The Tribune

EDITOR. The Tribune.

Lost in the ongoing debate over the imaginary monarchical powers of the Prime Minister is any serious public-policy discussion over who may or may not have access to tourists on public beaches.

There is currently a matter before the court over the fate of informal vendors who were arrested following an altercation during their eviction from a beach and/or their subsequent protest action to block access to the Sir Sidney Poitier Bridge.

The vendors got the public attention they wanted back in March 2016 followed quickly by the summons that they definitely did not want.

It is sound advice not to speak to issues sub judice (under judicial consideration) but apparently some in public life seem to have forgotten this wise admonition. Accordingly, the matter will not be discussed here.

During pupilage, law students sometimes wonder if they had mistakenly stumbled into a foreign language class. Latin phraseology and terminology comes fast and furious in law school, especially during criminal law discussions.

It helps students to quickly grasp the inescapable fact that the law has been around a long time. The Romans (who spoke Latin) had a go at it around 753 BC when Rome was founded by King Romulus, the first of its seven kings each of whom was styled Chief Magistrate of the Kingdom. Egyptian law goes back even further to 3000 BC.

The legal fraternity today, in an odious case of elitism, wraps itself in Latin phraseology even in cases where the English translation would be more practical. Lawyers do it to enforce an atmosphere of rarefied air in a world where only they and judges dwell. Even parliament, a playground for lawyers, flaunts Latin words.

There are so many Latin words in common use today that some think they are English. Words like ad hoc, alibi, caveat, innuendo and yes, referendum, are Latin.

Catholics used to say mass in Latin and it was taught in some elite schools.

The latest Latin phrase in use today is the nolle prosequi, or the withdrawal of proceedings in a court matter. The nolle is almost as ancient as the law itself but for our reference we need to go back no further than the 16th century to find its first practicable use in England.

It is not by accident that our constitution singles out the Attorney General as the government’s chief advisor on legal matters. It also cloaks the AG in a blanket of tremendous power in legal affairs.

Prosecutors have the right to recommend to the AG to drop a case, most likely because of lack of evidence or because they believe what evidence that may exist will not stand up in court. In order words, the accused would most likely be acquitted at trial so why waste the court’s time and the crown’s scarce resources.

Nolles are also presented in cases of diminished capacity, mental or physical. If the accused lacks the capacity to participate in his own defense then, on compassionate grounds, a recommendation could be made not to proceed with prosecution. Legal purists tend to think that this was the original intent of this technicality.

The process is so drawn out that it can leave death as the fastest way for an accused to receive a nolle.

Recently we heard former PLP Attorney General Allyson Maynard Gibson spilling crocodile tears defending her rather robust use of the nolle. The subsequent noise that followed her intervention trended towards the old canard that throwing out cases helped improve the court’s back-log.

More judges, prosecutors, court and police personnel will help deal with back-log. Justice delayed is a serious matter and it must be addressed promptly by means other than the unwarranted nolle.

But Mrs Gibson made a valid point about the very nature of the nolle. No one should doubt that she had the right to stop those cases and she didn’t need the recommendation of prosecutors to do so.

The biggest problem with the nolle is that around the world it is perceived to be a rich man’s get out of jail card. Very seldom do poor defendants get their cases dropped. That should be worrying to us all.

In no case can a politician compel a court to do anything. The Judiciary is an equal leg of the tripod that government stands on. When invited to review a matter, courts can dictate to the executive. Neither the Executive nor the Legislative branches can dictate to the court, leaving aside the antithetical aspects of our system where executive assent is required for judicial appointments, etc. The Executive branch can rack and stack judges on the bench but it mustn’t try to hijack them.

The vendors whose matter is being adjudicated right now could be forgiven for thinking that a simple stroke of an Executive branch pen could exonerate them before they have their day in court, or even after, as they may have been promised.

What they should be pushing the government for is a review of the policy covering access by informal retailers to tourists in public places like beaches. Offering hair braiding services or selling trinkets to tourists as they sun-bathe on our beaches may sound like grass-roots entrepreneurism to some, but to others it’s harassment and a nuisance.

Tourists generally want to be left alone to enjoy their vacation. Additionally, it could be seen as being unfair competition to legitimate retailers who pay big money to the resorts for the privilege of having direct access to tourists in controlled environments or to other vendors who have to pay for their stalls in the market.

Today we need to be overly concerned about tourist safety and that means the hotels and the police being at least aware of the goings-on at the beach. Hotel managers need to be able to promote their properties as safe havens free from crime and harassment, sun-drenched oases with unobtrusive security, not garrisons.

This could mean some form of registration of who can sell at the beach and the promulgation of a set of rules to determine how and when they get access and what they can sell as well as codes of conduct and of dress.

The hotels, Tourism Ministry, police, vendors, power-boat and jet-ski operators as well as others may all want to add their unique ingredients to make this cake.

In the end, what should be made abundantly clear is that trying to make a living in this country is not against the law. However, certain actions taken in pursuit of that objective just might be.

And if anyone actually believes that a politician can wave a magic wand and make a court matter disappear, then they probably stood in line for Santa Claus last month and are eagerly awaiting the Easter Bunny.

THE GRADUATE

Nassau,

January 16, 2018