The present-­‐day Bahamas is marked by an era where swift-­‐paced technology exists hand in hand with a disintegrated historic district of a once sweet town called Nassau. Sensational yearnings for the years of the Nassau Beach Hotel, of sophisticated Bahamian musicians, of a stylishly-­‐blended racial society are all cravings of a lost past.

Sentimental evocations of the well-­‐spoken, refined Bahamian with the clean yard and open gate who attended church together each Sunday morning and gathered over lavish communal feasts are almost stuff of the past. Replacing these nostalgic remembrances are ghettoed inner-­‐city streets, broader communities of strangers living together from Haiti, Jamaica, Cuba, The Phillipines, China, South America. Native Bahamians have the iPad in the right hand and the wedding band from their ‘foreign’ counterpart in the left. Nowhere in the melee of civil service is there a quiet stream of paperwork to integrate this new reality or to lend protection of civil rights to a society more and more looking like a police state.

With crime burgeoning, the police force has been expanded. With a laissez-­‐faire society giving broad freedoms to undocumented groups, the communications industry has been virtually handed over to a foreign power. With the printed media cowering further and further under the capitalistic hand, a truly oral society gyrates itself into hysteria on the airwaves. Dominant political parties describe themselves in their campaigns by colour (much as a sports team would with a mascot): “sea of Red, Gold Rush, Go Green.” The crowds are stirred up by the hype and excitement and free gifts of the rallies even to the point of the children being swept into the fray. There is a great deal of wealth at stake in winning the election.

The question is what question are we going to ask: Option 1.) What does the country need? Option 2.) What do Bahamians need? Globalization and intermarriage have now blurred the lines of whether ‘Bahamians’ as a term now means merely ‘those who reside here’. For the transcontinental visitor or expatriate who work and live here, these considerations are amusing for they come from societies almost fully globalized decades ago. However, for the local Bahamian and for the aspiring politician, the discussion has never been properly aired the degree to which Sir Lynden Pindling cloaked the country from 1967 to 1992 in a mantle of protectionism, covering even the government records and paperwork trail.

No outside power or government or entity would have had an easy time under Pindling executing any degree of espionage or surveillance of this Bahamian society or economy without actually coming into the Bahamas and facing the maze of bureaucracy required to “get papers” here even if he or she had married a Bahamian. Nassau society was so intimately familiar even up until about ten years ago that you could drive the streets and know who you were seeing in the vehicles coming to and fro. With the advent of globalization, the traffic change of Bay Street to accommodate Atlantis, the accelerated pace of the city life and the computerized identity, this society was transformed overnight. There is only one man who can take credit for this new, unrecognizable society, and for that he is now asking us, “call me Papa!” He has certainly earned that title, except, he could just as easily have quipped, “call me Big Brother.” He knew up until recently that if the accusation was raised against him that he had created a super-­‐power-­‐state via technology and laws far removed from the ambit of the ordinary Bahamian, he could easily have accused the only real power grouping of having wielded that same sort of force against its people under the Pindling years. And that would have been the Achilles Heel of the opposition.

So the government’s big guy and the opposition’s big guy are at a private impasse: no one gets to talk about the size and might of the state (now and then) because the stakes are too high for either side. The only individuals and groups enlightened enough in law and policy to confront the government cannot do so directly because their commercial interests are tightly roped together in this little town. The best lawyers are needed by government for their expertise in macro-­‐economics so they can barely take that energy and protect the little people.

Enter the new political contender who has both the legal and political might (and insider knowledge) to blow the government and opposition propaganda myths right out of the water. He knows a lot but his challenge is that he doesn’t have the personality to tolerate leadership types around him for the most part. Therefore, he has only one other strong-­‐man where he might have needed a dozen to really break the walls of Jericho in this battle.

Can we talk about “people power” with a straight face? In The Bahamas we have the tiresome challenge of real trench work being left-­‐off by the major parties. More and more a political party is less about persuading your adversary or winning over a neutral observer than it is a new type of club-­‐grouping where everyone wears the same colour shirt and is seen together in the same places in the same, predictable manner. The educating of the masses that is necessary in constitutional matters of reform will take the kind of monotonous work hard to come by in this day and time when people are really struggling just to pay bills and get by.

In a society whose Constitution is an intricate document built on a model (Westminster) which should give us broad protections to interpret the separation of powers, the printed media which should provide an historical record of who stood up, who did not and who was silent, must be able to advance to a higher level so that we can educate our people on matters affecting their lives.

Never has the Bahamian citizen been so vulnerable to grave advances in lifestyle change with so little protection on a journalistic plane. Foreign editors and commentators making huge influences on this society would take decades to truly understand what the average Bahamian outlook and psychology of development represents. The tragedy is that they are writing for an audience primarily transcontinental, an audience benefiting from huge salaries and perks of living and residing in this country under an administration that benefits from expendable expertise in matters of national development of public Bahamian resources. It is easier for a foreign consultant to sign-­‐off on papers that approve the changing of a public area from one use to another, or from one style of lifestyle to another. A local Bahamian engineer or consultant might have words or opinions that are tiresome to the government just trying to get things done.

This election is about the average Bahamian truly believing that things have gone too far and that wide powers of the government to handle how roads and infrastructure and beaches and public spaces are changed, has taken a fork in the road much too unfamiliar. Never has this society become so unrecognizable to so many in such a swift period of time. The average Bahamian has a basic education and up until the recent recession, had spent most years of her or his life having travelled abroad regularly.

Our society is protectionist and nationalistic, yes, but that is not any excuse to regard us as provincial. Added to our frustrations in this massive global recession is the stark reality of our own resources being handled so roughly at a time when our hands are full just trying to feed our own families. The resentment against this present administration is real. Even the so-­‐called sure voters are switching to the new party. Also, the “band of independents” are going to effect the votes in microcosmic detail.

The greatest problem in the Bahamas today is that not enough of our professional class understands the constitutional realities that we enjoy in the Westminster model, in and of itself, with or without the Bahamian Constitution of 1973. Our vast body of attorneys is only now rousing from its slumber. This is a positive side-­‐effect of the recession. Our powerful Church presence in society is not knowledgeable enough about how the judicial decisions abroad are sweeping in the waves of a new world order. In my estimation, the Constitution as it stands now is a technical, administrative document. It tends to do more of the same: namely, to complicate and bureaucratize an already slow-­‐creeping system of government we have in The Bahamas.

Added to this problem is the huge size of the civil service. The opposition sees the writing on the wall that for each term in office that their adversaries gain, there is another body part of the bureaucracy lopped off by the governing party. The governing party can easily claim that they are making government more streamlined, but they are also in the process slowly putting to death the people-­‐ power-­‐grouping that steadily supports the opposition and that has real-­‐time-­‐ memory of the fight and victory of Majority Rule.

Meanwhile, any reference to Majority Rule can be met with the Cheshire-­‐grin of the governing body representatives who know just who the new “Majority” will be in a few short years. Not only can the governing party claim that they are streamlining government bureaucracy and not only can they smirk at the unspoken reality of the new majority, but they can also cleverly play into the hands of their –shall we say – suppliers of ready capital because these suppliers are notorious for privatizing government activities at home and abroad so that accountability is that much more difficult to monitor.

What would it mean if government activities were monitored? The new contender brings it in the form of the ombudsman reality of the Westminster system. It can also be accessed via the channel of the Commonwealth of Nations. If Bahamian society enjoyed a deeper understanding of the Westminster system, and the separation of powers on which the Bahamian Constitution is constructed, then the people who sit in power in our Government would not be as readily able to dispense with the checks and balances required for the handling of Bahamian public resources (both physical and economic). Protections as to how public resources are handled can be accessed more easily through the separation of powers mechanism of the Westminster system than via the bureaucratic strategy of the Bahamian constitution which is more procedural, more difficult to handle. The Westminster system has more broadstrokes in its outlook whereas our Constitution demands expertise. The reality is that the Bahamian electorate understands that resources are not being handled to their liking for the most part, but so many are loyal to the big parties that they want to assume their parties will tell them if something is going wrong.

We have gone from a society where beach access is at stake, to untouched coastline, to port containers, to fish and reef resources, to sand and aragonite and now we have jumped to oil. However, we don’t have the trusted representatives of our own local community at the table. What makes the new contender and his team almost tragic to me is that at a time when public resources are all but being given away, the new team is not made up of the individuals who have been in the trenches for years studying environment and resources.

