by:

Gilbert NMO Morris

The Force of Tradition:
Last night, the Privy Council forced a rejection of The Bahamas Court Appeal ruling of a few days ago in the Glinton-Esfakis case concerning the 11 pieces of financial legislation passed with undue haste in the fall of 2000.  The Bahamas government’s London lawyers advised the government to concede the Glinton-Esfakis position which the Bahamas Court of Appeal dismissed only days ago. The government also accepted the proposition that all lawyers in The Bahamas are exempt from Compliance Commission inspections until the Privy Council hears the full application in mid-October 2003. This development must be discussed with a seriousness befitting its importance in the history of Bahamian jurisprudence.

Mr. Maurice O. Glinton and Ms. Leandra Esfakis (Glinton-Esfakis) argued on an interlocutory application – appealing a ruling from The Bahamas Supreme Court – that insofar as the financial services legislation permits lawyer’s offices to be searched or inspected, it places lawyers in double jeopardy. If they accede to the legislation and allow their offices to be searched, they would be in direct breach of the Bar Act and the near ancient common law tradition of legal and professional privilege.

Last week I explained how these matters came into the purview of The Bahamas Court of Appeal. Glinton and Esfakis have filed a writ for the hearing of the whole matter which will concern, not only legal privilege, but the lengths of parliamentary legislative power, the extents of ministerial discretion and the foreign policy authority of government, it will also decide the boundaries of the powers of the Bahamas Central Bank, the fiduciary duties of financial services professionals, the extents of fundamental right to privacy for individuals and corporations, and perhaps centrally the nature of the legal profession.

The reason that the whole matter – the writ action – has not moved forward is that the Bahamas Attorney General’s office has failed to submit a defense. And although Glinton-Esfakis have filed a motion for judgement-in-default, The Bahamas courts have effectively allowed two years of ‘foot-dragging’ by the Attorney General’s office.

Glinton-Esfakis sought an interlocutory injunction in order – whilst awaiting the Attorney General’s office defense to the writ - to have the Compliance Commission’s power to search lawyer’s offices disapplied.  Here is a synopsis of what has happened so far:  On the initial interlocutory application almost two years ago, the Chief Justice (CJ) concluded that he was minded to grant relief to Glinton-Esfakis, but concluded – without hearing Glinton and Esfakis on McEwan and in error of law - that he was bound by the ruling in Ingraham, et al. V.  McEwan: (2002) in the Bahamas Court of Appeal which ruled – also in total error of law - that legislation could not be disapplied on an interlocutory application.  Glinton and Esfakis then proceeded to the Bahamas Court of Appeal where they were the Justices agreed that the CJ had no business referring to McEwan.  But they made a fatal error in law resting upon a severe misapprehension of their jurisdiction. In addition to rejecting the CJ’s argument, they sent Glinton and Esfakis back to the Supreme Court with an order that the court hear the matter in its entirety. This was wrong in law and procedure, since the application before the Court of Appeal was interlocutory, and the whole matter could not be heard in the Supreme Court because the Attorney General’s (AG) office failed to file a defense, and even when it does, there will be months of discovery and preliminary rulings.

Glinton and Esfakis wrote to the AG’s office to ask that the parties agree a factual basis to move forward and try the whole action before the Supreme Court; given the growing importance of the case and its international significance; particularly for the future policy development of the financial services industry. As yet, no defense has been filed, nor has any negotiations begun on agreeing a factual basis.

In the meantime, Glinton and Esfakis filed a new application for interlocutory relief for lawyers under the Supreme Court’s original jurisdiction in Article 28 (1) of the Bahamas Constitution; which was now granted in Canada on an interlocutory application; recognizing that the Court of Appeal was wrong in law and procedure in ordering the CJ to hear the whole matter, which they had no jurisdiction to do. Believe it or not, the CJ ruled first – in error of law – that he could not hear the new application.  And additionally, that he could not hear the whole action as ordered wrongly by the Court of Appeal. Glinton-Esfakis then returned to the Court of Appeal.

On the 22nd, of July, last week, only just…The Bahamas Court of Appeal in a fit of hortatory hubris not only dismissed out of hand the position argued by Glinton-Esfakis, they rejected the very proposition which led to Glinton-Esfakis “winning” in the Privy Council process last night.

Time & Tides:
Let’s run through the ‘Privy Council process’, so as to demonstrate whereof I speak:

Point A:
After The Bahamas Court of Appeal ruling, a reporter wrote that the Glinton-Esfakis team had to ‘return to the drawing board’. This is not so. The team – as it were – anticipated that The Bahamas courts are notoriously shy of their authority, and fearful of any position no taken by some other jurisdiction. The courts in The Bahamas are not leaders in legal principle, and even when principles are generally established, the courts are reluctant until the new position is over-literally clear.  Moreover, the courts are infamously inefficient at providing transcripts or written judgements, which are the basis of legal analysis in advanced juris-cultures.  As such, no one should look to these courts for innovations in legal thinking.

Because of these perceptions, the Glinton-Esfakis team – largely Maurice Glinton and Ms. Esfakis – prepared a Privy Council application with the assistance of a team of English lawyers, who were prepared to present arguments on short notice. Mr. Glinton is himself a veteran and seasoned practitioner before the Privy Council bar. However, there was no time to fly to London.

