The reason why the Government cannot sell Batelco’s assets is that neither “The Government” nor BTC has title to them.
Who or what is the Government of the Bahamas?
It is not a person; it has no personality. The Constitution of the Commonwealth of The Bahamas by its preamble declares that the people of this family of Islands recognize that the preservation of their freedom will be guaranteed by, inter alia” an abiding respect for Christian values and the “Rule of Law” and Article 1 declares that the Commonwealth of The Bahamas shall be a sovereign Democratic State. It seems to me therefore, that the Government of the Bahamian State is of Law and not of men.
Nowhere in The Constitution is Government defined or is such an entity created. Executive Authority is vested in her Majesty and the principal is the Bahamian nation. Government, it is submitted, is a term used to describe collectively all those persons who are employed by the state to enforce the Laws which rule. The Government is a non-entity it cannot acquire or hold property, there is; however, Public Property.
A Parliament consisting of Her Majesty, a Senate and a House of Assembly is established by Article 52 empowered to make Laws for the peace order and good government of The Bahamas.
In 1958, there was a “General strike” which was precipitated by members of The Taxi Union, a group of non-employee independent business owners forming themselves into a union, blocking the entry to the newly built Windsor Airport. Before this event The Bahamas had been a peaceful nation having a police force of less than 300 men who also served as a primary Defence Force.
The Commissioner of Police Mr. Colcherster Whyms realized that he was in no position to deal with any uprising, there were not a sufficient number of officers and he, most importantly, lacked the ability to communicate with the officers who were deployed, and by secured means with the Governor and the Colonial Office.
After the strike, steps were taken urgently to remedy this security deficiency: the number of police officers were increased, a Riot Squad organized, Special Branch and a radio Division created. I became Technical Assistant to The Force Communication Officers and in that position was privy to discussions relating to the need for a secured Telecommunication system serving the entire Bahamas capable of providing communication for the National Security of The Bahamas.
The Government of the day and no doubt the Colonial Office, which was responsible for the National Security and Defence of The Bahamas, decided that a Telecommunication system operating as a department of Government was inappropriate, that it would be vulnerable to strike action and sabotage; that a system part of the sovereignty of The State capable of being taken over and operated by the Police and Military during an emergency and providing secured communications internally and externally was necessary.
A Statutory Corporation called Bahamas Telecom-munication Corporation, having no Shareholder, not limited; a sovereign asset, perpetual succession and no provision made for its liquidation or winding up, was incorporated. The Bahamas Telecommuni-cations Corporation Act also provided that any person who without authority acquires any knowledge of the contents of any communication with intent to prejudice the rights or interests of any other discloses the contents thereof would be guilty of a criminal offence and any person engaged in any capacity whatsoever at a Telecommunication Station, contrary to his duty, discloses or intercepts any information would be guilty of a criminal offence, also that in an emergency the Governor was empowered to assume control and make emergency appointments, including temporary operative engineering staff.
The sovereign nature and national security aspect were so predominant a consideration that in 1974(after Independence) the Act was amended to provide that no person other than a citizen of The Bahamas could be appointed an officer in the Corporation without prior approval of The Minister responsible to Parliament for the affairs of The Corporation.
As a corporate person Batelco is protected by The Constitution against expropriation of its property and since Parliament is not empowered to expropriate property for a private purpose or to alienate sovereignty, it is submitted that parliament cannot authorize the sale of Batelco’s assets. Furthermore, when the corporation was created in 1966 it purchased the assets of The Telecommunication Depart-ment out of its own earnings therefore “The Government” cannot now sell that which it previously sold to the Corporation; what it proposes to do is to unlawfully expropriate Batelco’s Property. The purported transfer to BTC was a sham.
The Rule of Law requires that everyone including officers of The State are subject to the Law. If anyone in the Bahamas took another person’s property with the intent to sell it to another, such a person would have been arrested and charged with stealing.
In the premises, it seems that the only possible way to sell Batelco is to be authorized by a referendum.
R. Rawle Maynard
Nassau, Bahamas
January, 2011
