The Tribune

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

THE parliamentary privilege appeal that was previously lodged by the Crown under the Christie administration was formally withdrawn and dismissed in the Court of Appeal yesterday.

In May of this year, Crown counsel Loren Klein asked Justices Dame Anita Allen, Jon Isaacs and Stella Crane-Scott for an adjournment to allow the new Attorney General Carl Bethel, QC, to be briefed on the conduct of the proceedings thus far and for instructions to be taken.

Weeks later, well ahead of yesterday’s brief hearing, the government filed notice of its intent to withdraw its appeal of the landmark Supreme Court ruling on parliamentary privilege concerning former Marathon MP and Cabinet minister Jerome Fitzgerald.

In yesterday’s brief hearing before the appellate panel, the matter was officially withdrawn and dismissed.

Outside of the Claughton House, Charlotte Street courtroom, Fred Smith, QC, spoke to the press about the outcome.

“I’m very pleased to report that the appeal by Mr Fitzgerald by the Crown against Save The Bays (STB) has been completely withdrawn and all of the costs which Save The Bays was subjected to up to the day of the withdrawal will be taxed if not agreed. And, of course, we had a cross-appeal (where) the government would get the costs of that appeal, to be taxed if not agreed,” the environmental group’s lead lawyer said.

Mr Smith said he could not speak to the legal costs for the respective appeals, but what was important “is the $150,000 that Mr Fitzgerald is going to pay with interest”.

“And Save The Bays is entitled to all of those documents that Mr Fitzgerald and his cohorts illegally had, unconstitutionally had. They committed a constitutional crime against Save The Bays. My papers, Zach Bacon’s papers, Save The Bays’ papers, my employees’ papers, it was a disgrace it was a rape of our privacy,” he said.

“And we will now require the government and Mr Fitzgerald to return all of our papers cause no doubt he had copies. I want an affidavit sworn by Mr Fitzgerald that he doesn’t have one piece of paper that belongs to me, Save The Bays, or my other clients. We are entitled to have our privacy respected and it is completely abhorrent to our constitutional democracy to have parliamentarians going into parliament, abusing their parliamentary privileges, raping our privacy in public.

“And I hope that day never happens again in The Bahamas,” Mr Smith said.

In March 2016, Mr Fitzgerald 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 supported his claims.

Speaking outside Parliament, Mr Fitzgerald had later 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.

Additionally, then Foreign Affairs Minister 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.

Coalition to Protect Clifton Bay (Save the Bays) and Zachary Bacon, the brother of hedge fund billionaire Louis Bacon, a resident of Lyford Cay, brought action against Mr Fitzgerald, Mr Mitchell and the attorney general.

However, Justice Charles found that there was no case against Mr Mitchell concerning breach of the group’s constitutional rights.

In her landmark ruling on August 2, 2016 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 STB 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.