Maurice Glinton read law at Cambridge University. He is a Barrister of Gray’s Inn (London) and a Counsel and Attorney practicing at The Bahamas Bar. Prior to entering the practice of Law, he undertook Undergraduate Studies at the University of Maine (Orono, Maine) where in 1972 he obtained a Bachelor’s Degree in Economics. He went on to complete graduate studies in International Relations at Lehigh University (Bethlehem, Pennsylvania), where he was James Ward Packard Fellow, and there in 1973 was awarded a Master’s Degree. He has written and published articles on aspects of Constitutional Law and Law Reform, the topical focus of which has been Judicial Independence and The Government’s Role of the Judiciary in Constitutional Development, and Fundamental Rights Adjudication in The Bahamas.
He is currently challenging (jointly with fellow Attorney Leandra Esfakis) the Constitutionality of the Enactment and enforcement of various provisions of the legislative measures directly impacting the Financial Sector passed in a rash by the government in December 2000. He talked with Mike Smith on a recent “Contact” program about their legal position.
Mr. Mike Smith: Your current matter is before the Privy Council in London – Do you think it would be more convenient for you, if you could be accommodated by the proposed Caribbean Court of Justice?
Mr. Maurice Glinton: Strange as it might seem, it is easier for us to access the Privy Council than it would ever be for us to access Caribbean Court of Appeal.
Mr. Smith: That’s a very interesting statement, please explain that to me.
Mr. Glinton: One of the unknown or lesser known facts is this, that the Privy Council is not a foreign body. The Privy Council has been an intricate part of our Constitutional development from the very beginning as an institution. When we talked about going to the Privy Council – I’m not talking about going to London – the Privy Council just happens to sit in London – there has been various proposals over the years, some of them going back to some proposals from the former Chief Justice of Australia that you should have a regionalized court. Now I’m beginning to see the wisdom of it not being so because gradually you have had so many of these so-called dominions and jurisdictions, essentially, either coming up with their own final court as was done in Australia, subject to one situation where you can have inter-state appeal, which impacts the various states comprising the Australian Confederation. Of course, in Canada, it’s the Supreme Court of Canada now after they have repatriated their constitution. But, the Privy Council only happens to sit in London, but on any occasion I go there, its constituted by a different panel. That panel comprise the very same judges who sit in the House of Lords, and there are only twelve of them at any point in time. These would be the most outstanding lawyers, these weren’t people who were appointed just because they were there or known to some political party. These were men who would have had the finest practices at the Bar.
Mr. Smith: Do I read in your implication that The Caribbean Court of Justice would and could be possibly be formed of lawyers that were there because of their allegiance or loyalty to some political party?
Mr. Glinton: It would seem so, and if I were to judge by what goes on in this jurisdiction, that’s how appointments are made. There is no process of appointments.
Mr. Smith: You would say that would be the major weakness of a Caribbean Court of Justice?
Mr. Glinton: Just one of them. The other one is this – let me continue with the Privy Council, I will tell you what the problem is as I see it. There is no expense for the average litigant, for the litigant in accessing the Privy Council. Even on death penalty cases it is really the English taxpayers essentially who pays for the solicitors who do the work, these are persons who stand here in this jurisdiction at any point in time and don’t have to pay any money, not at all. But of course you have so much volunteerism involved that you don’t really appreciate that it is a huge effort, but there is also a tax burden on the English taxpayer. What you have in the Privy Council as well is an establishment, this is an institution in every sense of the word, everything is there – what speaks volume Mike is the fact that we could – in a matter of days – access the Privy Council to a state of readiness, not only that, but were willing Mike, to delay bringing an end to the term which came officially on Wednesday 31st of July (end of the court year), and they were willing to sit for another day to hear us.
Mr. Smith: You were also impressed obviously with the efficiency of the Privy Council then?
Mr: Glinton: More than that too. The decorum, the courtesy with which they treat lawyers.
Mr. Smith: Mr. Glinton, you present some interesting positions, you are obviously a traditionalist to a great extent. At the same time though, you say you protect sovereignty and what the Caribbean Court of Justice seeks to do, as I understand it, is to make the Caribbean more sovereign.
