The Tribune

Frederick Smith QC says the separation of powers between executive and judiciary is being threatened by ‘capricious’ parliamentarians over the Save The Bays email row . . .

The judgement delivered by Justice Indra Charles in the Save The Bays email case last week is a watershed in the development of Bahamian Constitutional jurisprudence.

It is precedent setting and an historic judgement in Constitutional Law throughout the British Commonwealth.

The issues, the context in which they were raised and the current reaction by the Government, must give civil society in the Bahamas pause for careful reflection.

By mounting this case, the Plaintiffs - Save The Bays and Zachary Hampton Bacon III, the brother of Louis Bacon, one of my fellow directors - have made a great contribution to the continued development of the Rule of Law in the Bahamas for which they should be deservedly proud.

The fundamental issues

1 Do persons in the Bahamas have a constitutionally-protected right to privacy of their private email correspondence and financial information?

2 If so, did the Government, through Cabinet ministers Fred Mitchell and Jerome Fitzgerald, breach such rights inside and outside Parliament?

3 And if so, was this breach nonetheless protected by Parliamentary Privilege?

4 Does the Constitution of the Bahamas and the Rule of Law prevail in the governance of an independent British Commonwealth nation which has a written Constitution, or does Parliament under the guise of exercising Parliamentary Privilege, prevail?

5 Ultimately, is the Bahamas governed by Parliamentary Supremacy (as in England, which does not have a written constitution) or Constitutional Supremacy (as in the Bahamas, which does have a written Constitution)?

In determining the issues before the Court, a wide range of historical Constitutional principles and cases from throughout the United Kingdom and British Commonwealth were analysed and relied upon.

The ruling

The Court found that the Rule of Law and the Constitution “trumped” Parliamentary Privilege.

The Court held that Cabinet ministers and or Members of Parliament in the conduct of Parliamentary affairs and the Government in the guise of the Executive acting through Cabinet ministers inside and outside Parliament were not above the law.

The Supreme Court held that it had an exclusive jurisdiction to adjudicate on and supervise breaches of the Constitution by the Executive and the Legislature. It held that Parliament could not divest the Court of supervisory original jurisdiction and it was for the Court and not for Parliament to decide on the scope and application of Parliamentary Privilege.

The Court held that, in the exercise of such jurisdiction, it was paramount for the Judiciary to be independent and free from interference by the Executive and the Legislature.

The MPs reaction

Despite this judgement, the Government MPs continued to press the Parliamentary Committee on Privileges to continue contempt proceedings against Supreme Court Judge Indra Charles, Frederick Smith, QC, and Ferron Bethell (both trial Counsel to Save The Bays). Other MPs, such as Greg Moss and even the Speaker of the House are aghast. Some are even proclaiming that the judgement is unenforceable.

Parliament had resolved in May to refer them to the Committee to consider whether they should not be committed for contempt of the “High Court of Parliament”.

If the House Privileges Committee proceeds any further a Constitutional crisis (which is currently simmering because of such resolution) will erupt like a volcano and its lava will melt the delicate constitutional construct of the Separation of Powers doctrine and respect between the Supreme Court and Parliament.

Crossing the Rubicon

Once the idea of the Rule of Law evaporates the Bahamas will descend into the ‘Rule of Might is Right’, where capricious daily dictates of policy by ministers hold sway. It is a thin veil between a country ruled by political Might as opposed to Law. That is why the MPs that are taking such umbrage at this judgement should be more reflective and celebrate it, not criticise it.

It is under appeal. There is a stay in place. I urge them to respect the process. I suggest the MPs calm down. At the Court of Appeal, the Speaker can file an Amicus brief on behalf of all Members of the House if he wishes. The Bar Association can do likewise. Even Mr Moss can do so. This is an important case. Lambasting the Judge in and out of Parliament is not civilised conduct.

Does the Bahamas wish to continue to be a Constitutional democracy governed by the Rule of Law, or will ministers Mitchell and Fitzgerald take us across the Rubicon as Julius Caesar did in the last days of the Roman Republic?

