The Bahamas passes New Lawto Restrict Court "Fishing Trips"
by Mandy Robinson Tax-news.com,London
A prominent Bahamian attorney has arguedthat the recently implemented amendments to the Evidence (Proceedingsin Other Jurisdictions) Act 2000 will restrict the Bahamian courtsin their efforts to assist their foreign counterparts.
John Delaney, a partner at Nassau law firm Higgs & Johnson,explains that although the objective of the new law was to enablethe Bahamas' financial sector to meet international best practice,it contained "anti-fishing" provisions that would limitthe amount of information that the Bahamas could provide.
"Fishing" is a particular method of inquiry that isemployed by court officials who would ask a broad spectrum ofunspecific questions in the hope that the answers will disclosethe information needed to bring prosecutions to a satisfactoryconclusion.
Mr. Delaney says many attorneys are confused over the Bahamas'position on "fishing": 'there has been much controversyas to whether foreign agencies would now be able to fish in theBahamas for evidence in civil and criminal matters.'
Mr Delaney refers to Section Five of the new legislation, whichhe says may throw some light on this controversy. The law states:'An order under this section shall not require any particularsteps to be taken unless they are steps which can be requiredto be taken by way of obtaining evidence for the purposes of civilproceedings in the courts.'
Therefore, Mr Delaney explains, the new law will result in thecessation of irrelevant questioning as well as restricting theamount of evidence that overseas courts can receive from the Bahamas.
In addition to this, the law also protects witnesses from "oppressiveforeign requests" and dictates that foreign courts are toidentify the papers they require and to provide evidence thatthey are in existence. 'In short,' Mr Delaney continues, 'it maybe expected that the Bahamian court would follow the decisionsof the English courts and not allow "fishing"'.
Recent legislative amendments have been implemented as a resultof Prime Minister Hubert Ingraham's trip to North America wherehe and some key members of his cabinet embarked upon a seriesof discussions with representatives from the US and Canadian governmentsand leaders of major financial institutions.
The purpose of the official visit was to discuss ways of redeemingthe Bahamas' good reputation as an offshore financial centre afterits recent inclusion on an OECD blacklist.
During the visit Mr Ingraham said it had become clear that ifthe Bahamas desired the support and endorsement of the UnitedStates, the Bahamian government would have to comply 'fully withthe new internationally accepted practices now current in majorfinancial centres in the developed world'. Hence the need forthe government to reform certain pieces of legislation.
However, the reforms that have been implemented as well as thoseproposed, continue to be at the centre of much controversy inthe Bahamas, as opposition senators accuse the government of pushingthrough the new laws too quickly.
The opposition complains that it has had little opportunity tovoice its concerns over the consequences that may be in storefor the Bahamas as a result of the reforms, and felt it was notlistened to in senate debates. Indeed, most opposition leadersrefused to take part in the eventual vote to accept the amendmentto the Evidence (Proceedings in Other Jurisdictions) Act 2000.
Mr Delaney says the government is to enact a Criminal Justice(International Co-operation) Act, that would empower the Bahamiancourts to exchange information and extradite criminal suspectsduring investigations and before trial stage.
The government is planning a series of legislative amendmentsto remedy deficencies in the law, which will affect the CentralBank, the Money Laundering (Proceeds of Crime) Act, Mutual LegalAssistance procedures, Bank and Trust Companies, and the InternationalBusiness Companies Act.