The Tribune

THE speech delivered by former Chief Justice Sir Michael Barnett at last week’s graduation ceremony of the Eugene Dupuch Law School should be compulsory reading for all members of the legal profession in this country, since the uncompromising views which he expressed so lucidly about two main issues – the rule of law and the separation of powers – go to the heart of our nation’s democracy.

Addressing the current controversy about parliamentary privilege following the tabling in the House of Assembly by Cabinet minister Jerome Fitzgerald of private emails belonging to the Save The Bays group, Sir Michael described as alarming and regrettable the minister’s public indication that, despite a Supreme Court injunction and ruling that he had breached the group’s constitutional right to privacy, he might do this again. While anybody, including a litigant might disagree with a judgment, it should be respected unless it had been set aside by a higher court.

Referring to the House’s resolution for its Committee on Privilege to determine whether the judge and lawyers concerned should be held in contempt of it, Sir Michael said that the suggestion that a judge of the Supreme Court could be answerable to Parliament over a judgment delivered in a matter brought before the courts was an affront to the separation of powers and the independence of the judiciary - it was for the higher courts of the land to determine the propriety of a judge’s decision. These views were echoed earlier this week by the President of the Bar Association, who urged local lawyers to resist any attempt to attack the rule of law and to undermine the independence and objectivity of the judiciary.

The rule of law and separation of powers between the legislature, the executive and the judiciary are essential elements of Western constitutional democracy. The Bahamas’ Constitution provides for these three distinctly separate branches of government. Such separation is well established in the Westminster system of government. It is based on the need to protect the liberty and rights of the individual against arbitrary state power which, if unchecked, can ultimately lead to tyranny and totalitarianism. So, the judiciary must be independent and free from interference by the legislature or the executive, and such protection should not be conveniently set aside at the whim of government ministers.

In a sovereign nation like The Bahamas, its written Constitution is the highest law of the land and, as such, cannot be superseded by claimed Parliamentary supremacy. It is for the courts to review, if required to do so, legislation as well as actions by the government or private citizens to determine whether or not they are in accordance with the provisions of the Constitution.

We believe that it is neither an exaggeration of the significance of this particular case nor alarmist to say that what is at stake here is whether or not the Bahamas should continue as a constitutional democracy governed by the rule of law. Dependent as we are on tourism, financial services and foreign investment in order to survive and prosper, our country needs to be seen as a stable democracy where everybody’s rights are protected by respect for the rule of law.

If the Speaker of the House had acted decisively and stopped Mr Fitzgerald at the outset - as he later admitted he should have done - this potential constitutional crisis could have been averted. Reportedly, however, the Committee on Privilege has already met to consider how it should proceed. At the very least, its deliberations should be put on hold while the appellate process takes place. Fortunately, The Bahamas retains the Privy Council as its final Court of Appeal and, if indeed this case reaches that far, there must be considerable doubt that the appeal will succeed.

Now is the time for MPs to speak out against the Committee’s proceedings, but simultaneously we urge the Prime Minister to take decisive action for once and exercise his authority and powers to put a stop to this nonsense before it develops into an even more serious confrontation.

It is in the interests of all Bahamians to have a strong and independent judiciary in order to protect not only their own rights and interests but also those of our visitors - foreign investors, businessmen, tourists and others on whom we so often depend for our livelihoods. None of this should be allowed to be put at risk by the irresponsible actions of politicians.