Dr Gilbert NMO Morris, head of the Bahamas' Nassau Institute, says that many aspects of the plethora of new financial services laws passed in the jurisdiction last year are unconstitutional, and forecasts that the Courts, in Bahamas and elsewhere, will throw out or amend hastily-conceived legislation which flouts basic constitutional rights.
The new Bahamian government has come in for some stick for saying that it plans to review the 11 pieces of legislation that were passed last year, but Dr Morris says they are exactly right.
"I am not alone in suggesting that the 11 pieces of legislation with which we are concerned here are a riot of unconstitutionality; which I believe in all honesty the last administration did not themselves wish to pass," says Dr Morris, naming a number of prominent Bahamians who are against the laws (which secured the Bahamas' removal from the OECD and FATF's 'blacklists').
Dr Morris produces a number of legal judgements from the last few months which assert constitutional rights as against draconian secrecy-busting laws.
" In Financial Clearing Corporation v. The Attorney General (In the Bahamas Supreme Court, Common Law Side No.232 of 2001) Madam Justice Allen over-ruled certain sections of the Financial Intelligence Unit Act 2000, saying in essence: The FIU was not empowered by virtue of separation of powers to order banks to produce private information without a court order. The learned justice did not agree with counsel however that a bank account was part of the "intimate sphere" of the person to be protected by law. However, in the months to come, I believe - respectfully - she will be shown to have been in error on this point. (See: Schreiber v. Canada (Attorney General) [1998] 1 S.C.R) The point is that already the laws were failing constitutional challenges.
"For those persons who suspect decisions of the Bahamas Supreme Court and do not believe Bahamians are capable of being the first to be right, courts in Canada, New Zealand, Australia and Bermuda have hammered Attorneys General departments on almost every aspect of tax competition and money laundering laws in the last six months. Months ago, in the pages of this daily, I - and sundry others - suggested that lawyer/client privilege would not survive in the current legislation - particularly sections 14 and 44 of the Financial Transaction Act 2000. These sections, amongst others, put lawyers in direct conflict with their obligations under the Bahamas Bar Regulations insofar as the protections of their client's confidentiality is concerned.
"In Federation of Law Societies of Canada v. Attorney General of Canada and The Law Society of British Columbia v. Attorney General of Canada, 2001 BCSC 1593, the Canadian courts demolished the government's position by dis-applying the sections of their Acts which compelled lawyers to reveal client information. In Bermuda the Supreme Court in Re an Application by Braswell and Others ITLR (2000) rejected the government's position that it could interfere with lawyer/client privilege by declaring it not merely a right, but a fundamental human right.
"Lawyers who attended a meeting in Nassau with Lord Styen of the House of Lords earlier this year will recall his proposition that in applying laws, courts must give governments room to operate, and must not define the law so narrowly as to prevent the government from achieving reasonable ends. Many lawyers left that meeting with the impression that any right given under a constitution must be balanced by the objectives of the government in passing the law. However, only a few weeks ago, the House of Lords put the matter right in law, advancing an argument long put by Mr. Maurice Glinton: "Legal and Professional Privilege does not involve…a balancing of interests. It is absolute and is based not merely upon the general right to privacy but also upon the right of access to justice…" (See: Regina v Special Commissioner and Another, Ex P Morgan Grenfell & Co Ltd (2002)). This is a final judgement, which conflicts with a host of anti-money laundering/tax competition legislation that were enacted in fundamental disregard for constitutional obligations."
" On September 12th 2001 - Cambridge, UK - I advised my colleagues in OFCs to defend themselves on the basis of democracy. I argued "You cannot have constitutional democracies and…the OECD [demands]. You cannot have an international regulatory dictator and legitimate governments. You must chose one or the other.""
Dr Morris disputes the idea that the US (a very important, in fact the most important external power as far as the Bahamas is concerned) will necessarily be against jurisdictions which apply constitutional tests to anti-money laundering legislation:"Liechtenstein seems to have taken that advice, and is still on the Blacklist. However, only a week ago, US Secretary of the Treasury came out in support of Liechtenstein and all small nations defending democratic principles against the OECD. This disproves those who said the Blacklist is the worst place to be. Moreover, who doubts that even whilst on the Blacklist Liechtenstein will reap billions in business, because of US support and because it stood upon its principles?"
.
Network Tweets
Network BlogsContent
provided by
|
Archive | Resources | Partners | Site Map | Links | Newsletter Archive | Contact | RSS Feeds | About | Syndication | Advertising & Marketing | Recruitment | Terms & Conditions | Privacy
Copyright © 2012 - All Rights Reserved - Tax-News.com
IMPORTANT NOTICE: Tax-News.com has taken reasonable care in sourcing and presenting the information contained on this site, but accepts no responsibility for any financial or other loss or damage that may result from its use. In particular, users of the site are advised to take appropriate professional advice before committing themselves to involvement in offshore jurisdictions, offshore trusts or offshore investments.
Write a comment