Mike Smith Article Reprinted from The Bahama Journal
04/09/2003
 

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.

Maurice Glinton: To understand the real position, one must go back to July 30th of last year, when on an approach to the Supreme Court for Interim Relief, the Chief Justice was minded to grant the Interim Relief based on his assessment of the law and the jurisprudential landscape of the Commonwealth in general.  However, shortly before he was about to deliver his ruling another decision in the Court of Appeal - unrelated to our case, in terms of the parties to that case - was handed down, which the Chief Justice interpreted as binding him and restricting his ability to grant the relief.  So, he essentially, said so in his ruling that he was minded to, but he felt constrained, as he understood that law, that decision of the Court of Appeal.  This is a case of McEwan, and its impact on the ability of the Supreme Court to grant interlocutory relief in cases challenging the constitutionality of laws.  Of course we disagreed with him, but the unfortunate thing there is that we did not have an opportunity to persuade him that in fact McEwan's decision was either relevant to our case, or indeed it could be distinguished.  So we ended up going to the Court of Appeal, the danger there in going to the Court of Appeal was that we had to accept that we were in a very delicate position for this reason: firstly as we appreciated the ruling in McEwan - the Court of Appeal itself had overstepped its bounds.  Under the Constitution of The Bahamas, it is the Supreme Court which has original jurisdiction with respect to Article 28 challenges - these are challenges where the individual can on the basis that his fundamental rights are being contravened or have been contravened or likely to be contravened, can go to the court and get relief, that is exclusively within the ambit of the Supreme Court - what we call very Special Jurisdiction - now, what had happened in McEwan's case is that Justice Hall had earlier granted a similar relief - interim relief - this is challenging the Vow of Secrecy etc. and somehow, that decision went on to appeal really in the dead of night one evening - whereby they overturned the decision.  Now, in our respectful opinion, I don't know whether we would have an opportunity to have that ruling reassessed (hopefully in October), but in our opinion, the Court of Appeal had overstepped its bounds. The Court of Appeal's jurisdiction is only limited to final decisions coming from the Supreme Court and that must be so for this reason - if it is the Supreme Court which must ultimately grant final relief it must be on the basis that it is also in the position to determine whether in a particular case, it is a case with some merit, and that it warrants granting what we call interim relief until such time as it can hear all of the issues, all of the facts, all of the submissions of council and then give a final position. Otherwise, if the Supreme Court forms a view that this case warrants interim intervention, by way of relief and it is possible for the losing party to just run to the Court of Appeal and have it set aside, then you must ask 'what is the purpose of Article 28?

Mike Smith: Which is?

Mr. Glinton: Which is to give the Supreme Court the special jurisdiction to determine whether in fact a person's fundamental rights have been contravened in a way that warrants redress.  In this particular case, we felt that the Court of Appeal had overstepped its bounds.  It had no business overturning the Justice's interlocutory ruling granting interim relief to Mr. McEwan. But we got caught with it, even though we were parties to that case and that our case was totally unrelated.  Once the Court of Appeal did that and the Chief Justice was of the view that he was bound by it, then we found ourselves really having a decision made against us, but without having been heard.  So, we go to the Court of Appeal, and the Court of Appeal after hearing us for basically less than a day, ruled in our favour, set aside the Chief Justice ruling whereby he denied his appeal and sent us back to the Chief Justice with a view that he should hear the substantive issues, rather than interlocutory appeal.  Now, you can see the mischief in that as well.

Mr. Smith: Are you saying that the Appeals Court was in fact mischievous?

Mr. Glinton: Well I'm saying here is the mischief that resulted - if we were successful - as indeed we were and the records reflect this - and we were sent back to the judge with a view that he should hear us, it still was not within the Court of Appeal's ambit to determine for the judge which matters he should hear and in what order.  In other words, the Court of Appeal cannot usurp the functions or the discretion of a Supreme Court Judge who has season of the trial of the case - so here was the Court of Appeal accepting that we were right and that we were entitled to have Justice Hall's ruling set aside, sending us back to him, but in these words to hear the substantive issues but not the interlocutory manner - well alright - that is not the full story because we went back to Justice Hall fully understanding too that even within the very narrow interpretation - or the narrowest of interpretation - of the Court of Appeal's remit to him it was still possible for him to say 'listen let us put this matter on a schedule for final trail, but in the meantime, Mr. Attorney General, either you are able to assure this court that nothing will be done, by way of enforcing those laws against Mr. Glinton and other members of the bar or I will grant the order to suspend these laws as indeed was done and already done in Canada'.  It is very strange how these things begin to evolve, because we did not know at the same time that there were similar provisions in the Canadian Proceeds of Crime Act, which had caught the attention of the Canadian Bar and their first attack was in the Province of British Columbia, where a magnificent judgement by Madam Justice Allen. She in fact granted them the relief, suspended the application of the laws to lawyers on these grounds, on the basis that because of the existence of lawyer/client privilege these laws insofar as they required lawyers to do other things, which might possibly undermine lawyer/client privilege.  It was not right for lawyers to be in that conflicting situation.

Mr. Smith: The nuts and bolts of this matter is  - you are seeking ultimately the Privy Council to ensure that you get a ruling in your favour, which means that the compliance commission cannot inspect the files of lawyers.

