0

Court and parliament clash - alarm bells ring

THE current controversy about parliamentary privilege and the involvement of the courts should ring alarm bells for the Bahamian public because this dispute goes to the heart of the nation’s constitutional democracy. As a letter published in these columns last week described it, there should be general outrage over the PLP government’s threatening rhetoric in contesting the ruling of the courts on the matter.

The issue is two-pronged - the right of parliamentarians to exercise free speech in the House of Assembly and the role of the courts in responding to a request by a private group seeking legal redress.

In reaction to the tabling of its emails in parliament by Cabinet minister Jerome Fitzgerald without its consent, the Save The Bays group sought and received an injunction from the courts against further disclosure, and the Minister was given a heavy fine for infringement of the group’s constitutional rights. The Attorney-General has appealed this ruling which may go all the way to the Privy Council as the Bahamas’ final Court of Appeal.

The exercise of free speech by Members of Parliament without the fear of criminal and civil liability is an important part of our constitutional arrangements in a parliamentary democracy based on the Westminster system. It derives from England’s Bill of Rights of 1689 which sought to prevent interference by the monarch.

In modern times, such a privilege is essential for the proper functioning of a legislature, not least the protection it provides against any action for defamation. But, in practice, there have to be limitations since MPs are not above the law of the land.

A balance has to be struck between the right of free speech and the constitutional rights of others, notably the right to privacy. In practice, too, MPs cannot be allowed to use threatening or abusive language or to disclose information relating to the nation’s security while they must also respect sub judice rules in relation to matters which are active in the courts.

So, this right carries with it an obligation to act responsibly both in the overall public interest and taking into account the interests of other individuals outside the House of Assembly. It follows that MPs should be careful before exercising this freedom in sensitive cases.

Erskine May, the acknowledged authoritative work on parliamentary procedure, states that parliament should regulate its own affairs and that there should be no interference by the courts in its proceedings. However, in a matter when an MP has clearly overstepped the mark on a personal basis, as in this case by breaching the constitutional privacy rights of others, and the Speaker of the House has permitted this to happen, the courts should intervene if asked to do so, since parliamentary supremacy cannot supersede the Constitution. All legislation and actions by the government or private citizens are, if necessary, subject to review by the courts to ensure that they are consistent, or do not conflict, with the Constitution as the highest law of the land.

The Speaker has now admitted publicly that he should not have allowed Mr. Fitzgerald to read out and table the emails concerned. If he had taken immediate action, he could have averted a potential constitutional crisis, but the announcement that the House of Assembly’s Committee of Privileges will now consider the matter is a welcome development. However, depending on the outcome of the committee’s deliberations, it might not end there.

This issue has become a conflict between the legislative and executive branch of government and the judiciary. Ministers should respect the separation of powers. They should also recognize that to the ‘reasonable man’ – an important test in the English Common Law on which this country’s legal system is based – there has been an abuse of parliamentary privilege in this case.

The public has a right to expect that their political leaders should act with integrity, decency and sound judgment and respect our democracy. While elected politicians come and go at the whim of the electorate, the rule of law remains forever sacrosanct for the benefit and protection of citizen, visitor and foreign investor alike.

Comments

BMW 8 years, 2 months ago

You know exactly what the decision of the hoa committee of privilages will be!

Well_mudda_take_sic 8 years, 2 months ago

TO THE EDITOR: This issue has been thoroughly canvassed by the public and your article adds nothing new of interest. Rather than just filling space in your newspaper with nothing of import or consequence for your readers, you should be publishing news grounded in good investigative journalism by your best reporters. Do you have any such reporters? If not, it might be because you don't pay enough to attract them which means you are left to rely on the occasional disgruntled public or private sector employee spilling the beans about something to both you and your competitors. No investment means you end up with no competitive edge as a daily newspaper. Already your newspaper suffers from an inordinate amount of uninteresting articles or repetitious re-written stories which are clearly aimed at doing nothing more than filling space for additional advertisements, government notices, etc. Your readership is destined to fall off if you keep this up. Many already say The Tribune is less than half the newspaper it once was in terms of quality journalism and breaking news stories. Give us news worth reading and commenting on.

Sign in to comment