Point B:
This demonstrates the first difference in the operations of this case between Britain and The Bahamas. English Council, recognizing the importance of this case, worked through the night pro bono to assist in these matters.  Yet, those who will benefit most from this action in The Bahamas offer nothing to assist in its success.  This case is not supported by any bank or other law chamber even though they stand to benefit disproportionately; and in the case of law chambers, Glinton and Esfakis hardly get the sort of work that will be of interest to the Compliance Commission.  This case is being funded by the two attorneys and by contributions from ordinary citizens who see the fundamental principle being argued.

Point C:
At around 4 AM Bahamas time, Mr. Glinton – in communication with The Bahamas government’s London lawyers - submitted the final draft of the Glinton-Esfakis application to over-turn The Bahamas Court of Appeal ruling.  Wednesday was the last day of hearings or on which the Privy Council sits before its summer recess. And even then it only sits until 3 PM, London time. However, they were so convinced of the weight and importance of the Glinton-Esfakis application that they offered to delay their holiday for an extra day; a move which happens only in death penalty cases, and even then only rarely.

Here is the question: what does it say that the Privy Council would abandon their tradition, and hear a matter which The Court of Appeal of The Bahamas suggested only days ago was of no moment for law?  What does it say that they argued that the Compliance Commission and the Securities and Exchange Commission had done nothing which they needed to halt; a position – I suggested last week - was ridiculous in law; since applications of the sort being sought by Glinton-Esfakis are meant to prevent something from happening. Moreover, the fact the lawyers were in double jeopardy because of parts of the 11 pieces of legislation which allowed their offices to be searched and the Bar Act which committed them to client protection is an existing situation which could have been halted.

This gives light to the fact that The Bahamas Court of Appeal gave their minds only to the physical act of a lawyer’s office being inspected under the new laws. They gave no consideration to the fact that two contradictory laws on the books committing lawyers to two opposite obligations was the real issue. This is what is meant when I say The Bahamas courts are over-literal.

Point D:
A large portion of the procedure of the courts is built around courtesy.  For instance, if counsel has notice of a case ‘on all fours’ or similar in every way to his own, which is ruled on days before he goes to court, it is proper to withdraw and not waste the court’s time. The court’s in The Bahamas could have exercised this courtesy, since the ultimate goal of the Glinton-Esfakis case which is to have sections of the 11 pieces of financial services legislation struck down has already been done in the House of Lords, in Canada, New Zealand, Bermuda etc.  The Bahamas courts could have taken judicial notice of these cases, saving time and money by concluding this matter two years ago. (Other jurisdictions would have been following us at this point, resulting in prestige for The Bahamas world wide).

The Bahamas government lawyers in London are obviously knowledgeable concerning courtesy. Noticing that the Privy Council was willing to delay their holiday to hear the Glinton-Esfakis application was enough to convince the lawyers that it would have been improper, even considered unprofessional to go to law in defense against the Glinton-Esfakis application. Not willing to risk their own prestige, they convinced their client, The Bahamas government that it should concede the Glinton-Esfakis position which The Bahamas Court of Appeal had dismissed only days before.

Whatever your position on this issue, I have one question for you: what do professionals in other countries think of us when something like this occurs? All right, I have more than one question: why could we not have done this months ago?  Why do we need to go elsewhere to have matters put right?  What will happen to us when – and it will happen – the Privy Council ceases to be our court of last resort?  Can we really trust our lives and that of our children; can we trust our birthright and that of our children, the inheritance of our forebears to these courts?

Conclusion:
I know to some Bahamians this all seems a little harsh. And we are always seeking some motive behind criticisms, whether they are political, material or otherwise. In the Glinton-Esfakis case, here are two lawyers acting on principle; principle in the ancient credos of the law, and not asking anyone whether they are right. But they are advancing profound legal arguments in the name of every Bahamian; protecting rights most Bahamian are not even aware they possess.  In addition, they have not argued for themselves. Whilst the government’s concession protects every lawyer in The Bahamas from Compliance Commission searches, Glinton-Esfakis is also seeking a declaration of the extents of banker’s fiduciary protections.  No one is paying them…and so rich and enriching is their spirit that even as they are ignored by those who stand to benefit, and the lawyers who benefited in the millions of dollars from the work the 11 pieces legislation seeks to ban ignores them…their commitment!  This has ignited the interest of lawyers up to 5,000 thousand miles away.

What will happen now?

Well in October the Privy Council will hear Glinton-Esfakis in person.  At that time in my view it will reject the position of The Bahamas Court of Appeal. They may secure the injunction formally, which will mean that lawyers will continue to be exempt until the writ action is heard.  They may instead give a ‘Final Injunction’ which will effectively strike down the sections of any law allowing for inspection of lawyers’ offices.

My preference is that the whole matter should be heard because of the absolute genius of the pleadings in this case, as may be seen in the affidavits of Maurice Glinton and Ms. Esfakis. At the Landfall Centre for Finance, Trade & International Affairs, we have a 33,000 person world wide e-mail list that awaits information on this case. When the whole matter is presented, Bahamians will at last see that Glinton-Esfakis is not about financial services legislation alone, it is in fact about the constitutional future of the Bahamas.