longer suitable or credible enough to govern. For some, he was a national embarrassment and, as such, ill-suited to be a role model. According to some sitting right here in the House today, he had to go, Mr. Speaker. I think North Abaco made his position on this matter and Sir Lynden quite clear in his ranting in the House last week.
But since that era, Mr. Speaker, both the members from North Abaco and Farm Road have been given the opportunity by the Bahamian people to reverse the plague of rampant materialism that North Abaco said in his national address has “laid waste to our long-held values and positive social morals.” And for almost 20 years, we as a people have placed our lives in their hands, because they told us that we could trust that they had a vision to get us back on course to the promise that majority rule and independence held for us—ownership and a first world status.
And despite all the speechifying by both in the past 20 years, uncontrolled national debt, out of control violence and crime, a dysfunctional educational system, excessive land and property asset give-away, record unemployment, mounting poverty, a decrepit health system, rampant materialism and did I say out of control violence and crime?—all illustrate to Bahamian people that history is now repeating itself. We are once again having a crisis in meaningful leadership and as a result, we are now reaping another bad harvest.
Mr. Speaker, our purpose here today and for the rest of the week is to discuss the proposed changes to a package of Crime Bills, hoping to enact them as to get our out of control people under control and back in line. As leaders, we distract attention from our own inabilities, inattentiveness, incompetence and lack of self-discipline by blaming the criminal offenders for all of our societal woes.
Now, Mr. Speaker, as many of you know, I for one am a believer that if someone breaks the law, then justice must ensue. So, I hope that what I will say is not misconstrued as me taking a soft stance on the administration of justice for violent and criminal acts, or any act, as a matter of fact, that is in contravention of our stated laws. In no way am I implying that at all.
What I am implying, however, is that we cannot sit back in righteous indignation and simply blame the criminals and the criminally minded, the delinquents and the dejected for our state of affairs without taking into consideration, first, the role that we play as national leaders and public figures in the destruction that we now see in our society.
Right now, Mr. Speaker, as we debate this issue of crime and criminality, the member for North Abaco may himself have failed to comply with certain laws under the Public Disclosure Act. In a public statement sometime last year, the Member said he has not disclosed his assets, as required by law, since 2007. Mr. Speaker, I think you are well aware that for Ministers of the Government, failure to publicly disclose their and their immediate family’s assets, interests and income is an offense punishable by a $10,000 fine, up to two years in jail or both. Additionally, the MP can have his property forfeited to the crown. In making his statement last year, the Member said he was “too busy” to come into compliance with the law at the time. You see, Sir, we have persons who flaunt non-compliance in people’s face, while creating laws that do not apply to them to punish everyone else. But, these young people, who see what’s going on, Mr. Speaker, develop the mentality that if these officials can get away with non-compliance, then why can’t they. They do not know that justice does not work the same way for them until it is too late. They do not understand that the same law that some are above is the same law that will come crashing down on them. In survival mode, however, Mr. Speaker, most do not care anymore.
The average Bahamian sees government officials getting rich while they get poorer; they see foreigners coming to The Bahamas, prospering, while they struggle to live above the poverty line with many not making it. Everyone seems to be making a living off of them, but they have no one who can provide them with ways and opportunities to make a meaningful living for themselves—outside of those that have been in place for almost half a century. Barely able to make ends meet, a number of people have this perception that government has “stop checking” for them.
They feel as if the promise of Bahamians as owners and builders of their own land and destinies—a promise started with Sir Lynden and majority rule and independence—has been lost with North Abaco and Farm Road, and that “everything for Bahamian people are backing up.” Ask the average Bahamian on the street Mr Speaker if they see any real solution to this violent crime epidemic and almost all will tell you, No! They say that unless government “check for the people again, crime is not going to go anywhere no matter what the government does.” What pessimism coming from our people, Mr. Speaker.
But their pessimism, I guess Mr. Speaker, is tied to the words of one writer who says, when [people] are stuck in survival mode, [Their hearts are] not open. [Their] rational mind is disengaged. Making clear choices and recognizing the consequences of those choices is unfeasible. [They] are focused on short-term survival, not the long-term consequences of [their] beliefs and choices,” and as a result, “it is almost impossible to cultivate positive attitudes and beliefs,” particularly in the periods of leadership crisis.