There is energy and excitement but not enough expertise to face the powerful government and opposition parties. This is not to decry to the efforts of the new contender and his team; it is to remind him that there remain individuals out there that he will be unable to do without if he is to tackle these enormous issues of development and environment. Which brings us back to the discussion of the importance of the Commonwealth of Nations:

“Presently, of the states that are members of the Commonwealth of Nations, three are in Europe, twelve in North America, one in South America, nineteen in Africa, eight in Asia, and eleven in Oceania (including one suspended member, Fiji). There are six former members, four of which no longer exist as independent entities (but form part of current member states). The members have a combined population of 2.2 billion people, almost a third of the world population, of which 1.21 billion live in India and 95% live in Asia and Africa combined.” (Taken from Wikepedia)

It is obvious that the issues facing The Bahamas would be matched in many countries as globalization has affected us all. What a closer relationship with the Commonwealth countries might do is to inject a deeper discussion of law, civics, structural development of the political system and journalistic comparison on issues of sociology and religion. In a society such as The Bahamas we are in a quagmire: we are just next to the U.S. but in a system of governance well-­‐understood only by an elite few. Our young people are not primarily readers. Our court system is slow and cases are backlogged. We need a mechanism to keep the intelligentsia and the political groupings up to date on what can reasonably be expected via the courts. The court system needs to be communicated to an educated journalistic corp. The printed media must branch into the legal and theological spheres.

Right now, we are a few days away from a General Election that is being compared in importance by many to the 1967 elections. There is the amazing tension being felt on the streets, and even some physical conflict. What is different is the dumbing–‐ down of the masses, the crude references to physical appearances, the trivial content of political speeches at the rallies, the grave generalizations made about representatives now in the House of Assembly by young Turks who are dismissive of the long road it took for those representatives to get where they are. There is overall a sad lack of understanding of the system we are in: namely the Westminster system.

Let me put it another way: most of the politicians are lawyers. They know full well how to deal with foreign governments, entities and the like. They know the structure of the system in which they operate. They know the constraints of the system. They know where the system will allow for economic exertion. They know that many of the entities they do business with can read the local Bahamian press and immediately assess that it labors under many a misapprehension. They know the voice of the reformers in The Bahamas and how swiftly the reformers are silenced. It might be said, they enjoy an eagle’s view.

However, life on the ground in Nassau ain’t so sweet. The foreign entities doing business here can sit back in their ivory towers and watch while we fight amongst ourselves. The once–‐passive, smiling, demure Bahamian visage is fast–‐slipping away. We have a slight window in this election to slip a few reformists into the Parliament. The best thing that can be done on the 7^th May, 2012 with anyone who enjoys the right to vote, it’s to vote for the best person. Forget Red, Yellow and Green. That’s the color of the candy wrapping. Open up that wrapping and what do you get? Probably diabetes. It is time for the voter to vote for the best PERSON on the ballot.

	Melissa K. Sweeting – Perecentie, is a student of the University of London and has a long history with the Church. She has a passion for Creative Art, Social Justice, and business. She is the mother of two daughters, Hannah and Omega.
For further information on all articles provided by Melissa Sweeting – Percentie, you may contact her via email at mellaw1970@hotmail.com or visit www.lexjustis.com

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(Article Begun 7^th of August 2011)

“No reference may be made to criminal proceedings from the time of the charge being made until the final appeal is determined.” [The sub judice rule]. {1 Const. Law Textbook p.113}

“…in society at large the closest approximation of the ideal of love is justice – a kind of rough – and – tumble working – out of rights that often involve conflict and coercion. According to [Reinhold] Neibuhr, the duty of every Christian is to work for justice in society, even though that is a less perfect norm than love.” {2. God’s People’s p.365}

“Although the men were not angelic characters, [the Bridgewater Four], (and two had serious criminal records) they strenuously protested that they were not guilty of the horrific child murder.” {3. T.E.L.S. Textbook pp.172 – 173}

HYPOTHETICALLY SPEAKING, if two men appeared before a Magistrate with bloodied noses, stuffed with tissue, wincing with pain in the course of proceedings, barely able to stand, and these men claimed that their injuries occurred while being taken into custody by the police, this would be a matter of public outcry for the Bahamian Church. If stuff like this really happened, it would bother leaders of the Bahamian Church. We know this can only be a hypothetical situation, since there has been little outcry from the church, no stamping of shiny shows in the pews, nor will there be, for the public is out for blood.

THE SUB JUDICE RULE prevents me from writing a personal, intricate work on the details of the scenario to which I allude. Try as I may though, to muster a less emotional response to convey my outrage. It becomes impossible without bringing forth the color of these men, their perceived ethnic origins, their claims of collusion, coercion, forced confessions, and so forth. My personal reverence for the rule of law keeps me from making this a human tale, with real faces, names, and a concrete story. Instead, I will have climb a ladder, and move to a place where I force myself to not see the faces, not think about the inferences of thuggery revealed within my own country’s sacred institution: the police. It is the extended fist of the Executive, comprising of the same flesh and blood as the wrist, elbow, or shoulder of that branch of government. I must climb the ladder, move to another place and seek a refuge in the ideal of the rule of law: the scholarly sanctum of what was once conceived as just, as right, and as the mark of a decent society. And in doing so, I believe that the leaders of the Bahamian Church – those whose hands are still clean and whose feet remain unsoiled, will rise to that place with me to address the ‘legalized thuggery’ we are witnessing day after day, week after week, and year after year.

AS IT IS UNLIKELY that cases of alleged police brutality are fully resolved in our festering legal system, the chances of discussing specific cases or analyzing cases become very tough due to the rule mentioned earlier. To cite one case but to be forced to omit two or three other closely related cases where court matters may still be pending makes silliness of a serious exercise in a rational comparison of cases. Then there are the cases which are most important but prominent figures are unapproachable for comment.

I have cited earlier the famous Bridgewater Four scenario because it takes us out of The Bahamas to a safe place (emotionally and psychologically) to think about this. It also takes us to a shadow corridor of the United Kingdom’s system where we learn that even in a developed country, the struggle to find justice is a challenge. Even with mega – resources, the system can barely rain in the ‘enforcing arm’ of the executive. Another angle is the period during which my sample discussion of the Bridgewater Case took place in 1979. In constitutional and legal terms, it is prior to the mind – changing, quicksand decision in the famous GCHQ case {4 citation}. There the courts essentially propped up the Executive branch to the place where it hovered over the British psyche as the official Big Brother. In 1979, the mood was still tinged with that moderate reckoning of the local constable as friend of the district court and the embracing arm of the community.

IN THE BRIDGEWATER CASE, a 13 year old boy, Carl Bridgewater, had been brutally murdered. Four men were charged: Vincent Hickey, Michael Hickey, Jimmy Robertson and Pat Molloy. These men became known as the Bridgewater Four {5. Ibid footnote in header}. It was 18 years later 3 men were released and the fourth, Pat Molloy, died while in custody. “Before he passed, Mr. Mollloy claimed he was in fact beaten by police officers during the course of his interrogation.” {6. Ibid, pg.173} Why were 3 of the 4 finally released? We can conclude that the following determinations contributed to the quash of the Defendants’ convictions:

• The Crown acknowledged the case against them was unreliable by “evidence falsified and fabricated by police officers.” {7.Ibid}
• Fingerprint evidence was not revealed to the Defence by the Prosecution at the time, and same was in favor of the men’s claims of innocence. {8.Ibid}
• Mr. Pat Molloy was questioned for 10 days straight with no legal counsel” {9. Ibid}
• During the course of this questioning, “a fabricated statement from Vincent Hickey was used to persuade Mr. Molloy to confess to the crime.” {10.Ibid}

THE TEXTBOOK REACTION to such injustice as the Bridgewater scandal is entitled, A Miscarriage of Justice in which six major observations, legal or technical, are made to red flag our journey on the road of the Criminal Justice System. It is as though Noddy is put – putting and toot – tooting his little car down the road and pointing out the signs of warning along the way, while highlighting legal red flags {11.Ibid, pp.173 – 174} such as: -

• The case occurred before police legislation had evolved sufficiently to require recording of interviews of obligatory legal advice for suspects in police custody, emphasizig the need for relevant legislation;
• Only because the families of the Bridgewater Four pushed hard with the help of some dogged journalists and courageous MP’s did the miscarriage of justice becomes public;
• Too often the actual killer is still at large and in this case may have committed other atrocities over an 18 year period;
• Even the modern legislation (Criminal Procedure and Investigations Act, 1996) still failed to force the prosecution to reveal certain evidence pertinent to the defence;
• The committees charged with investigating the travesty (such as the Criminal Cases Review Commission) too often have to rely on the police evidence and cannot procure independent investigators;
• A sound jury can be put in an awful position (i.e. the foreman of the jury from the 1979 trial risked prosecution for contempt of court by issuing a statement saying that he thought that the men were not guilty). {12.Ibid}

MY STARTING POINT for the leaders of the Bahamian Church is simple: do not excuse immoral acts of thuggery out of defence to the Executive arm of government. Why? Because even in highly developed countries with mega – resources, the challenge is how to draw a balance between keeping the public safe by empowering the police, by passing laws relevant to a society’s real needs, and empowering the judiciary to make tough decisions in the course of protecting the rule of law. In Bahamian society the latter is challenged by constant political interference. A further challenge to controlling police brutality is the lack of resources for offenders to be held (if prosecuted) away from a general prison population.

