The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

A PARLIAMENTARIAN wanting to “right the wrong” of the recent disclosure and tabling of private emails in Parliament supplied Save The Bays with copies of them so that the environmental group can establish its case in court, a Supreme Court judge was told yesterday.

In a substantive hearing on a constitutional motion before Justice Indra Charles, STB’s lead lawyer, Fred Smith, QC, referred to an affidavit sworn by Paco Nunez who stated the applicants were denied access to the tabled documents despite them being made public.

Mr Nunez is the communication’s director of STB and one of many recipients named in the emails that were disclosed in the House of Assembly two months ago.

“On Sunday, May 15, 2016, the Hon MP for Fort Charlotte provided the applicants’ attorneys (upon request) with a copy of the tabled documents,” the affidavit said.

“Dr Rollins has assisted the applicants by providing the tabled documents because the second respondent made a bogus and trumped up claim in Parliament that the documents before him were proof that the Official Opposition, in concert with Save The Bays, was engaged in treasonous and seditious acts against the duly elected government of The Bahamas.

“Dr Rollins expressed to me the view that the accusations were an affront to the integrity of the members of the Official Opposition and the Bahamians they represent. It became evident to Dr Rollins when he saw copies of the tabled documents that Mr Fitzgerald made these sensational allegations without evidence and as justification for violating the constitutional right to privacy of the applicants.

“It was, in order to right the wrong, that Dr Rollins acceded to the applicants’ counsel’s request for copies of the tabled documents,” Mr Nunez stated.

The current action before Justice Charles was 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, Mr Fred Smith and Mr Feron Bethell.

Dr Lloyd Barnett, Loren Klein, Darcell Smith-Williamson and Hyacinth Smith appear for Mr Jerome Fitzgerald, Fox Hill MP Fred Mitchell (2nd respondent) and Attorney General Allyson Maynard-Gibson (3rd respondent).

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. During his contribution in the House of Assembly, Mr Fitzgerald read private emails from STB members and others, which he said bolstered his claims.

Mr Fitzgerald further 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.

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

The aforementioned details were highlighted in an affidavit filed by Mr Nunez on which the applicants have relied to prove that the respondents were, in fact, in possession of private emails.

Mr Nunez’s affidavit further stated that parts of the copies were illegible but were verified in the production of STB’s own electronic version filed to the court. 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”.

“Even though the contents of the transcripts of the Hansard reports of the 2nd Respondent’s speeches exhibited to the Affidavit of Joseph Darville filed on April 21, 2016, reflect references to many emails, papers, wire transfers, banking documents, and financial information of  Save The Bays, the Tabled Documents consist of a mere four emails or email exchanges, out of what must  clearly be a far greater number of papers,” Mr Nunez added.

At yesterday’s substantive hearing, Mr Smith said the applicants, for the purposes of the motion, “need only establish (that) the respondents have our emails”.

“Evidentially, they have disclosed and revealed those and threatened to do more. Thirdly, as a matter of evidence, the burden shifts to the respondents to justify under what law they say that the breach of our rights is permissible. We have no evidence from the respondents as to how the (emails) were obtained, whether lawful or not,” the court heard.

Mr Smith referred to the case of the Crown v Chaytor (2011) in support on the motion by the applicants. The case concerned the trials of three former UK Members of Parliament for false accounting in relation to the expenses scandal of 2009.

During their trials, the three MPs (David Chaytor, Elliot Morley and Jim Devine) had each separately argued unsuccessfully that there was no case to answer as expenses claims were covered by the doctrine of parliamentary privilege and could not be the basis of criminal charges.

They appealed (along with Lord Hanningfield) to the Court of Appeal, in which three of the most senior judges in that court had dismissed their arguments. The MPs (although not Lord Hanningfield) successfully applied to the Supreme Court for permission to appeal the decision.

The Supreme Court, comprising nine judges to reflect the importance of the matter, heard arguments over two days in October 2010 before unanimously rejecting the submission that parliamentary privilege under either the common law or the 1689 Bill of Rights protected the defendants from prosecution.

“The respondents would argue that Article 15 (c) is only a preamble to the rights set out in Articles 16 to 27. We are urging that they are in fact expressions of justiciable rights,” Mr Smith said.

