Property and The Law

First Published: 2003-07-20

The term “British Justice” has a powerful ring that for the most part is more comforting than threatening. It is associated in the mind with honourable practices in the pursuit of justice in an uncorrupted court system.

The law and the rule of law relating to property in British Law and in particular to Sir Edmund Coke’s famous and long surviving statement “A man’s home is his Castle” has no doubt been tested in dozens of court hearings through the centuries. It still resonates today as an inviolable right of protection by the law from the state’s power to deprive an individual of his property and/or his uninterrupted use thereof.

The members of the Bahamas Bar Association and the judges presiding in the courts are well steeped in the traditions of a system of justice that has evolved over centuries in Great Britain. The assumption has been that private property is protected from invasion or seizure by the state. Currently this assumption is being tested in the Bahamas Supreme Court, and it bears watching.

Chapter III of the Bahamas Constitution describes the “Fundamental Rights and Freedoms of the Individual” which includes “protection for the privacy of his home and other property and from deprivation of property without compensation”

Maurice Glinton and Leandra Esfakis together with the Bar Association, are currently seeking an injunction from the Supreme Court to forestall access by government appointed inspectors to private and confidential records in lawyer’s offices. Whatever the court rules in this preliminary challenge to the December 2000 Bills regulating financial transactions, precedent will be set to

1. Confirm that the law protects private property from intervention by the state or

2. Sets criteria for intervention in the ownership or use of private property that does not already exist and that becomes legal precedent for future court decisions that make the protection of property “less certain over time”.

Alan Lockard of George Mason University in The Journal of Private Enterprise examines how “The Constitutional Protection of Property Becomes Less Certain Over Time”. Professor Lockard examines the demise of stare decisis (respect for legal precedent) over time and that the “force that drives change is not a permanent increase in respect for property rights but is a predictable breakdown” of respect for legal precedent. He notes that “Nowhere is the predictability of the law more critical than in regard to the power of the state to seize or regulate the property of its citizens. Through the monopolization of the legal application of coercion and force, the state has the means to take anything from anyone, or to require anything to be used in any manner specified. When considering takings jurisprudence, it is important to remember that everything – literally all property of any kind, physical or intellectual – is at stake”.

Once the rulings in the Esfakis/Glinton case are heard, it will be possible to determine whether Professor Lockard’s concerns for the demise of stare decisis in the United States has become a cause for concern in The Bahamas.

Up until December 2000 and the laws to regulate Financial Transactions the Bahamas Constitution has provided the certainty required for political stability and economic prosperity. It is hoped, indeed we should pray that stare decisis prevails and the rulings in the Esfakis/Glinton case do not set precedent for future rulings that – over time – will further undermine the certainty of property rights now in question.

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