THERE HAS BECOME TOO FAMILIAR in the Bahamian media scenes of the bewildered shackled young man with a stunned expression when he is being dragged away. Time after time, the media reports that the young man has claimed that he was beaten while in custody. His lawyer makes a protest, the judge allows a doctor to examine him. No more is heard about it. It is as though his rights have been swallowed up in a sea of gooey blood which is our increasing crime problem. However, never is the young man from a prominent Bahamian family. Too often he is an ‘unknown’ in Bahamian circles of the families that ‘matter’. It is assumed he must be one of the dispossessed of mixed ancestry who was born to an illegal. Bahamian families are clogging our ears to the reality of how much these men matter to their own families and communities, our silence thus contributing to rising levels of atrocities.

Even in prominent murder cases of unspeakable violence, when certain young men have been charged and have vociferously claimed innocence and made statements to the media about police brutality and questionable practices on gathering confessions or evidence against him, still no sound from the Bahamian Church, as if drowning in a sea of blood.

***********

IN THE MIDDLE OF THE NIGHT I hear the sirens and car chases while I lay in bed. My daughters are fast asleep, dreaming about iCarly and Victoria Justice, of going to Disney World. They are dreaming in colours of pink and purple, or as they put it, “the colors of royalty.” Never in their wildest dreams could they imagine the world I grew up in Coral Harbour with the casuarinas trees whispering secrets to each other while we slept; a world so safe we could walk down to the beach as a family in the moonlight, carrying our own firewood and marshmallows to roast on the shoreline without fear of violence. A world where the shoreline was ours as Bahamians, where we could drop off anywhere into the cool ocean in the summer heat; where we knew who we were, and that this was our land.

BUT EVEN THEN, the crime was growing in the Bahamas. Go to the police reports of the early 1970s and you will find an alarming spike in murders and other serious crimes, I have studied them myself so I know that this is true. Those who held the proverbial shell of the future up close to the ear could hear the warnings of what was coming. Now I put the shell of the future to my ear and can barely hold it close, can hardly bear what events of today infer for the Bahamas of tomorrow.

THERE IS A POPULAR INCANTATION heard by many through the years, “I was silent when they took the Communists. I was silent when they took the… I was silent when they took the… When they took me, there was no one…” We may be allowing an arm of the executive to grow ever swiftly in power and thuggery. No amount of public posturing by leaders of the Police force can alleviate the growing anxiety among the intelligentsia that the police are becoming less and less accountable. Even the media is vulnerable to being intimidated if they examine the wounds of the victims by doing in – depth analysis of police brutality cases. Nor does one hear voices within the Police Force standing up against brutality within the Force which probably means that the institution could be structured similar to a political party whose members (once elected and in Cabinet) are bound by constitutional convention to stand silent and take the party line or jump ship. It is incumbent upon courageous people in society to stand up to this distressing trend. I am calling on the Bahamian Church to address this issue until police violence is eradicated entirely, even if it takes five, ten, or fifteen years.

One thing is certain, once brutality is exposed and the bullies have their faces and names plastered on the front page of the newspapers, then the tide will turn. The silence on our part as Bahamian Christians allows the perpetrators of injustice to weave their vehicle of violence madly down the streets, accelerating wildly on curves, running red lights, zooming through the amber warning. The bullies thrive on the shadows. Exposing them and bringing their deeds into the light is the only chance we have of defending the defenseless. “He has shown you, oh man, what is good and what the Lord requires of thee: but to do justly, and to love mercy and to walk humbly with your God.” Micah 6:8.

	Melissa K. Sweeting – Perecentie, is a student of the University of London and has a long history with the Church. She has a passion for Creative Art, Social Justice, and business. She is the mother of two daughters, Hannah and Omega.
For further information on all articles provided by Melissa Sweeting – Percentie, you may contact her via email at mellaw1970@hotmail.com or visit www.lexjustis.com

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Bahamian Law Firm Lex Justis Applauds New ‘Executive Entities’ Legislation As An Innovative Cutting Edge Product For The Country’s Financial Service Industry.

On the 12th of December, 2011 the Bahamas witnessed the first step in making the proposed Executive Entities Bill, 2010 as members of the House of Assembly approved a series of Bills that will benefit the nation’s financial service sector. The new law, once passed by the Senate, will establish the foundation for the incorporation and legal recognition of the ‘Executive Entity’ a new financial service product that demonstrates the nation’s innovation and commitment to maintaining its standard in corporate governance values, according to legal representatives of Lex Justis, a Bahamian based law firm.

Within the first quarter of 2012, legal representatives of Lex Justis are eager to provide the incorporation of ‘Executive Entities’ as part of its catalog of corporate services. The provision of this new financial service product will be made possible by the passage of the new Executive Entities Bill, 2010 into law.

As stated in the Executive Entities Bill, 2010 the overall objective of this new legislation is to provide the basis for the establishment of the Executive Entity as a vehicle to carry out executive functions in wealth preservation structures such as Purpose Trusts, Foundations, and Private Trust Companies. Executive Entities are defined by the Bill as legal entities established by a Charter to perform only executive functions set out in its Articles and has its registered office within the Bahamian jurisdiction. All Executive Entities will be required to be registered in order to become a recognized legal entity as demonstrated by the provision of Certificate of Registration.

The Executive Entities Bill, 2010 also calls for the name of the Executive Entity to end with the words “Executive Entity” or the abbreviation “EE” or “E.E” as the last two words of the name. The Bill restricted from including the names of traditional structures such as “Bank”, “Co-operative”, “Building Society”, “Insurance”, “Stock Exchange”, “Foundation”, or “Trust” or the abbreviation thereof.

“Just like any other corporate entity, Executive Entities will be able to sue be sued in their own names,” according to Attorney Mario McCartney, Principal of LEX JUSTIS, Counsel & Attorneys -at- Law. “Those individuals or entities who serve as officers or council members will be able to enjoy the benefits of limited liability while overseeing the activities of the wealth management structure.”

According to Attorney McCartney, Executive Entities may be utilized for a number of primary or supplementary purposes, ranging from serving as a protector or enforcement arm of a trust, a shareholder or investment advisor of a private trust company, or other functions that are executive, administrative, fiduciary, or office holding in nature. Although similar to a Bahamian Foundation, Attorney McCartney also confirmed that the Executive Entity differs substantially in that it is designed specifically to carry out executive functions and not to profit beneficiaries or for other wider purposes such as charities or educational scholarship program Executive Entities have no beneficiaries and only hold such assets reasonably required to carry out its executive functions.

“The key advantage of this new vehicle is the ability of the client to get a steady grip on the administration and security of his wealth by establishing an Executive Entity as its Founder and can appoint himself as an officer or council member or other individuals whom he can depend on to watch over his interests,” says Attorney McCartney. “Clients can now enjoy the benefit of having those he can rely on, administer his wealth even after death, without the fear of family bickering or other personal conflicts derailing his final bestowment. The Executive Entity vehicle is as close as you can get to engaging in the affairs a traditional Purpose Trust structure or other wealth management vehicle without breaching its legal and fundamental principles.”

Attorney McCartney further stated that similar to the formation of a Foundation, Executive Entity Charter will be required to state information about its Founder, Officers or Council Members, its registered office and its purpose, and may also include other provisions such as the Founder’s reserved rights or powers, the appointment and authority of its officers, council members and auditors, and the establishment of Articles for the Executive Entity. Similar to most incorporated entities according to the Executive Entities Bill, 2010 the Executive Entity will also be required to hold at least one meeting per year, keep proper accounting records at the registered office, and to ensure that all government fees paid.

The Bill also calls for members of the Executive Entity to appoint an Executive Entity Agent, which may also serve as an officer or as a council member. The main function of the Executive Entity Agents will be to formally accept service of all documents pertaining to legal proceedings involving the Executive Agent or to receive any formal notices and will also hold the same powers and obligations as an officer or a council member of the Executive Entity if it also holds those positions. According to Attorney McCartney only individuals or entities duly licensed as financial and corporate service providers or as licensed trust companies are qualified to be an Executive Entity Agent and must provide written consent to his appointment.

“The Bill also establishes a statutory based standard of care by the Executive Entity Agent in which it is required to act honestly and in the best interest of the Executive Entity. Ultimately the involvement of a licensed Financial & Corporate Service Provider supplements the overall attempt of the upcoming legislation to incorporate standard corporate governance principles into the framework of the Executive Entity by ensuring that at least one participant of the entity is entrenched in the standards established by Bahamian Law.”

Attorney McCartney further states that once the Executive Entity Bill is officially adapted into the Bahamian legislation all government and supplemental fees required for registering an Executive Entity will be published by the Bahamas Government and LEX JUSTIS will offer incorporation services for the Executive Entity. “Overall this new wealth management structure promises to boosts the island nation’s presence in the global financial service sector,” said Attorney McCartney.

About LEX JUSTIS

LEX JUSTIS is a boutique law practice and licensed Financial and Corporate Service Provider offering traditional legal services, corporate services and private client services in The Bahamas. We are committed to finding efficient legal solutions to the needs of our local and international clients. Visit our website at http://www.lexjustis.com or call us at   (242)676-4208 for more information on the incorporation of an Executive Entity or other aspects of Bahamian law.

