NOELLE NICOLLS

Tribune Features Editor

nnicolls@tribunemedia.net

When the government postponed the gambling referendum, originally proposed for December 3, it bought itself time to put the legal structure in place to conduct a consultative referendum, to properly educate the Bahamian public on the issues and the questions which would be the subject of the referendum. So far it has successfully accomplished one of the three tasks.

With the referendum now weeks away, once again, the clock is ticking, and much is still left to be said and done before the Bahamian people are able to make an informed decision on January 28. The holiday season and of course the National Insurance Board scandal have diverted attention from the impending referendum, but come January, when the countdown will continue in earnest, there will be another up swell of frustration and anger if the government does not properly prepare the public for the referendum.

If they botch the formulation of the questions, it will not only be embarrassing for the government, it will be problematic for voters and cause even more confusion. It could also open up the process to judicial challenge.

Last we heard, the government was deciding between placing one or two questions on the referendum. I had a go at formulating possible questions and what the exercise revealed to me is the real conundrum; the reason, I gather, the government is taking so long. I could not conceive of a single question or two that could resolve the situation at hand.

If the question is too broad it threatens to create conflicts with the existing law by leaving room for unintended interpretations. If the question is too narrow, it risks entering the realm of technicality, which would require a higher level of public education on the issue than is now being displayed.

What will the government do? Ask a broad question that gives it wiggle room or a narrow question that addresses specific issues. Both scenarios present problematic variables that remind me of Walter Scott’s proverbial words in his 19th century poem: “Oh what a tangled web we weave, when first we practice to deceive.”

The government could ask: Should Bahamians be allowed to gamble in online casinos? Assuming the answer is yes, the government could adopt the mandate to amend the Gaming and Lotteries Act so Bahamians are able to gamble in online casinos.

Opponents of the current practice of discrimination against Bahamians will wonder, how could the government justify empowering Bahamians to gamble in online casinos and not physical casinos? How could the government justify Bahamians gambling in Bahamian-owned casinos and not foreign-owned casinos, particularly where the Bahamian public subsidies foreign-owned casinos in the millions through promotional contributions negotiated in the various heads of agreements?

As reprehensible as it might seem, the government would be within its right to do so. A constitutional caveat enables the government to discriminate against Bahamians when it acts in the interest of establishing laws to govern the gaming sector.

Should Bahamians be allowed to own online casinos? This question is problematic because it is too broad. Experience has shown and the law will prove, the Bahamian government cannot regulate the actions of Bahamians who lawfully live or do business in another country. Bahamians currently own casinos all over the world: in the Turks and Caicos, the Dominican Republic, Europe. The online casinos currently in play are for the most part domiciled outside of the Bahamas. While the government can regulate the actions of citizens and non-citizens within its territory, it is not up to the government or the Bahamian people to decide how Bahamians conduct business outside the country. The question would have to be qualified in some way.

Do you approve of the government granting Bahamians Web Shop Gaming Licenses under the Gaming and Lotteries Act to operate Internet wagering or online lottery services?

This question is specific enough that should the vote be yes, it would give the government clear policy direction: Create a licensing regime under the Act for Web Shop Gaming Licenses and open it up to Bahamians. However, it is long and technical and will probably never see the light of day.

Web shops have valid business licenses to provide internet services; however, they do not have gaming licenses in the Bahamas. The government therefore cannot under the current scenario regulate web shops as gaming operations or collect the millions in available tax revenue under a regulatory regime. A yes vote would empower the government to grant Bahamian businesses restricted gaming licenses to conduct internet gaming.

Should the vote be reflected as no, it would provide nothing by way of help to the government in implementing its pledge to shut down web shops.

Should web shops be legalised? The main problem with this question is the matter of definition. What is a web shop? A web shop is a business licensed in the Bahamas to operate internet services. On what basis has the government established that web shops are illegal? For web shops to be legalised it would first need to be established that they are illegal. If they are illegal then why has the government continued to license them and collect tax revenues from them, year to year?

Should web shops be regularised? Equally problematic, because it does not address the matter of being regularised to do what: to offer Internet gaming; lotteries; slot machines, casino games. I suppose the government could use its own discretion with this mandate to act, but it could create problems if the public’s intention in voting yes is not aligned with the government’s interpretation.

How would the government differentiate between an online casino and a physical casino? A web shop could set up a slot machine counsel that looks like an ordinary machine found in a casino, but use an online system to deliver the simulated game. Instead of pulling a lever, the user would press a button on the computer panel.

Would it make sense to allow Bahamians to gamble on a simulated slot machine and not a physical one? Amending the Act to facilitate this sort of operation would further cement the practice of discrimination that currently exists. Is that the right direction to be heading in?