I now turn to examine the Proposed Bills:
The Penal Code (Amendment) Bill, 2011
1. This Bill is long overdue. From 2006 when the Privy Council set aside the mandatory sentence of death for murder there was a need for this legislation. In 2008 in the Court of Appeal case of Maxo Tido v Regina, Dame Joan Sawyer the then President of the Court of Appeal in the judgment of the Court pointed to the need for legislation. The Bar Council called for legislation from 2006 and continued that call up to today.
2. The major error that is made is that the framers of the amendments fail to appreciate that, right now, the sentence of life imprisonment presently means imprisonment for the rest of the life of the convict. It is the Advisory Committee on the Prerogative of Mercy (ACPM) that advise persons who have been sentenced to life to be released early. The Minister of National Security, the Attorney General and at least three government appointees chair this Committee. Life presently means natural life. This was the ruling of the Court of Appeal in the case of Forrester Bowe on his re-sentencing.
3. The Bill does not do away with the ACPM’s ability to release persons early and so is really a game by defining life in the exact same way it is now defined. If they wanted you not to be able to be released there would have to be a section like the new section 33A in the Dangerous Drugs (Amendment) Bill to rule out the ability of the ACPM to release someone early. That is not included in the Bill and so persons will still be able to be released. If they want to mean what they say they need to say that you cannot be release by the ACPM.
4. This position of someone being sentenced to prison for the rest of their life where, at the time of sentencing it is known that they will not be released is actually contrary to the death penalty jurisprudence. Contrary to what the Member for Cat Island says in his contribution, it is recognized that if someone is so bad and/or their offence is so bad that they ought to never be released from prison and this convict should be sentenced to death. This is the actual definition of someone who should be sentenced to death. There should be, therefore, only two classes of persons: 1) persons who are sentenced to death and 2) persons who are sentenced to a sentence that will result in their eventually being released from prison.
5. In the categories of persons whose murder makes you death eligible does not include the representatives of parties in civil cases or defence counsel in criminal matters whose murder is motivated by their representation. This is not consistent.
6. In the categories of death eligible murders the bill does not seek to define what will be considered to be a murder committed “in the course of or furtherance of” one of the named offences. There have been a number of cases in Caribbean jurisdictions where there have been difficulties in making the determination.
7. The sadistic murder of a child for sexual gratification where no other felony is committed (Bowe and Davis v R-Privy Council para 21); is not included.
8. A planned cold-blooded killing (see Tido v R-Privy Council
para 36); is not included.
9. A killing accompanied by unusual violence more than is required to accomplish the killing (see Tido v R-Privy Council para 36); is not included.
It also does not cover some categories of murder that it appears from anecdotal evidence the public considers to be amongst the worse of the worse even when public opinion is stripped of it subjective elements, i.e.:
a). The deliberate killing of a child whether planned or unplanned;
b). The deliberate killing of the handicap whether planned or unplanned;
c) The deliberate killing of a woman known to be pregnant whether planned or unplanned;
d). The deliberate killing of a priest while that priest discharge his vocation or where the killing is motivated by the priest discharging his vocation;
e) A killing where the killing is motivated by the race, gender or sexual preference of the victim (the hate crime category).
The government by not consulting at all before releasing this wave of legislation on the Bahamian people did a great disservice to jurisprudence of this country and the people as demonstrated by the glaring omissions in this legislation that all would agree is already overdue. A mere period of consultation that could have been conducted over the period that the Prime Minister first indicated that this legislation would be forthcoming and now would have resulted in a better product than the product presently before Parliament.
The Dangerous Drugs (Amendment) Bill
1. The same issue of constitutionality arises with regard the range of sentences introduced by this Bill for drug offences.
2. There is also an additional issue that it is clear that Magistrates are being recognized as trying serious cases. Article 20 of the Constitution of the Commonwealth of The Bahamas provides that the citizen has the right to be tried before an independent and impartial court when charged with a criminal offence. There are a number of recent cases that hold that in order for a court to qualify as independent and impartial the judicial offence has to have security of tenure. Our Magistrates have no security of tenure. It is, therefore, recommended that given that these bills make it clear that Magistrates are dealing with serious cases and will reopen that line of challenge and that the government immediately legislate to provide security of tenure for Magistrates to avoid a potential successful challenge to the ability of Magistrates to hear any criminal matter.