	Mario L. McCartney is the Founder and Principal of LEX JUSTIS, a boutique law firm providing Corporate, Private Client, and Traditional legal services in the Commonwealth of The Bahamas. Mr. McCartney is also the present editor and main contributor of firm’s blog site and welcomes all opinions and comments to his articles.
For further information on all legal services provided by Mr. McCartney please visit the LEX JUSTIS website @ www.lexjustis.com or email him at mmccartney@lexjustis.com, mario.l.mccartney@gmail.com.

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I like what Keod Smith said near the end of the show, “at some point our professional class is going to have to get in there, roll up our sleeves, and attack some of these problems.”  The context was the inner city, the grave poverty and the way things are being left to drift into chaos.  Rashad Cooper shared how Alfred Sears speaking at St. Augustine’s College had impacted his life so long ago and he never forgot it when Sears had shared to the student audience that Iran was a theocracy. Something quickened the young man’s mind when knowledge of great relevancy was imparted to him in a mentoring format.

How fascinating that when the two elder statesmen were at an impasse at the table in their ideas, and based on their own
past experiences, the younger man was able to bridge the divide by encapsulating both schools of thought, dissolving them into a soluble tonic of coherence for the purposes of the discussion at hand. This is why Brian Moree was able to say, in the end, that this new, young Bahamian is the hope for the future.  He is learned, he is well-travelled, has lived at home and abroad and can see the greater vision for The Bahamas which his forbearers had struggled to achieve, from the days of the sloop and lighthouse to the present age of the Blackberry.

No, their struggles have not been in vain but as Rashad Cooper reminded us, the ghettoes are the manifestation of the disenfranchised among us whose voices and faces we push to the side. We do not wish to be reminded of what their cheap labour means for what we have become in this country. My Christmas wish is that we might roll up our sleeves and all together now go in and save Over-the-Hill and cherish its light and shadow as the heart of where many of our freedoms were birthed.

*******

I pause now to tell an old story of Christmas which some of you may remember.  It is really a glimpse into another age, a reminder of the ideals which we once held in common in this country and which truly guided us as a Christian people. It is an excerpt from Little Women, written by the renowned Louisa May Alcott.

A bang of the door sent the girls to the table eager for breakfast.

“Merry Christmas, Marmee!  Lots of them! Thank you for our books; we read some, and mean to every day,” they cried, in chorus.

“Merry Christmas, little daughters! I’m glad you began at once, and hope you will keep on. But I want to say one word before we sit down.  Not far away from here lies a poor woman with a little newborn baby.  Six children are huddled into one bed to keep from freezing, for they have no fire.  There is nothing to eat over there; and the oldest boy came to tell me they were suffering hunger and cold. My girls, will you give them your breakfast as a Christmas present?”

They were all unusually hungry, having waited nearly an hour, and for a minute no one spoke; only a minute, for Jo exclaimed impetuously, – “I’m so glad you came before we began!”

Of course, the story goes on to tell how they relieved the wretched, impoverished family with their tangible act of kindness.  They, just like us Nassauvians, cared everything about appearances, “and, they went through back streets, so few people saw them, and no one laughed at the funny party.”

In so many ways, Nassau is still a Town; but it is trying so hard to grow up into a City (on other people’s terms, I might add!) with no coherent, locally-devised developmental plan of who we are and ‘from whence we came’.  This is the overriding issue that is tough to tackle.  It means we would all have to come together. What better time than Christmas and at what better place than Over-the-Hill, where the fight for social justice was spawned in the heart of the churches so long ago? I am calling on the pastors to unite the churches this Christmas.

I am calling on the women to disallow this new conservatism that is cropping up everywhere, taking our energies but disqualifying our ideas. The church needs to give the women free reign to tackle the ghettoes.  These issues are issues of sanitation, hygiene and all the old demons of poverty and squalor that it takes a woman to look in the face and destroy them!

The church is guilty of silence and therefore collusion.  Preaching Christ-crucified, Christ-crucified, Christ-crucified is not going to cut it.  Preaching Liberation Theology, Liberation Theology, Liberation Theology is not going to cut it. Preaching Kingdom Principles, Kingdom Principles, Kingdom Principles is not going to cut it. How about preaching Landlord and Tenant Act, Landlord and Tenant Act, Landlord and Tenant Act? How about preaching Health Regulations, Health Regulations, Health Regulations?  How about something real and tangible and relevant?I give the practical example often when discussing Nassau’s ghetto:  if you see outer walls blackened with mildew and mold (and they are in the open sunlight), God help you when you see the inner walls of that structure, especially the bathrooms and kitchens. The conditions under which the tenants are suffering cannot be ignored any longer.  Negligent landlords should be lined up and shot by firing squad for taking these people’s money and leaving them in these conditions.

********

I like the emphasis that Scripture gives to the fact that the Christians at Antioch decided to give help to the brothers living in Judea.  They didn’t just debate the issue (sometimes a subtle way of postponing matters); they decided it. One critic of Christianity has said: ‘The Christian Church is more at home in dialogue than in decision.’ Though this statement may not be entirely true, there is enough truth in it to sting.I would like to close by quoting from a devotional written by Selwyn Hughes (edited and updated by Mick Brooks) entitled, “A Caring Society.” [Every Day With Jesus Devotional July/August 2011], Scripture Reference is Romans 15:14-33.

Can we turn things around, as Keod Smith suggested, by rolling up our sleeves and getting into the ghettoes?  I believe so.  I believe it is obvious that we need to do so.  All hands on deck!

*******

I would like to announce to my readers that I will be running a twelve-part series, Lord willing, for the entire year 2012.  The topic:  Why the Bahamian Church Should Care About Police Brutality.   For now, Merry Christmas & A Very Prosperous, Peace-filled, Happy New Year!

	Melissa K. Sweeting – Perecentie, is a student of the University of London and has a long history with the Church. She has a passion for Creative Art, Social Justice, and business. She is the mother of two daughters, Hannah and Omega.
For further information on all articles provided by Melissa Sweeting – Percentie, you may contact her via email at mellaw1970@hotmail.com or visit www.lexjustis.com

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Moors Island was first settled by Free Blacks, African Slaves, Black Slaves, Plantation Owners, beginning in 1817, crops that were produced at that time were cabbage, cassava, corn, grapefruit melon, orange, papayas, peas, potatoes, pumpkin and sugarcane. During the plantation economy – a system of minority rule – Free Blacks and Black Slaves had their rights restricted for a period of 21 years, until slaverywas officially abolished in 1838. The first settlers’ legacy is preserved in common family names on the island, such as Davis, Hield, Knowles, McBride, Simms, Stuart and Swain. Joseph Curry’s Plantation commonly known as “Teh Sinket” to the locals was a former orange plantation. In Hard Bargain a few yards from a shrubbery area where residents live there is a former plantation site now known as “Minangi Hill”. Another former plantation site commonly known as “Sun Ground” by local residents is located north of The Bight, north of the old well field.

The 1932 Bahamas Hurricane (Category 5) devastated Bluff Point, Abaco which caused persons to move to MoorsIsland. Some of settlers of Bluff Point, Abaco moved to Murphy Town in 1940. The 1932 Bahamas Hurricane legacy is preserved in common family names on the island, such as Davis, Swain, Curry, Dawkins, Knowles. The inhabitants of Bluff Point survived of fishing and sponging. The settlement of Bluff Point is located south of Sands Banks.

Moors Island traditional survived by living of the land and fishing. To this date there is a strong love for the sea and a respect for its bounty. Locals often traded what they caught or what they could farm with neighbouring islanders or visitors for water or other goods, which could not otherwise be obtained. Negotiators were often led into a “hard bargain”. Before the advent of modern stoves residents used rock ovens made from local stones. Potable water, naturally scarce on island was made readily available through the arrival of the water plant (condenser) before this residents traveled to Cay Gorda and collected water using 55 gallon drums (plastic and metal) originally used to store gasoline. These drums where imported from Nassau, BHS. Residents also relied on rain water catchments to supply the water needs by way of five(5) gallon buckets and the 55 gallon drums (plastic and metal) as well from the big well by the school. This was as late as to 1990s.

 St. Peters Church located was located nearby Rolle’s Dock and was the first church on the island built before c. 1939. Regular sea transport services between mainland Abaco Island and Moors Island began in 1951, initiated by Capt. Ernest Dean. The inauguration of the supply of electricity in Moors Island was made possible by the Bahamas Electricity Corporation (BEC) in 1991. The school was built before 1988. Students regularly swam in the big well by the school. Before 1963 there was no government medical clinic on island.

Short Stories:

Being in a cave during Huriricane Bethsy (cat 4 storm 1965), use to be fun. We [Moors Islanders] stayed in a cave during the storm. The only thing the cave had was an ocean hole (known to other parts of the Bahamas as a blue hole) and to keep the children away for falling into the ocean hole, the adults told terrible stories of mermaid pulling us [children] in. Moors Island has a lot of ocean holes, some of ocean holes are level with the ground.

