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Bahamas Legal System Provides a Well Established Environment for International Business

Thursday July 1st, 2010

Category: Business, Legal & Judiciary

THE JUDICIAL AND LEGAL SYSTEM

The basis of the Bahamian Law and Legal system is the English Common Law tradition.

Justices of the Supreme Court, Registrars and Magistrates are appointed by The Governor-General acting on the advice of the Judicial and Legal Service Commission. The Judicial and Legal Service Commission comprises five persons with the Chief Justice as Chairman.

The Chief Justice and the Justices of the Court of Appeal including the President are appointed by the Governor-General on the recommendation of the Prime Minister after consultation with the Leader of the Opposition.

Justices of the Supreme Court can serve until the age of sixty-five (65) years and, where agreed between the judge, the Prime Minister and the Leader of the Opposition, may serve until the age of sixty-seven (67). Justices of Appeal can serve until the age of sixty-eight (68) years and, where agreed between the judge, the Prime Minister and the Leader of the Opposition, may serve until the age of seventy (70) years.

The law of The Bahamas makes provisions for the appointment of twelve (12) Justices to the Bench of the Supreme Court, inclusive of the Chief Justice, and for five (5) Justices of the Court of Appeal, inclusive of the President. The Chief Justice, as head of the Judiciary, is ex officio, a member of the Court of Appeal; however, he/she only sits at the invitation of the President.

THE LEGAL PROCESS

I. CRIMINAL MATTERS

Proceedings are instituted in the name of the Queen in the Supreme Court and in the name of the Commissioner of Police in the Magistrate's Court.

The Magistrate's Courts hear summary matters or indictable matters which may be heard summarily. Stipendiary and Circuit Magistrates have jurisdiction to impose a maximum sentence of five (5) years. They also conduct preliminary inquiries in indictable matters to determine whether a prima facie case has been made against an accused person. If a prima facie case is made out, the accused is committed to the Supreme Court to stand trial.

If the person is tried and convicted in the Magistrate's Court, an appeal lies to the Supreme Court or to the Court of Appeal, depending on the nature of the offence.

An appeal may lie from the Court of Appeal to the Judicial Committee of Her Majesty's Privy Council, which is the highest Court of Appeal in The Bahamas.

II. CIVIL MATTERS

Civil cases are generally heard by a Judge alone.

Appeals from final judgments of the Supreme Court in civil cases lie as of right to the Court of Appeal, and with the leave of the Court of Appeal and Supreme Court in some interlocutory matters or further appeals from Tribunals.

Stipendiary and Circuit Magistrates can also hear and determine Civil cases if the amount claimed does not exceed $5,000.00.

Appeals lie to the Supreme Court.

Courts of Justice

MAGISTRATES COURTS

These courts are presided over by stipendiary and circuit magistrates, who exercise summary jurisdiction in criminal matters and in civil matters involving amounts not exceeding $5,000.00.

Family Island Administrators also sit as magistrates and exercise summary jurisdiction in criminal matters of a less serious nature and in civil matters involving amounts not exceeding $400.00.

Stipendiary and Circuit Magistrates must have been members of the English, Irish, Scottish or Bahamian Bar and have practised for at least five (5) years. Stipendiary and Circuit Magistrates are ex officio Magistrates for The Bahamas.

SUPREME COURT

Justices are appointed by the Governor General acting on the advice of the Judicial and Legal Services Commission. The Supreme Court has unlimited jurisdiction in general, civil and criminal matters.

A Justice of The Supreme Court must be a counsel and attorney and a member of the Bahamas Bar for at least ten years or a member of a Commonwealth Country’s Bar and have practised for at least ten years. The Supreme Court has unlimited original jurisdiction in civil and criminal causes and matters and an appellate jurisdiction conferred on it by the Supreme Court Act, 1996 or any other law, which includes appeals from the Magistrates’s Court.

Judges assigned to the Supreme Court in Freeport, Grand Bahama hear matters from the Northern Region of The Bahamas, which includes Bimini, Abaco and Grand Bahama unless they are transferred to New Providence for good reason.

COURT OF APPEAL

The highest tribunal resident within The Bahamas is the Court of Appeal, which sits on a full time basis throughout the year. The Court of Appeal has jurisdiction in criminal, constitutional and civil matters - which include appeals from the Industrial Relations Tribunal - under the Constitution, the Court of Appeal Act and other statutes.

The Court of Appeal, which is separate and apart from the Supreme Court, is comprised of a President, the Chief Justice by virtue of his office as Head of the Judiciary, three (3) resident Justices of Appeal and one (1) non-resident Justice of Appeal.

The Court of Appeal, like the Supreme Court is not a government department. They function as independent institutions under the Constitution.

The Court has jurisdiction to hear and determine appeals from judgments, orders and sentences made by the Supreme Court. The Court of Appeal also has jurisdiction to hear and determine appeals from matters in a magisterial court in respect of indictable offences triable summarily on the grounds that:

(i) the court had no jurisdiction or exceeded its jurisdiction in the matter;

(ii) the decision was unreasonable, could not be supported by the evidence or was erroneous in point of law;

(iii) the decision of the magistrate or the sentence passed was based on a wrong principle;

(iv) some material illegality occurred affecting the merits of the case; or

(v) the sentence was too severe or lenient.