Customs Management Bill and Pawnbrokers Bill
1. Both Bills are necessary and are long overdue. The government has reacted very slowly to regulate these industries that boomed during the economic downturn in circumstances where schemes of regulation exist in many other countries. We are not reinventing the wheel here. We are simply adapting it to meet our circumstances.
Bail (Amendment) Bill
1. The legislature cannot dictate what is a reasonable time to the courts. There are a number of cases that indicate this.
2. This Bill highlights the need to give Magistrates security of tenure in order to avoid challenges to Magistrates pursuant to Article 20 the Constitution (see above).
3. This Bill highlights the admission by the government that it cannot try serious cases in less than three years, notwithstanding the current waste of judicial time occasioned when cases collapse or do not come off. The focus should be on trying persons in a truly reasonable time.
Sexual Offences (Amendment) Bill
1. The same comment on mandatory minimum by a range applies here.
2. The same comment on the meaning of life imprisonment applies here.
Court of Appeal Bill
1. It is questionable whether Clause 2 of the Bill is constitutional. In the UK, this is the process of the Attorney General’s reference that permits the Court of Appeal to state the law, but does not permit it to set aside an acquittal. Clause 3 is already the law now and this adds nothing new.
Criminal Procedure Code Bill
1. The increase in the Magistrates sentencing power reinforces the need to give them security of tenure.
2. Clause 5 is good, in that, it means that the firearms licensing officer need not waste time coming to court, but can state the fact of the license in a report.
1. The Bill accomplishes something that is inoffensive. There is a potential of cost saving, but a danger that overuse risks a potential of losing the quality of the human presence.
2. There is a need for care in controlling the environment on the other end of the video link.
3. This Bill can be supported, but it is not a game changer in terms of transforming the procedure in criminal trials to reduce the time taken and increase the efficiency of the process. It is a disappointment in this sense. It is not the sort of game changer we advocate like legislating to enable judges to have evidentiary hearings ahead of the empanelling of jury and the beginning of trials.
1. The mandatory minimum raises the same issues of constitutional of minimum sentences and the need for security of tenure of Magistrates raised earlier in this paper.
2. The mandatory minimum sentence of four years applies to persons, who had a license for a revolver, shotgun, rifle or ammunition, but didn’t license it in the six months grace period.
3. Clause 11 creates an offence of possession with intent to supply firearms, but unlike the similar provision of the Dangerous Drugs Act there is no greater punishment for possession with intent of firearms than there for simply possessing firearms. This is wrong in principle; the supplier should attract greater punishment than the possessor.
Mr. Speaker, I was extremely disappointed that there was no mention in the Package of Crime Bills by the government that spoke to illegal immigration. There is no doubt Sir that the influx of illegal immigration contributes to a certain extent to the crime problem. Indeed Sir, some of the illegals that are here were criminals in their own country.
I would have thought that the Government would have amended the laws to include the offence of “Harboring of Illegals.” An offence of this nature would ensure that persons who rent, lease or allow illegals on their property will be held liable to a fine and/or imprisonment or both. It is also a known fact that shantytowns are throughout New Providence and The Bahamas. Nothing is being done by the Government to eradicate these shantytowns. Many of the shantytowns are known to harbor criminals; they are breeding grounds for crime and illegal activity. What is the Government doing about this?
Responsibility of Parents
Drastic times require drastic measures. Sir, there are many crimes committed by persons under the age of 18. Many parents are “donors” rather than real parents. They do not know whether their children are in school, they do not participate in their children’s’ education and at night, they do not know where their children are. In other words, the children are left to their own devices. There is no guidance by the parents! Harden criminals usually start young, with petty crimes. The government should have given serious consideration to making parents responsible by way of fines for criminal acts committed by their under-aged children.
For the life of me, I do not know why the Government did not consider the introduction of a national service. This, Sir, in my view would have an immediate everlasting effect on many of our young men who are not presently employed.
National service should apply to persons who are unemployed and those who are not able or willing to further their education.
National service would serve two purposes: those men, in particular those on the blocks and idle, would be put in a program that would teach them a trade, transforming them into productive members of their society. They would learn how to respect other people and other people’s property.
Secondly, Sir, in my view, this is a necessary step that this country must take to reduce crime and improve young Bahamians’ way of life!