Genealogy of Settlers:

The recorded genealogy of Moors Islanders traces back to the 1800s. Although there is no strict legal or formal definition of who is or is not a Moors Islander, the list includes different people who have settled on the island. To this date their descendants live on island. Moors Islanders can trace their ancestors for Andros Island, Crooked Island, Eleuthera Island, the Exuma Islands, Long Island, and the Turks and Caicos Islands.

The Moors Island Residents Committee is a group of Bahamian citizens who have dedicated their efforts to the preservation and promotion of the rich, unique heritage of Moors Island, the largest cay of the Abaco Islands. The primary ambitions of the Committee is to educate Bahamians on the island’s history while assisting in the organization and overall use of the island’s real property. Overall the Committee’s focus is on the improvement of the quality of life of its inhabitants.

For further information on the Moors Island Residents Committee please visit their facebook site at http://www.facebook.com/groups/171050552974820/

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And ye, who have met with adversity’s blast,
And been bow’d to the earth by its fury;
To whom the twelve months, that have recently pass’d
Were as harsh as a prejudiced jury –
Still, fill to the Future! and join in our chime,
The regrets of remembrance to cozen,
And having obtained a New Trial of Time,
Shout in hopes of a kindlier dozen.

-    Thomas Hood

We would like to take this time to express our greatest appreciation for our loyal clients that have both patronized our professional services. We will continue to provide legal services to the highest degree of professionalism. We will continue to share and educate the world about the laws of this paradise. We will continue to fight the good fight.

Thank You.

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Everyone knows of the ability of investigators to listen in on telephone conversations via wiretapping which is easily done by inserting listening devices into the telephone receiver or by installing similar technology into the landline’s mainframe. Needless to say these recent developments have demonstrated the notion that nothing should be deemed ‘private’. Any device used in the communication process, whether via email, text, or the old fashioned method of a sealed envelope can be accessed by the smooth and innovative ‘spy’.

The Bahamas, like most of its international neighbors, is not immune to this recent phenomenon. In fact, the average conspiracy theorist would probably indicate that communication piracy is an everyday occurrence, pointing alone to the wire tapping practices which local journalist have reported its use in criminal investigations on more than one occasion. Even local politicians are not immune to the use of surveillance tactics carried out by ‘political mercenaries’ whose main objective is to capitalize on information that can be used to uncover political strategies and to execute influential smear campaigns. Despite its longstanding existence, there lies a consistent failure of local legislation to properly address this complex endemic whose growth coincides with the developing pace of modern communications. Ultimately, there is no guarantee of confidentiality when it comes down to technology.

A Brief on the Inquiry Agents and Security Guards Act

In the Bahamas those engaged in the world of background checks, surveillance, and other forms of private investigation and security services are governed primarily by the Inquiry Agents and Security Guards Act. While the Act provides a general definition of a security guard (i.e. a person who, for hire or reward, guards or patrols for the purposes of protecting persons or property), Inquiry Agents are defined by the Act as “a person who for hire or reward searches for and furnishes information as to the personal character and actions of a person, or the character or kind of business or occupation of a person”. Furthermore The Act does not apply to:

• Counsel and attorneys in the practice of their profession, or to their employees while acting in the usual and regular scope of their employment;
• Persons who search for and furnish information (i) to the financial credit rating of persons, (ii)to employers as to the qualifications and suitability of their employees or prospective employees, and (iii) as to the qualifications and suitability of applicants for insurance and indemnity bonds, and who do not otherwise act as inquiry agents;
• The Royal Bahamas Police Force or any person acting under the authority of any Act;
• Insurance adjusters and their employees while acting in the usual and regular scope of their employment;
• Insurance companies lawfully carrying on business in The Bahamas and their employees while acting in the usual and regular scope of their employment;
• Inquiry agents and security guards who are permanently employed by one employer on or in the vicinity of that employer’s premises in a business or undertaking other than the business of providing inquiry agents or security guards and whose work is confined to the affairs of that employer;
• Any class of persons excepted by the regulations.

In accordance with the Act, only Bahamians are allowed to work as an Inquiry Agent or Security Guard or engage in the business thereof and must hold a license which is achievable by satisfying the licensing authority that the licensee has met the minimum requirements (i.e. no previous criminal convictions, satisfactory character and competence, and financially able). Inquiry Agents and Security Guards are required by law to carry the license and produce it for inspection at the request of any police officer or other person having reasonable grounds to make the request. Security Guards are also required to wear a badge while on duty. The Act also prohibits the furnishing of false information by an Inquiry Agent or the provision of statements, impersonation of, or conducting any act calculated falsely to suggest that he is an inquiry agent or security guard with the intent to deceive.

From the onset the Inquiry Agents and Security Guards Act required immediate legislative updates in order to properly regulate the practical nature of investigative and/or research techniques conducted by Inquiry Agents. Although the Act prohibits the provision of false information by Inquiry Agents, the Act fails to address the very methods in which information is obtained, although other legislation may address the legal consequences of unethical activities carried out by Inquiry Agents. Section 35(7) of the Telecommunications Act for example, penalizes telecommunication licensees or their employees for the disclosure or use of “content of any message, information or documents that relate to the content of any message or the private affairs or personal particulars of any person that comes into the licensees knowledge or possession in connection with its business or providing telecommunications services”.

In similar fashion the Data Protection (Privacy of Personal Information) Act provides some form of protection in the disclosure of personal data by placing statutory obligations on “data controllers” (who are defined as a person who, either alone or with others, determines the purposes for which and the manner in which any personal data are, or are to be, processed) and penalizing individuals that obtain and/or discloses personal data (or any information constituting such data) without prior authority of a data controller. Further aggressive and unethical behavior by agents while in the course of conducting surveillance based activities may be subject to the legal confines of the Domestic Violence (Protection Orders) Act which, as of 2008, provides a clear definition of harassment which includes various forms of intimidation, stalking, deprivation of property owned or used by an individual, and the indulgence or engagement “in a pattern of behavior by a person that would or likely have the effect of undermining the emotional or well being of another”.

Although it is clear that the various legislation exists to addresses the parameters in which unethical and illegal activities may be conducted by an Inquiry Agent, yet it is obvious that their existence alone may prove ill-equipped to adequately prosecute the acts committed. The Telecommunications Act, while covering the act of “wire tapping” limits prosecution methods by applying its authority to licensees or employees of licensees, while ignoring individuals or entities that are not licensed under the Telecommunications Act. Furthermore the Act imposes a monetary penalty of $5,000.00 which, in its limited authority fails to impose a mandatory prison term. Similar limited exists in the Data Communications Act which imposes a monetary fine rather than a prison sentence. The penalties imposed for such purposes do not match the standards of most countries in which illegal acts committed by Inquiry Agents impose harsher penalties that may deter unethical conduct. Individuals or other entities participating in the Inquiry Agent business should be held at a higher standard of practice not only for the sake of protecting the reputation of their clients, but for the sake of upholding social morality.

Further legislative updates are also desperately needed for Security Guards in order to further protect the interest of the client and society at large. Although applicants are required to be qualified and competent for a license, there is a dire need to ensure that security guards are properly and regularly trained in order to ensure that their activities are conducted within the confines of the law. The establishment of a code of conduct emphasizing on the use of force to deter the criminal element for both Security Guards and Inquiry Agents would serve as a strong starting point for this growing industry. The use of force, as addressed in section 107 in the Penal Code, should be implemented into the proposed code of conduct and should also be amended to address the legal use of new technologies, such as electronic tasers, pepper sprays, and firing rubber bullets in order to protect the property of their client.

The numerous problems with legislative reforms in The Bahamas are just as perplex as the political machinery responsible for its implementation. Although the country has proven to improve its efficiency in updating legislation for its primary industries (i.e. Financial Services) for the sake of maintaining an international standard, updating many statutory instruments are left struggling to find its place within an ever changing society. As the News of the World incident remains fresh in memory, the country must properly engage itself in preventing similar tragedies.

	Mario L. McCartney is the Founder and Principal of LEX JUSTIS, a boutique law firm providing Corporate, Private Client, and Traditional legal services in the Commonwealth of The Bahamas. Mr. McCartney is also the present editor and main contributor of firm’s blog site and welcomes all opinions and comments to his articles.
For further information on all legal services provided by Mr. McCartney please visit the LEX JUSTIS website @ www.lexjustis.com or email him at mmccartney@lexjustis.com, mario.l.mccartney@gmail.com.

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The formation of a corporate vehicle is perhaps the first step for individuals interested in having some form of commercial presence in the Bahamas. For non-residents who are interested in benefiting from the advantages offered by the Bahamas, the formation of an International Business Company (or IBC) is an ideal preference, popularly known for its efficient and convenient incorporation process and for its ability to obtain a bank account from a local financial institution.

