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Dr. Peter D. Maynard

Statement By Dr. Peter D. Maynard President of the Bahamas Bar Association and the Organization of Commonwealth Carribbean Bar Association at the First Annual Global Conference on Offshore Tax Planning, Compliance & Money Laundering, May 2-4, 2002, Nassau, The Bahamas

I extend a warm Bahamian welcome to the participants in this First Annual Global Conference on Offshore Tax Planning, Compliance & Money Laundering.

This event is timely not only because of September 11 and the international responses including the Patriot Act, but also because of the negative impacts overflowing from those events upon countries of the world, such as the Bahamas - small fragile countries primarily populated by people of colour - which are not in the mainstream of these events, but which depend to a very significant extent on providing financial services.

In other words, this juncture is an important "defining moment" for the Bahamas. Not only is today election day in the Bahamas, but the capitulation to OECD terrorism as the 17 member Organization of Commonwealth Caribbean Bar Associations has called it is indeed a factor in those elections.

In other words regardless of whatever view you take of the measures in the countries blacklisted by the FATF adopted under extreme pressure from the OECD pursuant to its so-called harmful tax initiative that OECD pressure has destabilized many of those fragile economics.

The destabilization is not disputed.  What is disputed is whether it is justifiable to sacrifice these countries at the altar of the war against money laundering.  I suggest that it is not justifiable.

It is not justifiable to take the blunderbuss approach and knock down innocent bystanders legitimately investing or carrying out a legitimate livelihood in international financial centres on par with  any others. More money laundering goes on in a single day in London, New York or Tokyo than  takes place in an entire year in the Bahamas, Cayman the  Cook Islands or Nauru.  There are double standards and loss of proportionality and perspective.

It is not justifiable to cleverly equate tax avoidance and tax planning with terrorism and money laundering.  It is not justifiable to abandon and abuse the Courts in the exercise of their jurisdiction to protect the rights of the individual. The means of obtaining information with the assistance of the courts - some jurisdictions such as Barbados and the Bahamas have as  respectable and long a parliamentary and jurisprudential history then the United States - should be further utilized and refined.

There, the OECD inspired legislation is under attack here and elsewhere in that

1. They violate legal professional privilege

Law Society of British Columbia v. Attorney General of Canada (with the Canadian Bar Association intervening) 2001 BCSC 1593.

Federation of Law Societies v. Attorney General of Canada, Ontario Superior Court, File 01-CV-222041, Date 2002-01-09.

2. They violate natural justice, circumvent the courts, or undermine the protection of the law, the administration of justice and the separation of powers

Financial Clearing Corporation v. Attorney General Bahamas Supreme Court C.L. No. 232/2001.

3. They impose, directly or indirectly, on The Bahamas the foreign tax or revenue laws dictated by the OECD member countries or their agents.

Holman v. Johnson (1775) 1 Cowp.341 per Lord Mansfield at p.343. No action lies in England for the enforcement of a foreign revenue law. 

Government of India v. Taylor, [1955] A.C. 491; [1955] (All E.R. 292 (HOL) U.S.A. v. Harden (1963) 41 D.L.R. (2d)72 Nassau Declaration on Financial Services, OCCBA 24 May 2001, para.1.

4. They violate lawful confidentiality and/or privacy and/or secrecy. The Constitution and the Courts take a robust view of privacy.

5. They impose unduly onerous burdens on persons, whether lawyers or otherwise, and deprive them of their livelihood.

There is a current action here in the Bahamas Supreme Court addressing these matters.

I invite you to bear these circumstances very much in mind in the course of your deliberations. What you decide is not just important to law enforcement or even to a narrow view of US or other domestic tax policy, but can affect the viability of entire nations.

I never have had difficulty in convincing people to come to the Bahamas and to return. I congratulate and thank all those responsible for bringing this event to fruition.  We are delighted to have you all here.  We value highly the ongoing discourse with you, because these matters affect us where it hurts most, in the pocket.  We want you to enjoy your stay and to come back next year for the Second Global Conference.

 

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