Mr. Glinton: That's one aspect of it.  The real aspect of this dilemma which lawyers find themselves under since the 29th of December 2002, on the one hand you have rules, long established rules, which require lawyers to be very faithful to their clients. They cannot divulge information, indeed the policy of the rule, which was encouraged by the court need the lawyer/client privilege is a judge made rule, was to ensure that the average litigant or the mendicant or the person who was out there trying to determine whether he has a cause which ought to be fought in the court formally, rather than with machetes, axes and rocks.  He is able to come to somebody who is trained in the law and ask for an opinion and in the course of doing so, pour out his soul, disclosing everything because as lawyers as the conduits to the courts must also be in a position to say to the courts everything as truthfully as possible.

Mr. Smith: Now that works well in an ideal world, but we know, that all lawyers are not completely ethical. Some lawyers have been known to act in a manner that would not be considered ethical or in the purview of the law, and the ultimate objective of The Compliance Commission and the other authorities i.e. the Central Bank and in some cases the minister would be to ensure that at the end of the day we don't have malfeasance or you don't have people usurping the law, using lawyers to money launder, and conduct other illegal transactions.  What I'm getting from you, your argument is good if lawyers are totally ethical, and do not sway from that course, but in the event that they do, what is the yardstick and how do you clear up that mess?

Mr. Glinton:  I'll answer that in two ways, because I think we are a little bit cross prosthesis here.  That was not the objective of the laws, which The Compliance Commission have to enforce (I'll get back to that), the fact that some men have been known to commit murder does not condemn all men to the title of murderers.  I don't subscribe to the notion that we know that some lawyers don't follow the law, I don't subscribe to that at all, because at the end of the day they are supposed to, and when they don't, there has always been in place either under the General Criminal Law, or under the rules regulating our practice at the Bar to discipline lawyers.  So lets leave that aside because that cannot really dictate to the constitution the way that the constitution is informed, and was meant to be applied.  What in fact the purpose of the laws were, and when they were enacted, there were various justifications for them - one was to combat money laundering - one was to combat drug trafficking - one was to combat the illicit trafficking in arms and narcotics.  As things began to unfold, it became quite obvious to us that those were the moral pitches, those were the moral tones where upon which these laws and the justifications for them were being pitched. What really was at the heart of it all was the exchange of tax information, that's what it boiled down to.  All of those other matters were always in place domestically and internationally were legal regimes to combat all of these things.  Lawyers could be prosecuted, lawyers could be disciplined at the Bar and that's what we argued.  But that's not the concern of Leandra and myself.  We are not concerned about that. Leandra and I don't even practice in the Criminal Law area.  What this was about, was understanding one of those basic concepts, those very fundamental principles, going to the rule of law. I started to tell you the justification for Madam Justice Allan's decision in British Columbia - it was simply this - she recognized that these laws, strictly enforced, had a regulatory function even upon lawyers and why that was potentially disastrous, was that lawyers had always been recognized as companions working within the administration of justice, it is really from the Bar that judges eventually evolved. So, if you are able to regulate the Bar, and regulate lawyers in the way that these laws can be strictly enforced, it meant that the courts themselves had ceased to be the independent and impartial jury that they were meant to be.

Mr. Smith: Your premises are based on the fact that these systems work. Many Bahamians are of the view that the Bar is not an effective tool in regulating members of the legal profession.

Mr. Glinton: First let me clear up a point too. The relief which we were seeking on an interim basis, was only to suspend the application of those laws until such time as the court could try the case in its entirety.  If we are right, then those laws would be struck down as unconstitutional.  If we are wrong, either because they don't go all the way, but the court goes partly in modifying them, it would still mean that we would have new laws to digest in their place.  If we are absolutely and totally wrong, then those laws will apply.  But, if I am to go by what has already been decided by the House of Lords, Morgan Grantfelt, and most recently in the case involving the Auckland City Law Society, dealing with this question of lawyer/client privilege and the case of Daniels Corporation out of Australia, and several Supreme Court decisions in Canada, we are hopeful that in fact the Privy Council will recognized what in fact is already said just a few months ago and will prove us right.

Let me deal now with the other question about lawyers - obviously when I speak of lawyers, I speak in a very defensive mode, is because I must, in fact, be seen to be upholding traditions of the Bar, and one of the traditions of the Bar would require us to give ourselves in any community service. There are many of us who do that, for example you would have noted from my biographical that I defend person who have been sentenced to Death.  I don't even operate from in the criminal field, I don't do murder trials, it is only after they have had their day - so to speak - in the Criminal Courts that I get a call from somebody, it could be somebody here locally or it could be somebody in London saying that they need some assistance, so therefore I must go to that. I say this not boastingly; we have been very successful in trying to bring some clarity to the law. Prior to now there was this view, and here is where some of us (a very small group of us) takes special satisfaction, because many of the issues, which arose and which began to arise in the late 80s, with myself and persons like Lester Mortimer, and Fred Smith and later on the present Attorney General Alfred Sears, the truth of the matter is this - we have prevailed eventually upon the final appellate bodies, we've been able to inform their reasoning and their thinking to a point now that those very same things in our lifetime that we have argued for now is law of the land.