General

Generally speaking an International Business Company is a legal entity incorporated and holding its registered office outside the residential jurisdiction of its beneficial owner. In normal circumstances an IBC is prohibited from conducting business within the jurisdiction in which it was incorporated, however the it may conduct business within the Bahamian jurisdiction once obtaining approval from the Bahamas Central Bank. Other features of an IBC include preservation of confidentiality of beneficial owners, wide corporate powers to engage in different businesses and activities, and its ability to enjoy substantial tax benefits provided its home jurisdiction. IBCs are commonly used to conduct various investment activities and for asset protection purposes ranging from the purchase and sale of goods and services, hold bank accounts and managing business entities. IBCs are also commonly used for the ownership of chattels (i.e. vehicles, equipment, artistic paintings, etc.) and real estate, for ownership of intellectual property, licensing and franchising, personal service by individuals working overseas, e-commerce activities, and other business activities.

IBC Activities

According to the International Business Companies Act, IBCs are permitted to carry on any activity anywhere that is not prohibited by statute or any other law in force in the Bahamas. The traditional activities of IBCs is to conduct business outside of the jurisdiction in which it is incorporated, however Bahamian IBCs may conduct business with persons residing in the Bahamian jurisdiction once it has obtained approval from the Bahamas Central Bank in accordance with the Exchange Control Regulations with respect to its planned operations.

Administrative Activities

For those IBCs which conduct its business primarily outside the Bahamian jurisdiction, local legislation allows for activities which are fundamental for the IBC’s administrative activities. Although no financial reporting requirements exist, an IBC must keep certain documents, such as share register, minutes of meetings, and resolutions at the company’s registered offices in The Bahamas. Generally speaking an IBC is not considered engaged in business with persons residing in the Bahamas if:

• Creating or maintaining deposits with a person carrying on business within the Bahamas.
• Creating or maintaining professional contact with counsel and attorneys, accountants, bookkeepers, trust companies, management companies, investment advisers or similar persons carrying on business within The Bahamas.
• Prepares or maintains books and records within The Bahamas.
• Holds meetings of its directors and members within The Bahamas.
• Holds a lease of property for use as an office from which to communicate with members, or to prepare or maintain company books and records.
• Holds shares, debt obligations and other securities in an IBC or an ordinary company.
• Holds shares, debt obligations or other securities which are owned by any person, IBC or ordinary company resident in The Bahamas.

Traditional Activities

Bahamian IBCs have such powers as are permitted by law for the time being in force in The Bahamas, irrespective of corporate benefit, to perform all acts and engage in all activities necessary or conducive to the conduct, promotion or attainment of the object of the company. Traditional uses for Bahamas IBCs include:

• Owner of company shares or other legal entities;
• Holder of bank accounts, fixed deposits, and any other financial or commercial title;
• Borrowing or lending money, paying or receiving commissions, royalties or others;
• Owner of real estate and any other movable or immovable property or goods;
• Provision of, or obtaining Mortgages;
• Manager and promoter of international business transactions;
• International leasing of aircraft, vehicles, equipment and others;
• Marketing and promotion of products and services;
• Legal Rights of Inheritance;
• Asset Protection purposes;
• Emigration purposes;
• Other commercial and financial activities;

Prohibited Activities

In accordance with the IBC Act 2000, IBCs cannot be incorporated for the purposes of facilitating a criminal activity or activity which is prohibited by Bahamian law. Bahamian IBCs are not allowed to carry on banking, trust, or insurance business (save for the use of an IBC to conduct insurance activity under the External Insurance Act), nor are they allowed to act as Registered Agents/ provide a Registered Office for companies. According to the IBC Act 2000, only Bahamian licensed bank and trust companies and licensees under the Financial and Corporate Service Providers Act are permitted to act as Registered Agents for Bahamian IBCs. In addition Bahamian IBCs are prohibited to issue “bearer shares” and all bearer shares previously issued under the Bahamas International Business Companies Act 1989 are considered null and void and without effect for all legal purposes.

Registered Offices & Agents

As previously mentioned, only Bahamian licensed banks and trust companies and financial and corporate service providers licensed under the Bahamas Financial and Corporate Service Providers Act are permitted to act as Registered Agents of Bahamian IBCs in accordance with the IBC Act. At all times the IBC must maintain a Registered Agent and Registered Office within the Bahamas, the name and address of which must be submitted to the Registrar during the registration process. Should the Directors of the IBC decide to change its Registered Office/ Agent it is required by law to notify the Registrar within 14 days of the change and to provide the required information on the new Registered Office/Agent.

Resignation of Registered Agent

Should a Registered Agent decide to resign from representing the IBC and is unable to reach an agreement with the IBC regarding the Registered Agent’s replacement the Registered Agent may resign provided that the steps provided under Bahamian statute are followed. This involves the Registered Agent providing notice to the IBC’s Directors or Officers no less than 90 days to the IBC’s the last known address or to the individual responsible for the incorporation of the IBC, and providing written notice to the Registrar of the same. Should the IBC fail to provide the Registrar with information concerning the newly appointed Registered Agent the Registrar will publish a 30 day notice in the Gazette requesting that the IBC provide notice of the change of name and address of the Registered Agent and informing them of their intention to “strike off” the IBC from the Company Register.

If the IBC fail to provide the details of the newly appointed Registered Agent within 30 days, the Registrar will take the necessary actions to strike off the IBC from the Company Registry, unless there is reasonable cause to suspect that the a Registered Agent has died or has otherwise ceased to act or to qualify to act as a Registered Agent and the Bahamas company has not notified the Registrar of any change in the name or address of its registered agent, the Registrar shall serve on the company at its registered office a notice directing the Bahamian company to replace the registered agent.

IBC Share Capital

Shares in a Bahamas IBC may be issued for money, services rendered, personal property (including other shares, debt obligations or other securities in the company), an estate in real property, a promissory note or other binding obligation to contribute money or property, or any combination thereof. IBC shares may also be issued for such amount as may be determined from time to time by the directors, and in the absence of fraud, the decision of the directors as to the value of the consideration received by the company in respect of the shares is conclusive, unless a question of law is involved.

Ownership & Issuing IBC Shares

There is no minimum authorized capital for an Bahamian IBC or a minimum capitalization requirement. The standard authorized share capital is US$50,000.00, as this is the maximum authorized capital permitted for the minimum government license fee payment. The capital may be expressed in any currency. Subject to any limitations in its memorandum or articles of association or any other law for the time being in force in The Bahamas, a Bahamas IBC may issue:-

• registered shares but not shares issued to bearer;
• voting and non-voting shares;
• shares that may have more or less than one vote per share;
• shares that may be voted only on certain matters or only upon the occurrence of certain events;
• shares that may be voted only when held by persons who meet specified requirements;
• no par value shares;
• unnumbered, common, preferred, or redeemable shares; and
• shares that entitle participation only in certain assets.

IBCs may be partially or wholly owned by one or more persons or entities and Bahamian Residents may, on approved by The Central Bank of The Bahamas, act as shareholders. An IBC may also purchase, redeem or otherwise acquire and hold its own registered shares but only out of surplus or in exchange for newly issued shares.

Altering IBC Capital

A Bahamian IBCs may, by a resolution of directors, amend its memorandum of association to increase or reduce its authorised capital and in connection therewith the company may in respect of any unissued shares increase or reduce the number of such shares, increase or reduce the par value of any of its shares or effect any combination of the foregoing. Further amendments can be made to the memorandum of association to divide the shares, including issued shares, of a class into a larger number of shares of the same class; or combine the shares, including issued shares, of a class into a smaller number of shares of the same class, provided, however, that where shares are divided or combined the aggregate par value of the new shares must be equal to the aggregate par value of the original shares.

The capital of an IBC may by a resolution of directors be increased by transferring an amount of the surplus of the company to capital and may be reduced by returning to members any amount received by the company upon the issuance of any of its shares, the amount being surplus to the company or by cancelling any capital that is lost or not represented by assets having a practicable value. IBC capital may also be altered by transferring capital to surplus for the purpose of purchasing, redeeming or otherwise acquiring shares that the directors have resolved to purchase, redeem or otherwise acquire. The IBC Act further outlines the circumstances in which an IBC’s capital is reduced to minimal amounts, and the practice in which the Directors of the IBC must undertake in order to satisfy any liabilities encountered as a result.

The Shareholder and Director Register

The Bahamas IBC holds a high degree of confidentiality due to its limited filing requirements. The IBC Act only requires the name of the Company, its Registered Agent’s name and address, the company’s Memorandum and Articles of Association along with an imprint of its common seal and any amendments to be filed with the Registrar. The Registered Office of the IBC is required to maintain one or more registers known as Share Registers containing the names and addresses of the persons who hold registered shares of the Bahamas company, the number of each class and series of registered shares held by each person, the date on which the name of each person was entered in the Share Register, and the date on which any person ceased to be a member.  The Share Register is not publicly filed with any government authority, however the register of members must be kept and maintained at the Registered Office but is not available for inspection by the public.

