The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

IN A landmark ruling yesterday, Supreme Court Justice Indra Charles declared that Education Minister Jerome Fitzgerald was not legally justified when he tabled the private emails of environmental action group Save The Bays in Parliament, and therefore could not be protected by parliamentary privilege.

Justice Charles, who presided over an historic constitutional motion, ruled that the Marathon MP’s actions were an infringement of the constitutional rights of the applicants and ordered Mr Fitzgerald to pay $150,000 in damages for the breach.

Mr Fitzgerald was permanently banned from disclosure and publication of any further material belonging to Save The Bays and was ordered to delete all electronic and hard copy material within 14 days.

The Office of the Attorney General said that it would appeal the ruling and was granted a stay pending the appeal.

Justice Charles said it was unquestionable that a resident’s private and confident correspondence should not be the subject of public discussion and scrutiny, let alone in the House of Assembly.

“The Courts are given an exclusive jurisdiction to adjudicate in and to supervise breaches of the Constitution by the Executive and the Legislature,” Justice Charles said.

“Parliament cannot change the scope or divest the Court of its ‘original jurisdiction’ by legislation. In addition, it is for the Court and not Parliament to decide on the scope and application of parliamentary privilege,” she added.

“As a general rule, the Court should not meddle in the internal affairs of Parliament and should leave it to regulate its own internal affairs. The Court also recognises that the authority and dignity of Parliament would be seriously compromised if it were to interfere arbitrarily in the internal procedures of Parliament.

“But if a person alleges that his/her constitutional rights have been or are being infringed in order to establish that infringement, the court would be entitled to carry out an inquiry to determine whether there was indeed a breach.”

“It is axiomatic that, a man’s private and confidential correspondence, precious to his heart, should not be the subject of public discussion and scrutiny. The second respondent (Fitzgerald) made unsubstantiated allegations about the first Applicant (STB) which he portrayed as a money-laundering organisation.

“These statements are regrettable since it had nothing to do with the mid-term budget debates which were ongoing at the time,” the judge stressed.

Fred Smith, QC, Feron Bethel and Camille Cleare hailed yesterday’s ruling as “a vindication of the rule of law in the Bahamas”.

“The Coalition to Protect Clifton Bay and Zach Bacon are extremely happy with this result,” Mr Smith said.

“It was a very hard fought case, very well prepared by both sides. You can see this (in the) over 95-page judgment. The judge as well obviously spent a considerable amount of time writing this judgment. It’s a very important judgment for constitutional jurisprudence through the British Commonwealth and ,of course, this is the first time in the Bahamas that vindicatory damages have been awarded for $150,000.

“That’s even higher than Tamara Merson or Harvey Tynes’ case and I think it is a recognition by the court of how important the right to privacy in the Bahamas is (and) she was very clear that parliamentary privilege does not trump the supremacy of the Constitution or the rule of law or the courts. The courts are Supreme in the Bahamas, not parliamentarians.”

“We have a Constitution and the Constitution trumps politics – and thank God. This is something I’ve been fighting (for) over 40 years in the Bahamas. The courts of the Bahamas have repeatedly demonstrated that they are independent and that they stand for the rule of law and for the Constitution.

“And so on behalf of my clients, and the Grand Bahama Human Rights Association that has been fighting for constitutional rights for decades, I’m so very pleased that Justice Charles has delivered this judgment in favour of the Coalition and Mr Bacon.

“It is a vindication of the rule of law in the Bahamas and what it will do is also send a clear message to the international financial world that has been waiting, you know, on tenterhooks for this judgment.

“What it means is that the government of the Bahamas cannot hack into your emails or get them somehow and when you challenge them (and) they don’t explain how they got them, so this is going to help to prevent the financial services industry fleeing the Bahamas.”

Mr Smith said they are not concerned by the Crown’s indication that it would appeal the ruling against Mr Fitzgerald.

“We are as confident that the Court of Appeal and the Privy Council will uphold this as we were when we brought the case before Justice Charles and the Supreme Court in the first place. Throughout the British Commonwealth, the Constitution is repeatedly reaffirmed as being supreme and I don’t know why the government of the Bahamas, in this case, tried to take us up some garden path to suggest that the Constitution is not the supreme law of the land in the Bahamas,” he concluded.