What Constitutional rights did the Government breach?

The Court held that the actions of ministers Fitzgerald and Mitchell in Parliament were attributable to the “Government” or “Executive”; they having acted as Members of the Cabinet and not simply as MPs in abusing Save The Bays and Zachary Bacon III. Accordingly, the Government was held liable for the breaches of their Constitutional rights.

The Court found that it was Mr Fitzgerald and the Government that had breached Save The Bays’ rights and not Mr Mitchell.

The Court found that the Government acted in breach of Article 23 of the Constitution, which protected Save The Bays’ freedom of expression and privacy by obtaining, possessing, reviewing and subsequently making disclosures of their private and confidential documents and information.

The Court also found that the Government had breached Article 21 of the Constitution, which protected them from illegal search and seizure of their property without their consent or under the authority of any law.

What did the Court order?

As a result the Court made three important orders.

1 The grant of a “permanent injunction” against the Government that “prohibits the further release or publication of any information contained in the private and confidential documents” of Save The Bays and Mr Bacon.

2 The “permanent destruction and or deletion of all electronic files and or records as well as the destruction of the hard copies of all documents within 14 days” of Save The Bays’ and Mr Bacon’s documents.

3 The Government to pay “vindicatory damages” to Save The Bays and Mr Bacon in the sum of $150,000. This is the largest award ever made for such Constitutional damages in the history of Bahamian jurisprudence.

The Court held that, because a case had not being made out against Mr Mitchell, the Court would not order the Government to pay the costs of the action.

The Government appeals

On delivery of the judgement, the Government immediately gave notice of its intention to appeal this to the Court of Appeal. Any outcome from that appeal is likely to be appealed by either side to the Privy Council.

The Government also applied for a stay of execution of the judgement pending the appeal and Save The Bays did not object

The appeal to the Court of Appeal is likely to be heard within the next six months and an appeal to the Privy Council thereafter is likely to be heard within nine months.

This was a major victory for the Rule of Law and fundamental rights and freedoms in the Bahamas.

It also vindicates Save The Bays and its directors and employees, who were very much wronged by the Government in abusing their right to privacy inside and outside Parliament. You may recall the political circus in Parliament in March when Government ministers and MPs made spurious and unfounded accusations against Save The Bays and individual directors and employees

They were embarrassingly ridiculed, mocked and pilloried with allegations that they were not a legitimate environmental non-governmental organisation; that they were involved in money laundering; and that they were a political organisation bent on destabilising the Government of the Bahamas.

Putting the case in context

This judgement must be put in context. The unwarranted, gratuitous and vicious adversarial reaction by the Government against Save The Bays came as a result of a Supreme Court action launched in March by a number of the directors of Save The Bays along with Reverend C B Moss against Peter Nygard (a major political financial and funder of the governing Progressive Liberal Party (PLP) and Keod Smith for a dangerous hate and harassment campaign spanning years maintained by Messrs Nygard and Smith against them.

Why did the Government attack Save The Bays in Parliament for Peter Nygard?

The question remains: why did the Government savage and attack Save the Bays in Parliament when it had not sued the Government?

Its directors and Rev Moss had sued Peter Nygard and Keod Smith, not the Government.

On the contrary, the evidence was that Mr Nygard had maligned the Prime Minister. So, why was the Government spending the Bahamian taxpayers dollars to defend Messrs Nygard and Smith?

It is even stranger, given that to this day, neither Mr Nygard nor Mr Smith have filed a defence to the claim.

Mr Nygard’s political influence in the Bahamas is alarming and shocking. The fact that the Bahamas allows a non-citizen to hold such sway simply because he donates $5m or more to the election campaign of the now governing PLP party should cause all citizens of the Bahamas to pause and consider which direction they want the Government to take at this crossroads in the future of the Bahamas.

A mysterious pattern of behaviour

This continues a pattern of behaviour by the Government that remains mystifying - to say the least.