The Registered Office is also required to maintain a current copy of the Register of Directors and Officers which must be filed with the Registrar. The Register of Directors and Officers must contain the names and addresses of the persons who are directors and officers of the IBC, the date on which each person was appointed as a Director or Officer of the company, and the date on which each person as a director or officer ceased to be a director or officer.  Any changes must be filed within one year of such changes.

Officers & Directors of Bahamian IBCs

Subject to any limitations in its memorandum or articles of association or in any unanimous shareholder agreement, the business and affairs of a Bahamas company shall be managed by at least one director who may be an individual or a company.  Directors are usually appointed by the shareholders, however there is no Bahamian residency or share qualification requirements to be a director of an Bahamas IBC. The IBC Act, however requires that all corporate books, records and minutes of meetings must be kept at the Registered Office and copies at such other places as determined by the directors or the Articles of Association. Bahamian IBCs are not required to have an annual general meeting of the members.

There is no requirement to appoint any officers of a Bahamas IBC. The Register of Officers and Directors must be filed with the Registrar within 12-months of their appointment and the Registrar must be notified of any change in the directors or officers of the IBC within 12-months after the change occurs.

Indemnification of Directors, Officers and Liquidators

In accordance with the IBC Act and subject to any limitations in a Bahamas IBC’s memorandum and articles of association or in any unanimous shareholder agreement, a Bahamas IBC may only indemnify a director or officer against all expenses, including legal fees, and against all judgments, fines, amounts paid in settlement and reasonably incurred in connection with legal and administrative proceedings where such director or officer acted honestly and in good faith with a view to the best interests of the IBC. IBCs may purchase and maintain insurance in relation to any person who is or was a Director or an Officer against any liability asserted against the person and incurred by the person in that capacity, whether or not the IBC has or would have had the power to indemnify the person against any of the liability.

Dissolution & Striking-Off

Should the Registrar has reasonable cause to believe that a Bahamas company no longer satisfies the requirements prescribed for a Bahamas IBC the Registrar shall serve an Order for Compliance to the IBC. Once the IBC has complied with the requirements of the IBC Act the Registrar will issue a Declaration of Compliance at the request of the IBC. Failure to reply with 90 days immediately following the date of service of the Compliance Order, the Registrar will be required to strike the name of the Bahamas company off the Register unless the Bahamian company or any other person satisfies the Registrar that the Bahamas company should not be struck off. Once the IBC is struck off the Company Register the Registrar is required to publish a Notice of the striking off in the Gazette.

Fees & Penalties

IBC’s are required to pay registration fees upon incorporation and an annual licence fee of $350 to the government. License fees are payable before the 31st of January each year, beginning the year following the incorporation of the company. Penalties are due for late payment and the Registrar may strike IBC’s off the register for non-payment. The penalty rates are:

• 10% increase of the prescribed fee should an IBC fails to pay the prescribed registration fee to the Registrar by the 1st day of April in each year;
• 50% increase of the prescribed fee should an IBC company fail to pay the amount due by 31st October;
• If a Bahamian IBC fails to pay the registration fee by 31st December, the name of the Bahamas IBC will be struck off the Register from 1st January of the following year.

Exemptions

A Bahamas IBC is exempted from the Bahamas Exchange Control Regulations only if its operations are intended to be exclusively overseas, however Bahamian IBCs seeking to carry on business with persons resident in The Bahamas must first obtain exchange control approval from the Central Bank of The Bahamas with respect to its planned operations.  Exemptions are granted for a period of 20-years from the date of incorporation of a Bahamas company or from the date of its continuation under the IBC Act.

A Bahamas IBC or any member or shareholder is not subject to:-

• any business licence fees, income tax, corporation tax, capital gains tax or any other tax or income or distributions accruing to or derived from such company or in connection with any transaction to which that Bahamas company or shareholder, as the case may be, is a party;
• any estate, inheritance, succession or gift tax, rate, duty, levy or other charge payable in The Bahamas with respect to any shares, debt obligations or other securities of that company or shareholder;
• the payment of stamp duty on any transactions in respect of shares, debt obligations or the securities of a Bahamas company and any other transactions relating to the business of the Bahamas IBC; provided however, stamp duty is payable in relation to real property situated in The Bahamas which is owned by the Bahamas IBC, or which is owned by any company in which it holds shares or for which it holds a lease.

These exemptions do not apply to:-

• a person who is a “resident” of The Bahamas within the meaning of the Bahamas Exchange Control Regulations Act; or
• to a company incorporated or continued under the Bahamas IBC Act if a “resident” of The Bahamas is the beneficial or legal owner of any of the common or preferred shares issued or to be issued by such Bahamas company or acquires a legal or beneficial interest in any debt or other securities issued or to be issued by such Bahamas IBC or is otherwise directly or indirectly entitled to receive any dividends or distributions from such a Bahamas company.

	Mario L. McCartney is the Founder and Principal of LEX JUSTIS, a boutique law firm providing Corporate, Private Client, and Traditional legal services in the Commonwealth of The Bahamas. Mr. McCartney is also the present editor and main contributor of firm’s blog site and welcomes all opinions and comments to his articles.
For further information on all legal services provided by Mr. McCartney please visit the LEX JUSTIS website @ www.lexjustis.com or email him at mmccartney@lexjustis.com, mario.l.mccartney@gmail.com.

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And the fullness thereof

The world and they that dwell therein

For he founded it upon the seas

And established it upon the waters.

Psalms 

While countries such as Great Britain were being industrialized, the Church was being shaken to its foundation by the theory of evolution that threatened to topple the base doctrine of the creation of the earth by God.  Here was a world in which the average person had lived in awe and fear of the Almighty, isolated pockets lived in knowledge of earth remedies and deeply-rooted superstitions, so to topple the theory of Creation was to tip the dominoes lined along the theological table.

It would appear from artistic and written accounts dating from the 1800’s, that prior to industrialization most western societies lived in some commune with nature and the environment.  After all, why pollute a well with natural poison unless to kill the surrounding inhabitants?  If they died, and the local flora and fauna were poisoned, how did that possibly benefit anyone who wished to reside, profit, or partake from that area?  Simply put, it did not.  To pollute nature is to pollute oneself.  It was a form of both physical and spiritual suicide.  So to remove the mantle of Creationism from the spiritual psyche of the Church back then was as tantamount to us today as destroying the ozone layer.

I introduced Joel Brenner’s article because to go into the world he describes is a whole new adventure.  He described a Great Britain of 150 years ago when one could virtually hear the birds singing and the creeks babbling through his pages.  So pristine must have been the beauty of nature during those years before the onslaught of industrialization that the population from the top down was baffled as to how changes were handled.  Brenner takes the birds-eye view that environmental concerns and issues of public health were overshadowed by the protection of private property rights for landowners. There was a legal outlook applied when one individual sued another but the principle failed when a factory was brought before the court by an individual:-

While some if not all of the judges were ready to see that persons did not ruin their neighbors’ amenity in the name of convenience, they were not willing to extend a similar protection to persons suffering personal discomfort from industrial nuisances.  The dearth of reported nuisance actions against factories suggests that this dual standard has been long operating…

At the risk of oversimplifying what is an ornate legal discussion, I wish to abridge the conversation for the reader who is not necessarily deeply schooled in legal thought. Way back in the 1200’s and even as far as the 1600’s, the courts in Great Britain easily managed disputes between neighbor to neighbor.  Decisions were handed out (according to Brenner’s argument) in cursory fashion.  Joe Blow lives in “exclusive possession” on his land and his neighbor, John Smith, lets his cows loose by accident or design.  No excuse.  Pay Joe Blow something for his trouble.  That sort of judicial decision went on forever.  If Joe Blow was just visiting family and something happened to him on his sister’s property, he would hardly have the nerve to approach any court unless he had been virtually killed, severely injured or his personal property (like his horse) destroyed in a rash manner!  So this whole legal arena is what is considered the doctrine of private nuisance law.  Private because you have standing before the court as an individual, and in almost every case because either the land is yours or you have suffered personal damage.

There was a long gap before the challenge of industrialization hovered on the horizon of the courts.  Brenner reveals, “while the black-letter law changed little, the field of its applicability became relatively narrower.”[2]  The population growth was phenomenal in the cities with factories so that “the pace of industrialization in England was by nineteenth-century standards extremely rapid and that an attendant consequence was the pollution of the air and water.”[3]  While it is very tempting for me to trail through the case law decisions, I will leave that to reader who is interested to review on their own.  What interests me most, though, is the parallels drawn forth by both Brenner and Sax where government involvement by means of statutory authorization of public and quasi-public enterprises operates to “bite the hand that feeds it.”  In other words, one arm of government is not carrying out a duty of care on behalf of the public when it passes Acts of Parliament omitting to protect public resources or drafting those acts so vaguely as to allow loopholes for developers to dive out of the legal mix when things get hot!  The other arm of government is meanwhile in the unenviable position of having to create doctrinal gymnastics in utilizing existence case law (if any exists at all!) to protect public resources.  And, lastly, the most muscled of all government arms (the executive) is often the culprit.