Article 15 of the Constitution states: “Whereas every person in The Bahamas is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely - (a) life, liberty, security of the person and the protection of the law; (b) freedom of conscience, of expression and of assembly and association; and (c) protection for the privacy of his home and other property and from deprivation of property without compensation, the subsequent provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.”

Mr Smith argued that the Supreme Court has “original constitutional jurisdiction” to deal with issues that arise under Article 15. Mr Smith also argued that the respondents had breached Article 21(1) of the Constitution, which states that no person shall be subjected to the search of his person or his property of the entry by others on his premises without his/her expressed consent.

The attorney said the first and second named respondents “searched, obtained, and disclosed” private attorney-client protected information which is constitutionally protected.

He further argued that the 1969 Senate and House of Assembly did not make them immune from scrutiny and legal action nor does the Bill of Rights dating back to the 17th century.

“Every person in The Bahamas is entitled to protection of the law and that is the basis to civil society,” the QC stressed.

“What is clear is the government did obtain these documents and they’ve not provided legal justification for the seizure. The government, the Attorney General and the respondents have filed no evidence yet in this case for this trial. They’ve not denied anything,” the court was told.

“They’ve failed to make full disclosure of documents in their possession, the nature of them or how they came about them. You can’t come to court in a case of this nature and remain mute in the face of this challenge to the source of it. What they’re saying (is) nobody’s privacy is sacrosanct anymore despite constitutional protections,” STB’s lead lawyer argued.

Mr Smith invited the court to accept the respondent’s silence and non-filing of evidence as their acceptance of the applicant’s case and said such discretion was given to the court by the London Privy Council in the 1996 case of the Attorney General v M & M Brokers Ltd.

“During the course of the revelations (of private information), wild accusations were made against Save The Bays ... that we were involved in destabilising the government, treason, sedition,” the court heard.

Mr Smith said even if the government claimed to have a legal basis for their actions, the law under which they did so would have to be tested in court, citing another authority case of Newbold v the Commissioner of Police.

“The fact that Mr (Jerome) Fitzgerald said they got it from a political garbage can means they could not have obtained it through lawful means. Under what authority, statute, law (or) basis do they have access to applicant’s private correspondence? The law in question would need to satisfy Article 21 (2) that the interference is reasonable,” Mr Smith further argued.

The applicant’s attorney urged the court to consider the Privy Council ruling of The Methodist Church v Vernon J Symonette (Speaker of The House) which notes that parliamentary privilege “must yield to the court on constitutional supremacy”.

Mr Smith invited the court to review the affidavits filed by Martin Lundy providing context for why the matter is now before the court. Mr Lundy’s affidavit refers to five ongoing judicial reviews before the courts, most of which concern a number of executive government officials.

“The issues raised in those five judicial review all relate to the activities of Mr Nygard at Nygard Cay and whether members of executive branch of government are acting according to the law,” the court heard.

Mr Smith said his and Zach Bacon’s application in the Supreme Court was met by a counter act, not by Nygard but the executive branch of government.

“Members of the executive, the first and second respondents, used their status as MPs to hide behind privilege. The HOA (House of Assembly) has to speak freely. They’ve sought to abuse privilege for coming to the defence of Nygard in the harassment claim launched the week before.

“They used privilege of the HOA to make unfounded allegations, defamatory allegations, allegations of treason and sedition. They created this perception that the applicants were engaged in money laundering, terrorist activity and acting in complete contradiction of the law,” the court heard.

The applicant said STB were almost “blacklisted” by the public as a result of the “show” made by Fitzgerald who suggested he would hand the emails over to the police for an investigation.

He argued that these accusations are because of the serious litigation against Nygard. “And the government continues to have incestuous relationship with Mr Nygard,” Mr Smith suggested.

Mr Smith argued that there was no offence in existence in Bahamian law books with reference to “destabilising the government”. He further argued that if any law enforcement or financial regulatory body had any evidence or suspicion that STB “was committing terrorist activities or money laundering, they would have been prosecuted and, to date, it has not happened yet.”

The constitutional motion continues today.