August 19, 2012Dear Sir,I have had the unfortunate occasion of witnessing the blatantly abusive and outdated debt recovery system exercised by the courts. Bermuda lags centuries behind in ethos on the rights of debtors and is imprisoning people for non-payment of civil contractual debts. Of course the arguments will come that the courts are the last resort in the debt collection process and that its only after the debtor’s obligations to creditor has been violated that the courts become involved where it exercises the option of imprisonment and then it’s only for failing to meet a court order. But a simple breakdown of payment is not a moral justification for courts to imprison for non-payment. The circumstances of the debtor and their means all should come into the equation. The nature of our economy, particularly nowadays, has created extraordinary circumstances for persons with normal means while those with less face even more aggravations. Having the means to pay should not be determined according to a whimsical or arbitrary guess made by a judge in court. Nor should the right to prove or the burden of proof automatically lay on the debtor who often hasn’t the means to give a professional account. The defendant needs a respected independent party to represent their financial circumstances.Creditors and debt collectors take advantage of a lack of rights of those who run afoul with debt. The creditors who have entertained a contract with persons have a court and a prison as tools to coerce payments under a system which has no rights of protection for the debtor. This is not an argument for wilful neglect or simple avoidance to pay for obligations when the means are available. It’s a two-sided affair. The supplier gives or sells a service on credit terms and while doing so assumes a level of risk. The background checks, credit rating and all that pertains to risk assessment need to have been considered before entering into a contract, otherwise the assumption is that the debtor is responsible alone for that which were perhaps at the onset, risky credit propositions. Add to the scenario the ability of collection organisations to advance a debt matter without proper notice. Sticking warrants on doors of abandoned properties or former residence is not a substitute for proper notice. By the time many of the matters get to the recipient, they have already graduated to the status of warrant for arrest and at times committal. The hapless defendant only has small window to declare in front of a magistrate his/her ability without proper diligence or representation. Thus they are forced to make unattainable promises to a judge to avoid jail only to be hauled back into court at a later date but this time without an excuse to avoid a sentence of imprisonment.I’m sure this matter has not passed the eyes of many of our learned politicians. Legislators have a role to protect all sectors of the population. The issue of justice and fairness must be of prime concern. The world in particular, as demonstrated in the European Conventions on Human Rights, has long recognised this issue of imprisonment of debtors as being against human and constitutional rights, most of which guarantee rights and liberty to its citizens. There is perhaps a constitutional defence but what debtor has the means to pursue the it through the courts? Bermuda has dropped the ball and is marching young unemployed and scarcely able mothers to court jail cells with the noose of imprisonment hanging over their heads. This needs to be addressed by our leaders in these distressed times. Another step needs to be included in the process of adjudicating debt settlements via the courts. That is a process of having means testing as a right for individuals. If the process is deemed too costly then the instrument of imprisonment needs to be taken away from the judgesKHALID A WASIWarwick