Mr. Glinton: Just the opposite. In order for us to become a part of any arrangement with the Caribbean – and one need only look at some of the provisions being proposed – special treatment for UWI graduates etc. it will require an amendment of our Bahamian Constitution, but whenever you become a part of anything else as the English now understand by being part of the EU, there is a fundamental change in your Constitutional position, you are now finding that we are more in accord with what we call traditional written constitution of jurisprudence. If you look at the decisions of the Privy Council in the last two or three years, particularly since its been led by Lord Bingum, you see this very robust body getting into some of those areas not only to bring it in harmonization with the European declaration, but it also brings it in harmony with those of us who have had to be governed by written constitutions as in Canada and Australia, even though in the case of Australia you don’t have a Bill of Rights as you do in Canada and with us. But here is the singular difference with us in the Caribbean Court – the Caribbean Court is likely to be manned by appointees, none of whom will be Bahamian. I say that with the greatest respect, but with the full confidence of what I’ve seen going on in this jurisdiction. Caribbean judges and Caribbean personnel do not look on us too seriously, I think it’s partly because we don’t take ourselves seriously. We in the Bahamas already have a Caribbean Court, on any given day, if you were to go to the Court of Appeal you would recognize that nobody is looking like you or sounding like you, they are not citizens, but they make law for you. They regulate your conduct; they set the limits of your freedoms even though as non-citizens they have no right to do so. They do not enjoy the privileges or the burdens. The problems of the Constitution as some people would have it is this: with respect to citizens, we as citizens are sworn to protect and defend it. Foreigners are only given the privilege of having the benefits of it. They don’t have to defend it.
Mr. Smith: How do you mesh all of this now with this new regionalism, this new globalisation, this new global thinking? How do you say that we must almost be – for want of another word – parochial in our thinking?
Mr. Glinton: No, just the opposite. I see the notion of Caribbeanism for The Bahamas as essentially going backwards. This is not the first wave of globalism to hit this planet. It depends on which form it came, but usually it will come with the invention of something new, some new piece of technology, some great innovation with respect to travel and there has been a process of globalisation since – I suppose – Alexander (or perhaps even before him) decided that he would leave his little city-state in Greece, and travel into the upper Indies into India. We’ve always had it. The test for us is how do we maintain our complimentary status in whatever is going on. Not necessarily to avoid being enveloped, because in many ways we’ve been enveloped culturally for so long, we don’t even recognize it. Caribbean people think that we are different – they don’t often tell you that – but they think that Bahamians are different – that we are more American. Of course, Americans think that we are different too, because we sound very English, and some of us think that we are a combination of both. But, were we fail – this is where we’ve failed and this is why we cannot make a case for ourselves at this point in time – we have not paid enough attention to the development of our institutions. That development has been effectively arrested a long time, what we must do to stir it into action, to stir it into growth, I don’t know, but our institutions lack credibility. That is why we are thrown always into this great hodgepodge. The truth of the matter is this, we have to recognize that historically too, The Bahamas was never even (from the viewpoint of the cartographers, who made the maps of the West Indies), been regarded as the West Indies or the Caribbean. Bermuda and Barbados and The Bahamas – Barbados was treated differently, even in terms of the legislative authority, which they were given in their parliament. This parliament for example, going back to its very origin – 1729 – was always in a position to legislate for itself, subject only to the rule against repugnancy. In other words, the Englishmen in this place could not confer on themselves benefits and rights, which the Englishmen in London could.
Mr. Smith: You think the wave then of globalisation and regionalism challenges will pass?
Mr. Glinton: Its passing and indeed there is very little we can do about it, except though, that….
Mr. Smith: When I say pass, I mean – we don’t have to worry about it as much as the discussion appears to suggest.
Mr. Glinton: That’s right. We are being frightened with a view to stampeding us into an arrangement that can only benefit those who want us to be a part of it.
Mr. Smith: You say ‘caution’.
Mr. Glinton: Extreme caution. In fact, avoid it.
Mr. Smith: Some would say that you are a traditionalist, as I said, and that you just do not want change, that your respect goes to “The Mother Country”.
Mr. Glinton: No, just the opposite. When all of my friends were on the other side beating the path to get into England – my mother still reminds me of it now – I hated it. You and I went to North America. I’m still asked, ‘how is that that you went to Maine?’ and all my children were schooled in New England. So it is just the opposite – pro North American – but the world itself is changing and we have, in fact, to pay respect to those people who have stayed with their institution, developed it, and those institutions even serve us and we pay no price for it. If in fact we seek to become part of an arrangement which will be lose in more ways than one, we are going to pay a price and, at the expense of any last-ditch effort to help to develop and nourish our own domestic institutions, which as I’ve said, is in a state of disrepair and even ruin.
By Mike Smith, The Bahama Journal
