One cannot help but conclude that the Unfair Terms in Consumer Contracts Bill, 2003 (the “Bill”) is a mistake.
The Bill was introduced into Parliament by Leslie Miller, the Minister of Trade and Industry, and Allyson Maynard-Gibson, the Financial Services and Investment Minister. When you read the newspaper accounts and the text of the bill several issues are clear.
Mr. Miller states, as reported in the Tribune, that one reason for the Bill is that “Consumers are continuously taken advantage of, especially the country’s single women”. This statement in itself seems strange since Bahamian women on average are better educated and more highly motivated in legitimate business than Bahamian men. In fact, this gender disparity is a social problem of significant magnitude.
Without the provision of additional factual data, the “protection of women” reason for the Bill appears patronizing and political.
Then there is the implied assumption that contract law as developed over several centuries is unfair to consumers. The Ministers contend that it is necessary to protect the consumer against “unfair terms” that are contrary to the “good faith” test. This is defined as a term that “causes a significant imbalance in the parties” rights and obligations “to the detriment of the consumer” (Clause 4). The guidelines for determining “Good Faith” include �the strength of the bargaining positions of the parties’ and “the extent to which the seller or supplier has dealt fairly and equitably with the consumer” (Second Schedule (a) & (d)). And … when there is any doubt about a written term in a contract “the interpretation most favourable to the consumer shall prevail” (Clause 6).
The right assumption is that the proposed Good Faith test is a blatant effort to alter the present impartiality of the Law.
The third reason for the Bill given by the Minister of Trade and Industry is that the court system has failed. Leslie Miller states that “The normal recourse is to go to court. The normal result is nothing is done.” The Minister recognizes that the court system could solve the problem; but his solution is not to undertake the difficult task of fixing the court system. He and the PLP are confirming their inability or unwillingness to address this pressing national problem.
And … how bad is it?
Paul Farquharson, the Police Commissioner, in an interview on Talk Radio and as reported in the Nassau Guardian, stated that ﾗ The system is “Cocked-up”; It has been evident for decades; and No one is doing anything about it.
He pointed out that there are “laws on the books that need to be applied and we must have swift justice.” In 2002 4,455 criminal cases were received at the prosecutions office, 3,000 were addressed, 9,196 cases are pending before the courts and 14,000 warrants are outstanding. He contends that the “criminal felt that if he went to court and pleaded ‘not guilty,’ the chances of his case eventually being heard was almost nil.” The point is that crime and the failure of the Rule of Law are literally killing the country.
It is time for Parliamentarians to focus on the big problem. It is time to focus the country’s attention and limited resources on the court system and fix it.
The determination of Ministers Leslie Miller and Allyson Maynard-Gibson is to grant new powers to the Minister of Trade and Industry so that he can examine unfair terms and obtain injunctions against their use. Their clear intent is to increase the discretionary power of politicians while by their inaction enfeebling the judiciary.
All governments that value individual freedom and the protection of private property are faced with making a choice between either a system based on individual freedom and the rule of law or one based on the discretionary rule of men. With this Bill the country is clearly opting for the latter.
In today’s world and in the crisis facing The Bahamas, the Bill is avoiding the problem, the creation of an independent and efficient judiciary, and opting for the discretionary rule of politicians. Such a choice is a mistake and it keeps The Bahamas on the wrong track.
Yours, etc.
Ralph Massey
The Nassau Institute
