The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

CHIEF Justice Sir Hartman Longley yesterday denounced an attempt by Parliament to determine whether a Supreme Court judge should be held in contempt of the House of Assembly for her landmark ruling on the limits of parliamentary privilege.

Last August, Justice Indra Charles ruled that Marathon MP Jerome Fitzgerald infringed on constitutional rights when he tabled the private emails of Save The Bays in Parliament, and therefore could not be protected by parliamentary privilege. Justice Charles ordered Mr Fitzgerald to pay $150,000 in damages for the breach, and granted a permanent injunction barring parliamentarians from accessing or making public the personal information of the non-profit organisation.

In Parliament last year, Mr Fitzgerald moved a resolution for the House Committee on Privilege to determine whether Justice Charles, STB Director Fred Smith, QC, and lawyer Ferron Bethell should be held in contempt of the House of Assembly.

Mr Fitzgerald also subsequently filed an appeal to have Justice Charles’ ruling overturned which raised speculation of whether there would be a conflict given that the matter was now under judicial consideration.

On November 30, 2016, however, Parliament’s Chief Clerk Maurice Tynes confirmed to The Tribune that the Committee on Privilege had decided to postpone its probe into this matter until the Court of Appeal makes a ruling on Mr Fitzgerald’s appeal.

Addressing scores of legal officials at the 2017 Legal Year opening ceremony held in the Supreme Court yesterday, Sir Hartman addressed the controversial issue.

“It is my hope that all and sundry will come to accept, in a real way, the principle of the independence of the judiciary, not just by paying lip service,” Sir Hartman said.

“I sat in my office the other day and watched in dismay (as) the judgment of Justice Indra Charles was assailed publicly. Matters sub judice are not generally made the subject of comment in Parliament or elsewhere. That is a rule of long standing that is observed throughout the Commonwealth and in most civilised countries.

“I have said repeatedly the courts exist to address grievances and disputes. And since we deal with a multi-tiered system, when one is aggrieved by a decision at one level may pursue justice at another level of the system. We should not berate and try to demonise and threaten, with imprisonment, judges who are doing their best,” he added.

Sir Hartman’s view echoed that of former Chief Justice Sir Michael Barnett, who in September, called the defiant response of Mr Fitzgerald to the landmark ruling alarming and regrettable. He called the suggestion that Justice Charles could be summoned to Parliament to defend her judgment an “affront to the separation of powers and the independence of the judiciary.”

In March 2016, 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. In the House of Assembly, Mr Fitzgerald read private emails from STB members and others, which he said bolstered his claims.

Additionally, Fox Hill MP Fred Mitchell claimed in Parliament in March 2016 that some $8.25m has been filtered through various organisations connected with STB – locally and internationally - from 2013 to 2015.

Those details were highlighted in an affidavit filed by STB’s Communications Director Paco Nunez, on which the applicants had relied to prove that the respondents were, in fact, in possession of private emails.

In her landmark ruling on August 2, Justice Charles said it was unquestionable that a resident’s private correspondence should not be the subject of public discussion and scrutiny, let alone in the House of Assembly.

“The courts are given an exclusive jurisdiction to adjudicate in and to supervise breaches of the Constitution by the executive and the legislature,” Justice Charles said.

“Parliament cannot change the scope or divest the court of its ‘original jurisdiction’ by legislation. In addition, it is for the court and not Parliament to decide on the scope and application of parliamentary privilege,” she added.

“As a general rule, the court should not meddle in the internal affairs of Parliament and should leave it to regulate its own internal affairs. The court also recognises that the authority and dignity of Parliament would be seriously compromised if it were to interfere arbitrarily in the internal procedures of Parliament.

“But if a person alleges that his/her constitutional rights have been or are being infringed in order to establish that infringement, the court would be entitled to carry out an inquiry to determine whether there was indeed a breach.”

“It is axiomatic that, a man’s private and confidential correspondence, precious to his heart, should not be the subject of public discussion and scrutiny. The second respondent (Fitzgerald) made unsubstantiated allegations about the first Applicant (STB) which he portrayed as a money-laundering organisation.

“These statements are regrettable since it had nothing to do with the mid-term budget debates which were ongoing at the time,” the judge stressed.

“In the Bahamas, the Constitution is the supreme law of the land and the Court is the guardian of the Constitution.

“Parliamentary privilege is trumped by breaches of the Constitution and although Parliament is supreme, it is not as supreme as the Constitution. Therefore, Parliament cannot use its privileges to trample on the constitutional rights of an individual. In construing constitutional provisions, a broad and generous approach is required to give individuals the full measure of the rights and freedoms referred to in the Constitution,” Justice Charles ruled.

Justice Charles ruled against Save The Bays in its case against Mr Mitchell concerning breach of the group’s constitutional rights, ruling that it had not made out a case in this regard.