Laws Relating to Dead Beat Dads
Single mothers in this Bahamas are at a disadvantage in the courts. They are in a position where, more often than not, children are with them and the fathers neglect and/or refuse to support the children. This is a disadvantage to the children, who suffer because of lack of support by the father. The Government should look at the laws relating to child support and put more teeth in them.
It is my view, that the Government should consider, after consultation with the relevant persons, authorities and the public at large, whether handguns should be issued to certain people. Indeed, Sir, today there are certain people (i.e. businessmen) who have handguns. Sir, there should be regulations that allow certain people to carry handguns and this should be considered by the government. Today, the Prime Minister makes the decisions as to whether people can carry a handgun.
Sir, I heard nothing from the Government, which I thought was fundamental to crime prevention, that certain principles be taught from young in the schools. We need to bend the tree while it’s young Mr. Speaker. It must be mandated that children be taught right from wrong, children should be taught to love your neighbour as yourself, respect, courtesy and how to be your brother’s keeper. This Sir is necessary.In addition Sir, truant officers should be reintroduced immediately.
Management of the Administration of Justice
Management of the Administration of Justice is perhaps the main reason why there are delays in the Court system. The Government has not informed us how the Management of the Administration of Justice will be improved. You see Sir, you can amend, appeal, revoke, legislate in relation of crime all you want, but if the management of the Administration of Justice is not dealt with (and left in the same position) I find it difficult to see how the implementation of these amendments will be effective if we still have poor management of the system.
Political Leadership has a pivotal role to play in the way young men, in particular, react in their day-to-day life.
When men watch our Parliamentary Channel and see the disrespect displayed towards members, it is not a good example. You must lead by example! When you carry on like a bully what do you expect from the young men watching? When you try to intimidate others, what do you expect from the young men watching? When you display anger, what do you expect from the young men watching? When you show disrespect, what do you expect from the young men watching? The fact of the matter is that some political leaders are bad examples and that transcends into the community.
Indeed Sir, I would encourage political leaders to be good examples for our young men to emulate. But Sir, I also realize that you cannot teach old dogs new tricks!
Part IV: Crime Fighter - Renewing the Vision
My good friend, the Member for Mt. Moriah, constantly tells us that many of these crimes, particularly killings, are committed by people who have problems controlling their anger; so we put in place measures to control the anger for them, but we do nothing to find out why they are angry. Even now, we go to great efforts to enact laws and measures so that we can control the criminal characteristics of our people, but we do not put in the same effort, as governments, to finding out the root cause of these negative characteristics. Despite law on top of law on top of law, nothing changes. WE keep doing the same thing over, and over and over again, expecting to get a different result. And when these things do not work, we say, don’t ask us, we are not doing the killing and the stealing. We say, if you want answers ask the sociologists and psychiatrists.
The Member for Carmichael said in the conclusion to his presentation, “the problems being experienced today did not suddenly come upon us and they were not thrust upon us from outside The Bahamas. We are, today, reaping the rewards of our own inabilities, inattentiveness, incompetence and indiscipline—the seeds of which were sown many years ago.” But not only were they sown during the drug years of the 70s and 80s, they were also sown in the 90s and the 2000s.
I will paraphrase Martin Luther King and say that as a result of long years of oppression and feelings that everything is backing up, because leaders have stop checking for them. A good number of Bahamians have become so drained of self-respect and a sense of “somebodiness” that they have given up on their dreams, become complacent and settled for almost anything; the resulting bitterness and hatred for having to settle, nourished by their frustration over continued discrimination and disenfranchisement have caused many to turn their anger against society.”
Mr. Speaker, I can safely say that over the past nine months, many of us have watched our country and our lives slowly slip into chaos and disarray. From the disastrous street-work mess that has turned our island into a maze of confusion to the, somewhat, embarrassing devaluation of our country’s economic worth and standing, it would appear that we, as a people and a nation, are sailing in stormy seas on a rudderless and captain-less ship. Abandoned by leadership, society as a whole is left on its own to fend for itself.
Frustrated on all levels, thrown into chaotic disarray with no one to turn to for help, for guidance and for protection, the people, it seems, are now taking matters into their own hands, trying to survive.
For many of us, as law abiding, good citizens, we no longer feel safe and secure inside or outside our homes and our streets, and our neighbourhoods have become like the Wild, Wild West—taken over by unfeeling criminals and people carrying out vigilante justice.
