Lawyer Client Privilege and much more

First Published: 2006-06-16

Editor,

Dear Madam,

I read with interest Larry Smith’s Tough Call article of May 24th, 2006, reviewing some of the issues arising out of the 11 Financial Laws introduced in December, 2000.

It also touches on the status of the Constitutional Action filed in December 2001 by Maurice Glinton and myself in response to those issues. The Bahamas Bar Association intervenes in that law suit.

Congratulations to Mr. Smith who once again presented opposing view points on an important subject. There was enough material there to generate some questions and public concerns.

One reservation however, is that TOUGH CALL’s readers may have been left with the impression that the only substantive issue, is lawyer- client privilege: a concern of only lawyers and their clients.

This is not the case. At the risk of over-simplifying, I will attempt to summarize some issues the Plaintiffs allege arise out of the challenged package of legislation.

The Constitutional case is about this country. As citizens we allege that we have a right to expect our government of the day, whoever it may be, to act in accordance with the Constitution.

The Constitutional case asks the Court to determine whether the government has an obligation to defend the sovereignty of this jurisdiction, to pass laws consistent with the Constitution, and in the interest of the people of the Bahamas, in the sense that was the actuating interest for their passage.

It asks the Court to determine, whether the Constitution protects the citizens’ fundamental rights as we understand them, or whether those rights cede to the executive’s exercise of power as set out in the Financial Laws.

1. Do the laws violate the fundamental rights provisions of the Constitution such as:
The presumption of innocence
The right of freedom from unwarranted search
The right to confidentiality regarding private communications
The right not to be unjustly deprived of property?
2. Do the Financial Laws deprive a client of the protection of lawyer-client privilege?
3. Should attorneys be required by the Financial Laws to report on their clients with or without the consent of the client?
4. Do the Financial Laws put the Plaintiffs (and other lawyers) as officers of the Supreme Court, in a position of conflict, between the duty and obligations which the laws create for them, and the client’s right to confidentiality of his information?
5. The Hawkesbill Creek Agreement has not been amended or repealed. Do the Financial Laws violate the rights of the 1st Plaintiff (and other attorneys licenced by the Port Authority of Grand Bahama) as Licencee under the Hawksbill Creek Agreement?
6 Do the provisions of the Financial Laws circumvent the powers of the Public Service Commission?
7 Do the provisions relating to the Financial Intelligence Unit (FIU) defeat a person’s right to trial by an independent and impartial court?
8 Is the FIU given powers and immunities reserved for the Supreme Court and its judges alone and therefore ultra vires the Constitution?
9 Is the FIU ultra vires the Constitution because it purports to usurp Parliament’s legislative function of determining what the law should be?
10 Does the Central Bank of the Bahamas Act (CBBA) attempt to deny the fundamental right of a person to the presumption of innocence until proven guilty by an impartial court?
11 Does the CBBA defeat a person’s right to protection against the arbitrary and compulsory deprivation of property without due process of law?
12 Is the Banks and Trust Companies Regulation Act (BTCRA) ultra vires when it purports to give the Governor of the Central Bank, and a Magistrate, powers to exercise a discretion reserved for judges in the higher judiciary, which affect fundamental rights?
13 Does the BTCRA circumvent the constitutional separation of powers by virtue of the judicial power purported to be vested in the Governor of the Central Bank?
14 Do the Financial Laws by designating the Plaintiffs (and other lawyers) as "Financial Institutions") purport to regulate and redefine the Plaintiffs’ duties and functions as Officers of the Court , and Counsel and Attorneys of the Supreme Court?
15 Do the Financial Laws thereby defeat the role of the Plaintiffs as officers of the court and thereby also defeat the constitutional separation of powers?
16 Can the reasons for which the legislation was passed, justify the alleged erosion or abrogation of fundamental rights in a democratic society?

Elsewhere in the Commonwealth, similar financial laws have been challenged: laws which likewise purported to co-opt lawyers to aid in enforcing the laws through their legal practices. Those challenges have been successful, and the laws declared unconstitutional where they violated fundamental human rights. Are we in this part of the Commonwealth, somehow less human, and deserving of less rights?

The Financial Laws have been, and will be supplemented by "guidelines" passed on to "Financial Institutions" through the Compliance Commission of The Bahamas, from the FATF, the financial arm of the OECD. The OECD is an overseas organization representing the developed countries. The guidelines are not laws or regulations passed by our Parliament, but in practice set standards and procedures by which "compliance" is to be measured. These can be a moving goal-post. The Bahamas Compliance Commission reports to the FATF and /or the Caribbean FATF.

This situation is alluded to in the interview of Mr. James Smith, Minister of State for Finance, in the Tribune of May 30th, 2006. Minister Smith, referred to ‘regulatory standards ….. constantly evolving.’ Minister Smith further commented on the OECD’s latest report on "compliance" issues, as follows: "It’s been an argument that has been made in the Bahamas for some time, that we have gone ‘way beyond’ the OECD countries, which is why it is so important to insist on a level playing field.’"

If our Government is using that argument against the OECD, why is it vigorously defending this Constitutional Action, which likewise seeks to preserve for our citizens, and persons in this jurisdiction, the level playing field on fundamental human rights? And at an enormous cost, first to the taxpayers of this country, as well as the Plaintiffs and the few citizens who have provided support.

The Constitution grants citizens, and others in the Bahamas, the right to a presumption of innocence, a fair trial by an independent court, protection of person and property from unwarranted searches and seizures, and a right to give and receive information relating to his private affairs in confidence.

We allege that the financial laws would deny those constitutional rights in certain instances.

The Constitution sets out a system of checks and balances against the executive’s misuse of power. Do the Financial Laws represent a misuse of power, and will the Constitution afford protection?

The over-riding question however, is whether we are prepared to face the challenge to fundamental rights now: whether we have sufficient moral constitution to preserve our legal Constitution.

Or whether we are just simple occupants of the Islands in the Stream ( but less and less owners of the land we occupy), flowing to the dictates of the strongest current of the day, in the naive belief that the qualities of a democratic society, until now enjoyed, will somehow be preserved for us, without any effort or sacrifice on our part.

Yours sincerely,

Leandra Esfakis

30th May, 2006

The views expressed are those of the author, and not necessarily those of the Nassau Institute (which has no corporate view), or its Advisers or Directors.

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