PRIVY COUNCIL

At the apex of the court hierarchy for The Bahamas is the Judicial Committee of the Privy Council in London, England. The Judicial Committee of the Privy Council serves as the ultimate Court of Appeal in all matters where appeal is permissible. The Judicial Committee consists of the Lord President of the Council, the Lord Chancellor, ex-Lord Presidents, the Lords of Appeal in Ordinary and such other members of the Privy Council as from time to time hold or have held high judicial office and two other privy counsellors who may be appointed by the sovereign.

THE INDUSTRIAL TRIBUNAL

The Industrial Tribunal comprises (3) members appointed by the Governor-General acting on the advice of the Judicial and Legal Service Commission. The Tribunal has the power to hear and determine trade disputes, register industrial agreements, hear and determine matters relating to the registration of such agreements, make orders or awards and award compensation on complaints brought and proved before the Tribunal.

ADMINISTRATION

The Registrar heads the day-to-day administration of the courts and sits to hear interlocutory applications, taxations and assessment of damages. The Registrar is supported by three (3) Deputies, one of whom serves as the Registrar of the Court of Appeal, and an Assistant Registrar along with the judicial support staff.

Legal System

The legal system in The Bahamas is independent of the political process in the country, and provides a well-established environment for international business. Since 1964 English common law has been complemented by an American type of constitutionalism which declares the existence of certain fundamental principles that are to be observed and enforced. These rights are enshrined in The Constitution; Article 15 concisely states these principles:

"Whereas every person in the Bahamas is entitled to the fundamental rights and freedom of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the protection of the public interest, to each and all of the following namely:

1. life, liberty, security of the person and the protection of the law;

2. freedom of conscience, of expression and of assembly and association;

3. protection for the privacy of his home and other property and from deprivation of property without compensation;

The subsequent provisions of this chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms of any individual does not prejudice the rights and freedoms of others or the public interest."

Legal Profession and Organisation of The Bahamas Bar

There are more than 900 lawyers qualified to practise at The Bahamas Bar. Every lawyer entitled to practise in The Bahamas is properly styled a "counsel and attorney", and is an officer of the Supreme Court. All persons admitted to practise collectively form the Bahamas Bar Association (BBA). The Bar Council, the executive body of the BBA, has responsibility for deciding whether an applicant for admission to practise is qualified.

The statutory qualification for admission to practise is –

(1) a call to the Bar of England, Scotland, Northern Ireland or Eire, or of such other country as may be specified; (2) admission to practise as a solicitor in any of the above countries; or (3) receipt of a Legal Education Certificate from the Council of Legal Education of the West Indies.

Applicants who meet requirements (1), (2) or (3) above, must also serve for 12 months under the tutelage of a lawyer in actual practice in The Bahamas before being admitted to practise. All applicants for admission to practise must be Bahamians, and must not have been disqualified or suspended from practice in the courts of any place outside The Bahamas.

The Bar Council may agree to the special admission of a person who is not a Bahamian for the purpose of conducting particular proceedings so long as the person is qualified as above. Also, a person entitled to practise before a court of unlimited jurisdiction in any country may become a "registered associate" and agent of a counsel and attorney.

Legal Education

The Council of Legal Education of the West Indies is the regional body to which most of the English-speaking territories in The Caribbean subscribe. The Council consists of the Dean of the Faculty of Law, representatives of the Bar, the judiciary and principals of the Law Schools. The Council operates three law schools, one in Jamaica - the Norman Manley Law School, in Trinidad and Tobago - the Hugh Wooding Law School and in The Bahamas – the Eugene Dupuch Law School.

The qualification for admission to any of the law schools is the possession of a University of the West Indies law degree or a law degree of a University or Institution which is recognised by the Council and the successful completion of an examination set by the Council. The Legal Education Certificate is awarded after satisfactory completion of the two year program, or in the case of persons who possess law degrees from other jurisdictions, completion of the six month conversion program.

THE BAHAMAS CONSTITUTION – The Supreme Law of The Bahamas

The Commonwealth of The Bahamas is a parliamentary democracy. Its system of law and government is based on the Westminster model, which envisages three arms of the State - the Executive, Parliament and the Judiciary. The relationship between each is governed by the principle of separation of powers and the functioning of each is clearly articulated in the Country's written Constitution.

Article 38 of the Constitution provides that "there shall be a Parliament of The Bahamas which shall consist of Her Majesty, a Senate and a House of Assembly. Pursuant to Article 52 (1) of the Constitution, "Parliament may make laws for the peace, order and good government of The Bahamas". In this jurisdiction laws passed by Parliament are called Acts or Statutes. Acts come into effect immediately on publication in the official Gazette on a date specified in the Act; or a date specified in a document called an Appointed Day Notice.

The supremacy of the Constitution of The Commonwealth of The Bahamas is declared in Article 2 of the Constitution which provides:

"2. This Constitution is the supreme law of the Commonwealth of The Bahamas and, subject to the provisions of this Constitution, if any other law is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void".

The significance of the supremacy of the Constitution and the principles enshrined therein, is that all legislation, government action, and action by the citizenry are subject to review by the Courts to ensure that they are consistent with the Constitution.