Dr Lloyd Barnett, Loren Klein, Deputy Director of Legal Affairs Franklyn Williams, Darcell Smith-Williamson and Hyacinth Smith appeared for Mr Fitzgerald, Fox Hill MP Fred Mitchell (first respondent) and Attorney General Allyson Maynard-Gibson (third respondent) in an action brought by the Coalition to Protect Clifton Bay (Save The Bays); Zachary Bacon, the brother of hedge fund billionaire Louis Bacon, a resident of Lyford Cay, Fred Smith and Ferron Bethell.

In March, Mr Fitzgerald, the Minister of Education, accused STB of being a political organisation seeking to “overthrow” the Progressive Liberal Party government under the guise of an environmental group. In the House of Assembly, Mr Fitzgerald read private emails from STB members and others, which he said bolstered his claims.

Speaking outside Parliament, Mr Fitzgerald later warned members of the environmental group to “batten down” because a “category five” hurricane was on its way, as he threatened to table “every single” email and bank statement in his possession if needed to protect his integrity and parliamentary privilege.

Additionally, Mr Mitchell claimed in Parliament in March that some $8.25m has been filtered through various organisations connected with STB – locally and internationally - from 2013 to 2015.

Those details were highlighted in an affidavit filed by STB’s Communications Director, Paco Nunez, on which the applicants have relied to prove that the respondents were, in fact, in possession of private emails.

Mr Nunez noted that the tabled documents did not disclose “how, or when, or the identity of the person from whom the second respondent obtained the tabled documents.”

However, Justice Charles found against Save The Bays in its case against Foreign Affairs Minister Fred Mitchell concerning breach of the group’s constitutional rights, ruling that it had not made out a case.

In April, Justice Charles granted the injunction barring MPs from disclosing STB’s emails in Parliament. The Office of the Attorney General wants the injunction set aside.

Justice Charles ruled yesterday that: “In the Bahamas, the Constitution is the supreme law of the land and the Court is the guardian of the Constitution.

“Parliamentary privilege is trumped by breaches of the Constitution and although Parliament is supreme, it is not as supreme as the Constitution. “Therefore, Parliament cannot use its privileges to trample on the constitutional rights of an individual. In construing constitutional provisions, a broad and generous approach is required to give individuals the full measure of the rights and freedoms referred to in the Constitution.

“The acts and statements made by the first and second respondents are attributable to the Government. The concept of ‘government’ of ‘executive’ is a legal fiction since it can only act through the Prime Minister and the members of the Cabinet; see Article 72 of the Constitution.

“Article 15 is a preambulatory section and is not given enforceability status by Article 28, which effectively provides for the enforcement of fundamental rights. Therefore Article 15 creates no free-standing rights under the Constitution.

“As a condition precedent to asserting a claim for constitutional protection and redress, an applicant has to make good his factual allegations of constitutional abuse. In analysing the case against each respondent separately, the applicants have failed to make out a case against the first respondent for any breaches of their fundamental rights either under Article 21 and/or Article 23 of the Constitution.

“The applicants have made out a case against the second respondent. The second respondent has acted in breach of Article 23 of the Constitution which contains an inextricable link between freedom of expression and privacy, per Newbold v Commissioner of Police 92014 - UKPC by obtaining possessing reviewing and subsequently making disclosures from the applicant’s private and confidential disclosures both inside and outside of Parliament.

“The saving provision at Article 23 (2) does not justify these interferences since they were not made ‘under the authority of any law’, the second respondent not having put forward any potential legal basis for the seizure and review of the private and confidential documents.”

“The second respondent has breached Article 21 of the Constitution which prohibits, inter alia, the search of any legal or natural person’s property without that person’s consent except where this is being done under the authority of law (as) per Attorney General of Jamaica v Williams (1988).

“In the present case, the applicant’s consent had at no stage been given for transmission to third parties let alone publication and the second respondent had not provided any argument or evidence at trial that they had obtained the private and confidential documents as a consequence of a search ‘justified by law’.

“As such, all of the second respondent’s dealings with the applicants’ correspondence, including their search and seizure or obtaining possession and perusal thereof, was in breach of the applicants’ right to protection from search and seizure of their property as guaranteed by Article 21 of the Constitution.”

“The savings clause at Article 30 of the Constitution does not save the Powers and Privileges (Senate and House of Assembly) Act 1969. On any view, the PPA only applies to what was said in parliament and has no applicability to what was said outside of parliament.”

Although the Office of the Attorney General was granted a stay pending said appeal, the status quo of the previous injunction remains in place. No orders were made by the court regarding costs against either parties for the constitutional motion.