The government would have to support a policy that allows Bahamians to gamble in web shops while forbidding them from gambling in physical casinos. This would create a virtual Berlin wall, separating the natives from the whites, where Bahamians could gamble as long as they kept amongst their own kind.

There still seems to be an implicit moral assumption being made about whether Bahamians are sophisticated or cultured enough to manage their own affairs or hang with the house guests. Bahamians employed as croupiers can gamble in casinos on behalf of the house, but they cannot gamble inside their own homes.

I understand the government’s desire to address the gambling issue in stages, but I cannot see how the issue can possibly be resolved with one, even two questions (Note, I have not touched on the national lottery issue) without creating unintended problems or complications.

In light of all this, a few important things must be said about the impending referendum. First, a question is never entirely objective, and two, a question is always based on a number of facts and assumptions. The second point is the most important one, because if an individual does not understand the facts and assumptions that form the basis of a question, then the answer will speak more to their own imagination than the actual question.

I opened by saying the government had bought itself time to put the legal structure in place to conduct a consultative referendum, to properly educate the Bahamian public on the issues and the questions which would be the subject of the referendum. It has yet to do the latter two and it will come back to bite them if they do not do so. The government says it does not have a horse in the race, but with $20 million in potential revenue on the table, I find it hard to believe the government is not secretly favouring one outcome over the other.

The former government amassed a lot of data on the gaming industry with the intention of regulating it. Some will say former Prime Minister Hubert Ingraham used the question of a referendum as a pretext to backtrack on his original commitment and resolve to act in advance of a general election. Fortunately or unfortunately, if the process fails to go well, the egg will not be on Hubert Ingraham’s face.

Settling the various gaming issues still is a golden opportunity for the government: A multimillion dollar industry that employs thousands of Bahamians and celebrates black entrepreneurship. In the long run, history will remember favourably any government that is able to increase the public purse, create new business opportunities and elevate an age-old industry.

The present government should have summarised the data collected by the former government and any new insight it had garnered and released all of the details to the public a long time ago. We have yet to see a white paper, green paper, blue paper or any kind of paper, articulating the facts relevant to the question that will likely arise. The right to know is a most fundamental principle to the democratic process.

The opposition has no real contest except that they can argue about the process. And the more the process is bungled, the stronger the case they have to make. Let us not forget, the basis of the Progress Liberal Party’s contest of the 2002 referendum was process. The public will be pushed closer to a no vote if the process loses credibility.

The government amassed significant political capital coming out of the recent elections, but that bank only runs so deep. It can hardly afford to lose any more political capital on this referendum, because at some point public confidence will be so eroded that the government’s legitimacy will start to be questioned.

Plus, the government cannot afford to use the financial capital of the state unwisely in this fiscal climate. A costly referendum that produces no resolution would certainly fit the criteria.

So what is the government to do given its present predicament? What are they going to ask the Bahamian people and what will be the implications of the question.

Going forward a few things seem clear to me: the government should stop relying on the “Vote Yes” and “Vote No” campaigns and consultants to educate the public. Take a proactive and aggressive approach to public education. The government seems to be speaking to the Yes/No campaigns instead of the Bahamian people. The government is not obligated to take sides, but it obligated to educate the Bahamian people about the facts and assumptions that form the basis of the questions at hand.

The government should make haste in releasing the referendum questions and educating the public or scrap the January 28 referendum date. Every day that passes with no question is a day of lost capital.

More information needs to be released on the implications of a no vote. It is not sufficient to say, the government is going to shut the whole thing down. The government needs to say specifically and practically, how and under what legal framework it plans to implement this kind of action.

Will the government place a moratorium on granting internet service licenses? Will it revoke all existing licenses to web shops? Is the government proposing to press charges against individuals? If so, for what crimes? Will the government draft new legislation to prohibit online gambling? Does the government propose to establish a special division of the police to enforce its new position? Will it divert resources of the state away from more meaningful pursuits to accomplish this objective? What does the government mean when it says, it will shut down the industry?

With weeks to go before the proposed referendum there seems to be so many questions and still so few answers. I hope the government has more luck than I with constructing a question and I hope the question settles something of substance.

I maintain, if the government would only settle the constitutional question, all things would be made simple. A vote by the public to remove the problematic clause would be a vote to end discrimination against Bahamians. The Gaming and Lotteries Act as it stands would be rendered unconstitutional and the government could start with a clean slate to regulate the industry, creating opportunities for Bahamian businesses and Bahamian consumers. If the government continues to shy away from addressing the practice of discrimination, the tangled web will only become more and more twisted.

Some of my sources are beginning the believe the government will end up moving the date again, and end up addressing the matter during the June constitutional referendum. How far fetched that belief is, I do not know. But I do know, the government is walking a tightrope and its actions over the next weeks and months will be heavily scrutinised and have political consequences, one way or the other.