The Tribune

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.