The following is from Dr. Gilbert NMO Morris, Executive Director, The Nassau Institute (NI), November 28, 2001:

The Bahamas' Financial Service Legislation Ruled Unconstitutional:

In the Supreme Court of the Bahamas yesterday, 27^th November 2001, Justice Anita Allen ruled that "the Financial Intelligence Units (FIU) could not request the production of banking information from a licensee unless by court order", and sections of the Act empowering the FIUs to require banks to disclose depositor information were declared unconstitutional.

This is a limited victory, but a victory nonetheless in a case led by Bahamian barrister, Alfred Sears. These issues are part of the long-standing public position of The Nassau Institute (NI); which from the beginning advocated legal challenges to the new financial services legislation. This also reflects the work of Anton Keller of The Good Offices Group of European Lawmakers; Dr. Richard Rahn, and Daniel Mitchell of The Heritage Foundation and Mr. Andrew Quinlan. In commenting on the ruling, Dr. Morris stated, "what is note worthy is that the court's ruling rested on the principle of "separation of powers". This implies that the courts are not content to sit by whilst executive and legislative bodies usurp or exercise judicial functions – deciding without reference to courts on abrogation of privacy, cross border information exchanges and penalties for non-compliance. This was lawlessness, and the ruling means that once again, Bahamians and foreign depositors, lawyers and others with fiduciary duties have benefit of the protection and rule of law".

Dr. Morris warned that this is not a total victory for the rule of law. "We must continue to argue on legal grounds as we have been saying since November of 1999. At the moment, the Institute is advising on a case in which the 'statement of claim' is more widely drawn than the case in which this judgment was given". He added further: " at The Institute, we are fast at work on a comprehensive legal analysis of the Qualified Intermediary Rules, The 40 Recommendations of the FATF, the OECD's MOU and the Wolfsberg Principles, all of which have significant legal flaws, which are eminently justicable."

Dr. Morris concluded by saying: "The overarching perception which must be developed is that nations and particularly OFCs must turn to their constitutions in defining their negotiating positions. Additionally, treaties or cross-border agreements calling for harmonization – whether on financial services or trade - cannot exceed the bounds of legal propriety and cannot usurp the role of the judiciary. This is how one defends constitutional democracy and sovereignty".

Link to The Nassau Institute (NI):
www.nassauinstitute.org

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