Persons intending to bring constitutional motions before the Supreme Court in the future ought to be on notice that the power of a Supreme Court judge to strike that motion out on the basis that there is “no reasonable cause of action” has been affirmed by the highest court of the land.
That is a concern raised by Grand Bahama attorney Maurice Glinton in the wake of a new Privy Council ruling in the ongoing legal battle involving himself and attorney Leandra Esfakis against the Government of The Bahamas.
The Privy Council on Monday upheld an appeal by the Right Honorable Hubert Ingraham, sued in his official capacity as then Prime Minister of The Bahamas; William Allen as Minister of Finance; The Compliance Commission; the Inspector of Finance and Corporate Services and the Attorney General of The Bahamas.
The Privy Council said the appeal was “a most unusual appeal.”
Basically, the government appealed a decision by The Bahamas Court of Appeal overturning a decision by Chief Justice Sir Burton Hall striking out a number of paragraphs in a writ issued by Mr. Glinton and Ms. Esfakis, the first and second respondents in this appeal.
The two lawyers have sued the persons named ﾖ in their official capacities ﾖ over the package of legislation brought by the Ingraham administration to address what then-prime minister Ingraham saw as legitimate deficiencies identified in The Bahamas counter-money laundering systems.
The lawyers contend that certain provisions of the laws violate the constitution.
The reported deficiencies in pre-existing financial laws were identified by the Financial Action Task Force in June 2000, resulting in the placing of The Bahamas on the so-called “black list.”
Mr. Glinton and Ms. Esfakis objected strongly to the legislation and sued the government over it.
The government objected to paragraphs 1 through 13 of the writ, and asked that they be struck out by the Supreme Court on the grounds that they disclosed no reasonable cause of action, or were scandalous, frivolous or vexatious.
The Privy Council quoted one of the disputed paragraphs, which accuses the defendants of abdicating their collective responsibility for the direction and control of the Government of The Bahamas” among other things.
Sir Burton struck the disputed paragraphs out, and Mr. Glinton and Ms. Esfakis appealed to The Bahamas Court of Appeal, where their appeal was upheld.
The Privy Council objected to the Court of Appealﾒs reasoning, and declared that “constitutional claims cannot be impervious to the strikeout jurisdiction and it would be most unfortunate if they were.”
According to paragraph 11 of the Privy Councilﾒs ruling, “it cannot be right that anyone issuing proceedings under Article 28 of the Constitution is guaranteed a full hearing of his claim irrespective of how ill-founded, hopeless, abusive or vexatious it may be.”
The council held that Sir Burton had been right to strike the disputed paragraphs of the Glinton-Esfakis claim out, and that the strikeout jurisdiction applies to constitutional proceedings as to any others.
By: Quincy Parker, The Bahama Journal
