Constitutionally guaranteed fundamental rights have fallen victim to the jurisdiction’s quest for legitimacy via the ever evolving “international best practices”.
The individual and more importantly the bundle of rights – to property, freedom of expression, fair trials and privacy – enshrined in the Constitution are the basis of the financial services sector.
The financial services sector is playing an increasing role in ensuring that the jurisdiction retains the constitutionally guaranteed rights that make the jurisdiction attractive and competitive.
The rights afforded each Bahamian under the constitution are what provide the state’s legitimacy and its sovereignty. Laws passed in Parliament are declared null and void when they counter the constitution.
Apart from the telecommunications technology afforded by The Bahamas Telecommunications Company (BTC), and what the Minister of Financial Services and Investment Allyson Gibson Maynard refers to as theintellectual capital – lawyers, accountants and bankers – the sector’s chief attraction is the constitutionally guaranteed safeguards afforded the individual who submits to the jurisdiction. The safeguards such as being able to conduct legitimate business in an environment of trust and confidentiality and the knowledge that no one within the jurisdiction will be subjected to arbitrary and or extra judicial proceedings whether instigated by an individual, a government and its agencies or organizations such as the FATF or the OECD.
The erosion of those safeguards, particularly privacy and safety of the person while attempting legitimacy by adhering to demands whether of governments or unauthorized bodies, ultimately undermines the very principles that legitimize the jurisdiction.
Whatever the action, whether concerned with confidentiality or the removal from the jurisdiction at the behest of another, the prime concern is always to go back to whether such actions violate the constitution.
A recent brief by the Landfall Centre makes a cogent argument for the protection of the individual as the very basis of national sovereignty and hence the financial services sector.
The brief looks at how treaties and agreements are entered into and how the procedures arising from those treaties can undermine the very legitimacy that the treaties and agreements are supposed to establish.
In making its argument the Landfall Centre looked at the genesis of one particular treaty and the procedures and obligations established there under, between The Bahamas and The United States.
Taking the position that ultimately all treaties and agreements entered into by The People and Government of The Bahamas are “constitutional questions”, and as such are “inherently an issue of sovereignty”, Landfall looking at the Extradition treaty between The Bahamas and the US notes that “the very pre-text under which an extradition programme is developed, the very levers between any two nations are no different than those which arise in respect of the OECD proposals or the Tax Information Exchange agreements.
At first blush there might not seem to be any connection between the OECD’s efforts through the FATF’s black listing exercise or its continued monitoring of The Bahamas despite having met all of the FATF’s demands and the extradition treaty between the US and The Bahamas.
But the relationship is apparent immediately the questions of sovereignty and constitutionality arise. Or as the Landfall brief observed whether the issue is “extradition or financial services or trade, the rule of law in the constitution”, is what binds these seemingly disparate areas.
A fundamental premise of the Landfall brief is that any act of parliament, any treaty or agreement which “remove from citizens of The Bahamas, and those subject to the laws of The Bahamas, constitutional protections which are inherent in nation states in general, and the Bahamian constitution in particular, is unconstitutional.”
Referring to Maurice O. Glinton’s legal challenge to the constitutionality of the extradition treaty, the Landfall brief noted that Mr. Glinton’s challenged the manner in which the treaty was established and whether the constitution allowed Bahamian citizens to be extradited.
The extradition treaty between the The Bahamas and the US was signed in October 1991 by the respective governments and in 1994 the Parliament of The Commonwealth of The Bahamas passed the Extradition Act.
Mr. Glinton’s challenge was that as a matter of parliamentary procedure the treaty should have been tabled in the house and debated before the enactment of the legislation. The Landfall brief noted the similarity between the arguments in support of “arbitrary information exchange” in financial services and those for extradition.
The brief observed that in all instances where “arbitrary information exchange” arguments were tested, the courts, multiple jurisdictions and at the Privy Council, roundly rejected them as being unconstitutional.
The Landfall brief lists the violation of the following points whether by an agreement or a treaty such as the extradition treaty as grounds to declare such an agreement or treaty in violation of the constitution of The Bahamas.
1. Exercise of Parliamentary Powers
The treaty or agreement ignores the requirement of “peace, order and good governance of The Bahamas”, the “expressed ingredient, inherent consideration and basis of justification of the exercise of all Parliamentary powers.”
2. Anomalies of law
As an example Article II of the Extradition Treaty and Part I sections 4 and 5 establishes “extradition based on underlying criminal conduct rather than the particular designation of an offence which requires a proper definition in law.”
3. Criminal Liability
Criminal liability based upon conspiracy, which depends upon circumstantial evidence, does not meet a threshold, which allows for disapplication of constitutional protection of citizens.
4. Retroactivity
The Treaty (Article 19) extends the extra-territoriality of the US in The Bahamas thus potentially compromising the liberty of Bahamians for purposes, which the Government of The Bahamas, which is bound by the constitution to secure the liberty of its citizens, has no capacity to determine.
5. Evidence
Neither the Treaty nor the resultant legislation requires the US to provide particulars in respect of an allegation for which a warrant may be issued.
Finally in making its case for the need to observe the constitutional requirements in protecting its citizens and hence its sovereignty and economy, the Landfall brief notes that the legislation establishes the magistrate as the “judicial operative in the extradition process and also as an issuer of warrants.”
According to the Landfall brief this arrangement “not only denies the Bahamian citizen the benefit of his natural constitutional rights” but gives to the magistrate authority to issue warrants that the constitution has established can only be exercised by the Supreme Court of The Bahamas.
Magistrates are not members of the Supreme Court of The Bahamas. The Judcial and Legal Services Commission appoint Supreme Court Judges as stated in the Constitution, while the Public Services Commission appoints Magistrates.
C.E. Huggins, The Bahama Journal
November 19th