Each time Save The Bays or another environmental NGO such as ReEarth in the Blackbeard’s Cay dolphins case, or Save Guana Cay Reef at Baker’s Bay, or Bimini Blue Coalition, challenges a development on the basis that it is proceeding illegally, the Government rushes all the way to the Privy Council, each time spending the Bahamian taxpayers’ dollar to defend the developer instead of letting the developer spend its own money to defend itself.

Why is that? Why does the Government always defend unregulated development at the Bahamian taxpayers’ expense? What vested interest does the Government have in each development?

So, in this case, why was the Government holding brief for Mr Nygard and Mr Smith in Parliament against Save The Bays?

Why is the Government going to spend millions of taxpayers’ dollars to continue to seek to protect Mr Nygard and Mr Smith by appealing?

Why appeal the judgement?

To prove what? Does the Government really wish to win an appeal?

To boast internationally that the Government can unconstitutionally seize Save The Bays emails?

That the Government can unconstitutionally expose them in public?

That the Government cannot be held accountable because, by Parliamentary Privilege, MPs are above the organic law?

And to boast that the oldest Parliament in the New World has the power to jail a Judge and lawyers who take a case to court to protect Constitutional rights?

How internationally embarrassing will that be?

Banana Republic or Constitutional democracy?

Is the Bahamas to be regarded internationally as a Banana Republic? A rogue nation? A political pariah amongst states? A dictatorship governed by arbitrary and capricious ministerial dictate, swooning at Mr Nygard’s and every other developer’s altar of money?

This rape by the Government of Save The Bays’ right to privacy and public exposure of its private emails and financial information, coming in the wake of the disclosure of the Panama Papers, has already cast the Bahamas in an extremely negative and prejudicial light in the international financial services industry.

A score of anxious bankers have already met with and expressed concern to the Prime Minister and Minister of Financial Services, Hope Strachan.

What was in the emails?

And for what? What were the contents of the emails? Why was the Government making such a fuss about them? Why were the ministers so exercised? They were uncontroversial.

One contained a draft letter of complaint by Save The Bays to the Police about the Nygard and Smith hate campaign; the other contained a draft advertisement about Nygard Cay; another from the Grand Bahama Human Rights Association contained a draft press release about Mr Mitchell’s illegal immigration road blocks.

So what, pray tell, was so politically captivating and salacious about them? How did they convert into accusations of political destabilisation of the Government and money-laundering?

Why was the nation’s attention held hostage and transfixed in Parliament for days by ministers Mitchell and Fitzgerald painting a picture of alleged nefarious activities by Save The Bays on a canvas that did not exist?

If the actions of the Government had not been challenged and checked by this Court action, not only may the reputation of Save The Bays and its directors have been irreparably sullied and tarnished, but it also had the potential to cause the flight of much financial business and to detract from further legitimate investment.

The Government should celebrate this judgement

The Government should be proud of this judgement and celebrate it as a great day for the Rule of Law. It should not appeal it.

Parliament should end the simmering Constitutional crisis and withdraw its contempt resolution against the Judge and Counsel.

The judgment helps to promote the Bahamas as a stable democracy, where it is safe to do business and where people’s rights are protected by an “abiding respect for … the Rule of Law”, which is expressed in the Preamble to the Constitution.

The Government should divorce itself from Mr Nygard and Mr Smith.

A ray of constitutional hope

The Judgment demonstrates to the world that:

1 The Bahamas is a country that respects the Rule of Law;

2 The Judiciary is independent of the Executive and the Legislature;

3 Persons whose rights are abused in the Bahamas have recourse to independent Courts and effective redress;

4 The right to privacy of one’s private information is effectively protected in the Bahamas by the Constitution;

5 The Courts will vindicate and protect breaches of such rights.

Accordingly, the international financial services industry, which has confidence in the Bahamas as a legitimate jurisdiction within which to do business, can in the short term, be comforted in the protection of their confidential financial information by this judgement.

But not so if the Government appeals, wins an appeal, or jails a Judge and Counsel.

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