Sax and Brenner have both shed light on the role of the courts.  In the case of Sax, he takes the powerful Massachusetts court decision in the famous case, Gould v. Greylock Reservation Commn., 350 Mass. (1966), and attempts to show how groups in Maryland and Virginia applied the improved strength of the doctrine.  In any case, there were a few questions that the court had to ask in determining whether public resources were being whittled away in the interest of private development.  I have paraphrased these questions accordingly[4]:-

1. Is the profit turnover extremely high to the point of commercialistic?
2. Is the land being sold which was formerly for the enjoyment of the many to the commercial profit of the few?
3. Is an aquatic resource being converted to housing (which could be done elsewhere)?
4. Is the State unable to get an appropriate value on the resources it is selling to the private group?
5. Are State agencies in one corner of government filing objections that are being ignored by a more powerful State agency in another corner.

To put it plainly, these considerations are at the root of public trust doctrine.   And any attempt by the legislature to pass an Act, a Bill, or a Statute granting away public resources, should take these into consideration. The Massachusetts approach “could thrust the project back to the legislature where the project’s proponents would have to contend with wide public knowledge,”[5] and this of course means votes or no votes for politicians!

We have already looked rather closely in Part II at what happens when the public resources are actually granted via statute.  These scenarios paint a picture of what happens when the State is acting as trustee of public resources.  What Brenner attempts to do in his article, though, is to demonstrate the advantages of owning property where the courts are concerned with private or public nuisance law.  He explains the private nuisance cases where once you were in exclusive possession, you had standing.  In public nuisance cases, the wealthy landowners could afford to approach the court but even they lost most often to economic interests in the wider community because factory owners and their subsequent generation of wealth both monetary and physical, benefited society so greatly the courts were hesitant to put them out of business.  Whole towns and communities were employed at these places where the side effects of pollution were severely compromising basic environment standards of the air and water.  The reports of lakes, creeks, sewer systems and cities by Brenner’s evidence are grim, to put it mildly.

The British government finally sent out commissions to explore the environmental degradation and found itself having to address the problem by legislating very specifically, area by area.  Challenges to the legislation were often, again, the reality of employment in factory settings.  Administrative challenges to the executive were often the reality that statutes enacted in the past had to be updated and amended to suit the changing needs of society.   Statutes needed teeth to deal with emission levels, pollution testing, and so forth.  The overarching tendency was for private individual rights to pale in the face of big business.  Brenner argues that private property rights gave big business the rights to degrade, However, I argue that collectivism of “the greater good,” considerations of the need for employment and the production that factories brought, were themselves overshadowing the rights of the individual in the society of Great Britain.  The ‘small’ citizen did not easily factor into the equation.  Private individuals did not have an easy time establishing before the court an issue of standing in public nuisance cases.  Usually, it required a courageous, wealthy and educated landowner to agitate for an Attorney-General’s injunction, or as Sax describes it where Redwoods National Park was established and dam-building in the Grand Canyon was blocked:-

Sometimes, to be sure, the objectors in a community are alert and highly organized and make their views known very clearly.[6]

Everyone studying, or practicing, law knows that the most important case involving public nuisance is St. Helen’s Smelting Co. v. Tipping (1865). [7]  The relevance of this case to my discussion is on a level of private property, the rights of wealthy individuals and the tendency of the courts to lean towards a sort of collectivism where big business is allowed to overshadow small business, as it were.  The plaintiff was a landowner of some 1300 acres whose property (flora, fauna and water) were being decimated to the point that even government had been documenting the area around the Smelting Company.  This was before the slew of steady legislation had been created in Great Britain.  The court in a steady stream of decisions ruled that only if the value of the property was diminished, could Tipping have a chance to win his day in court.   All the legal discussion I have seen on this case demonstrates the court’s favoritism displayed for big business. I see the landowner as a representative of small business, however regardless of one’s outlook, it is agreed that this case dealt a blow to the local psyche, resulting in a decreased number of private persons approaching the court in actions for public nuisance:-

If a man of substance such as Tipping could not win in nuisance except for actual physical damage of his property, then a lesser man was unlikely to make out at all against an industrial opponent…[d]amage to the occupier’s health and comfort was no longer a property injury per se.[8]

Brenner goes on to describe the ongoing governmental attempt to document what was going on in these areas in order to handle any coherent approach to legislation.  What The Royal Commission on Noxious Vapours was discovering in 1878 was a paradox:  that in areas where pollution was highest, the land value was rising and tenant rents were steadily increasing![9]  It shows us that people will continue to struggle and live in places where they can make a salary even if their health is at risk and even if they have to pay enormous rents.  In fact, this urbanization phenomenon is occurring worldwide.   People live in high-stress areas where they can make cash rather than retreat to the countryside or rural communities where life is slower and tangible wealth not readily available.

This example of Mr. Tipping gives any caring government a lodestar to gaze forth and ponder: can protection of citizens’ environment be carefully crafted into statutes without destroying the economy?  Do repeated court decisions in favor of big government work to steadily destroy a strong, healthy middle class?  Do issues of health and environment eventually fall upon the government in any event when the middle class erodes and is unable to pay for dignified health care?  The swift rate of development in Great Britain in the 1850’s gives developing countries a nice model to explore in facing fast-paced development where the environment and public resources are at risk of being overlooked!

That is the consideration of government.  Where can the Church look for answers in a world where this is no God, no Creator, no Higher Source of justice and power recognized in the spheres of intelligentsia and global power? This is one big whammy!

I began to ask myself in reading Brenner’s piece, what on earth was the church doing in Great Britain at that time? I pulled out my favorite book, God’s Peoples, produced by Billy Graham Ministries and found something of a beginning in the story of Methodism:-

Eighteenth-century England was in the middle of the Industrial Revolution.  Men and women who had been driven off the land by the earlier Agricultural Revolution swarmed into the cities to compete for jobs.  Those who were fortunate enough to find work toiled from sunup until sundown, falling exhausted and filthy into their beds as soon as they got home to snatch a few hours of sleep before they had to get up for the next day’s work.  On Sundays, the only day they had off, they were too dirty and too poor to be comfortable in an Anglican church.  Wesley’s outdoor preaching reached and converted these people.  Revival swept England, churning out itinerant Methodist circuit preachers…who did have a burning zeal for Christ and the unsaved.[10]

Nearly 100 years later, Charles Darwin publishes Origin of the Species (1859) “which challenge[d] both the Christian view of humanity and the Enlightenment emphasis on human reason and individual dignity,[11]” through free choice rather than natural selection.   This work had a profound influence in academic spheres and has survived even to this day.

The church in Great Britain at this time “was ill-prepared for these changes…The Sunday school movement began as an effort to teach literacy to children who worked in factories the rest of the week; the Bible was the text.”[12]

It is around this time that Western Christians in Great Britain and America diverged into two paths:  the evangelicals and the liberals.   Both are Protestant arms.  To confuse them with either Catholicism or the Anglicans is a fatal intellectual error in discussing the modern church.

This is where, in my opinion, the church must explore our role in a discussion of environmental protection.  We must really dig for the ideas that set the stage for this fork in the road.  It is more than the Creation/Evolution divide, in my opinion.  However, as citizens of any democratic country, we must work within the constraints of the legal environment available to us.   That is why I have taken this path of unraveling my experience of studying public trust doctrine (U.S. law) and private and public nuisance doctrine (U.K. law). I feel they are cousins of the Commonwealth historical development and can be beautifully utilized in protection of the environment while taking economic considerations into account.

As for who “owns the world,” and the passage of the Psalms given at the very beginning of this article, maybe that will never be answered in academic circles, in lines of black and white.  But if you look outside your window, sit by the seaside hear a bird singing, or watch a dog curled up in the garden, remember that these beauties are gifts.

---

Brenner, Joel L., Nuisance Law and the Industrial Revolution, The Journal of Legal Studies, Vol. 3., No. 2, June 1974, pp. 403-433 at p. 412-413.

[2] Ibid., p. 408

[3] Ibid.

[4] Sax., Joseph L., “The Public Trust Doctrine,” Michigan Law Review. January 1970. Volume 68, pp. 470-566 at pp. 502-504.

[5] Ibid. 505

[6] Ibid. pg. 496

[7] 11 England Rep. 1483, 11 H.L. Cas.642, at 642-44, 4 B.&S. 608.

[8] Brenner, Joel L. at pp. 419-20.

[9] Ibid., 420.

[10] Spickard, Paul R., Cragg, Kevin M., God’s Peoples: A Social History of Christians.© 1994, Baker Books, (Contributing authors: G. William Carlson, Michael W. Holmes, James E. Johnson, Cornelius H. Lettinga and Roger E. Olson).

[11] Ibid. 349.

[12]Ibid. 284.

	Melissa K. Sweeting – Perecentie, is a student of the University of London and has a long history with the Church. She has a passion for Creative Art, Social Justice, and business. She is the mother of two daughters, Hannah and Omega.
For further information on all articles provided by Melissa Sweeting – Percentie, you may contact her via email at mellaw1970@hotmail.com or visit www.lexjustis.com

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