Again, Mr. Speaker, the Democratic National Alliance holds firm to its belief and its position that neither the Free National Movement (FNM) nor the Progressive Liberal Party (PLP) has any practical solution to our crime problem. The plans that we have gotten from them both, for the most part, amount to miserably misguided, unimaginative and uninformed attempts at rewording or rebranding past failed policies, with none truly seeking to address the root of the issue.
The turn around for our nation, Mr. Speaker, is not going to come as a result of the number of penal codes we put in place, you know. Sad to say, it may not even come with national calls to volunteerism. The turn around will only come with proper and effective administration and management of the country’s systems of social protection and job creation initiatives that will empower people to take care of their own personal needs.
And even this Mr. Speaker, for all we may wish, will not come as long as we have the present leadership that we have in place. For too long they have been in cahoots, playing a terribly divisive game of politics that have divided us as a nation and as a people.
I say to you today, Mr. Speaker, for us to see any turnaround in this crime issue the people must get the feeling that we are once again on the road to progress and for progress to continue in The Bahamas, there is going to be a need for real change from the petty partisan politics that was on full display last week by the Member for North Abaco.
Sir, I am in this position today, because I recognized that there was a void in visionary leadership, I recognized that there was a crisis in leadership, so I took up the charge. I did not enter this race to become the next Prime Minister of The Bahamas so that I could come in the people’s house of business to squawk, cackle and play around like one would expect of leaders in a banana republic. I came into this race, because I wanted to present the Bahamian people with a new kind of leadership, a new 21st Century progressive kind of leader and leadership that would seek to unite rather than to divide; one who recognizes that the scourge that we are here discussing and debating today is primarily the result of a nation left to fend for itself.
In closing Mr. Speaker, I say the Bahamian people need new leadership, because like in the late 70s and 80s, we now have a crisis in leadership and we must be guided through these tumultuous times. The world is changing around us, Mr. Speaker, and in order for the Commonwealth of The Bahamas to keep up with what is taking place globally, we need a new kind of leadership who can help us compete on the global stage.
Like I said several times earlier, the push for majority rule and independence promised us that we would be owners—owners of our lands and owners of our destinies. However, this progress has been hindered because successive leaders, since Sir Lynden, have disregarded good ideas from that era and good ideas from each other. But Mr. Speaker when good ideas, compete against good ideas, great ideas lose!
When I moved into Bamboo Town as that constituency’s representative, I intentionally used the color olive green on the sign at my headquarters and whereas some may have perceived this to be my beginning push to move away from the FNM, I saw this as my beginning push to unite Bamboo Town. I relied on my early childhood values to give me the wisdom to recognize that before I was an FNM, I was a Bahamian. I wanted the residents to know that I was not only the representative for the FNMs, but I was also the representative for the PLPs, NDP, BDM and any other resident of Bamboo Town. My aim was to create a community, not a constituency.
Again, Mr. Speaker, our efforts in fighting crime and criminality will call for this same kind of leadership, one who recognizes that we are not islands made up of FNMs, PLPs, DNAs or NDPs, but that we are islands of Bahamians who make up the great Commonwealth of The Bahamas.
No longer should we or can we continue to allow partisanship—encouraged by disingenuous leadership—to drive a wedge between us as we try to get back to creating ONE BAHAMAS, a 21st century, 1st world Bahamas, where people are the most precious resource, where prosperity is measured by the quality of the health, education and the social environment, and the self-esteem of the people; where individual and corporate productivity are synonymous with self-worth and where the love of work is esteemed as a national obligation; a Bahamas where economic diversity creates a broad spectrum of opportunities to challenge all the rich, creative talents, gifts, abilities and ingenuity of the people.
Embedded in these ideas left unfinished by Sir Lynden, Mr. Speaker, are the solution to our crime problems; Embedded in them are the solution to our educational problems, Mr. Speaker; Embedded in these ideas, are the solutions to our health and economic problems. In these ideas, Mr. Speaker, are the vision for creating a ONE BAHAMAS, where people are first again. ONE BAHAMAS, Mr. Speaker, this is the meaning of real change; change we can believe in.
I thank you Mr. Speaker, and unless something pressing comes up, I hope that I will not have to mention my worthy opponents North Abaco and Farm Road again. In my effort to become a more self-disciplined leader, I constantly remind myself that this election is not about North Abaco and Farm Road, but about the Bahamas and Bahamians, particularly our children, their children, and their children’s children.
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