The Tribune

BY FAY SIMMONS

TRIBUNE Business Reporter

jsimmons@tribunemedia.net

THE PUBLIC Accounts Committee risks being taken to the Supreme Court over its decision to summon former attorney general Ryan Pinder, KC, as West Grand Bahama MP, Kingsley Smith, yesterday voiced fears it is acting beyond its legal authority.

Mr Smith, a minority Progressive Liberal Party (PLP) member of the PAC, challenged the committee's November 3 decision to summon Mr Pinder in connection with its investigation into the National Investment Fund (NIF), arguing the summons was issued without the express permission of the full House of Assembly.

He called for a debate on the matter, warning that the Committee could face adverse judicial declarations and sanctions if it continued to act outside its powers.

“I would request a debate on this issue, so that the House may ventilate this matter and inform the House and the clerk and the people who we represent may understand clearly what is happening,” said Mr Smith.

He argued that while the Powers and Privileges (Senate and House of Assembly) Act permits a parliamentary committee to summon witnesses, it can only do so with the express authority of the chamber by which it was appointed, signified by resolution.

“It is clear that the PAC has not sought or received express authority from the House of Assembly to issue a summons to Ryan Pinder KC and is acting ultra vires its powers,” the west Grand Bahama MP said.

Mr Smith added that the Committee had voted to summon Mr Pinder despite being informed by his successor as attorney general, Wayne Munroe KC, that he remained bound by his oath of office, Cabinet confidentiality and legal advice and professional privilege.

He said Mr Munroe, who gave sworn evidence before the committee on October 15, had also directed Mr Pinder not to disclose information protected by those obligations.

According to Mr Smith, Mr Munroe subsequently wrote to the PAC on November 2 warning he would hold Mr Pinder to account if he breached his oath or legal client-attorney privilege.

Mr Smith said Mr Munroe had indicated he may have to initiate action before the Supreme Court if the Ccommittee continued to act outside its authority.

“Madam Speaker, if permitted to continue to act ultra vires, the PAC’s action would result in a potential imbroglio where a House of Assembly committee is the subject of adverse declarations and sanctions by the judiciary in an action brought by the executive involving a now private citizen,” he said.

Mr Smith also argued that even if the House were to approve the summons, Mr Pinder would remain bound by his oath of office and would be unable to answer the questions the Committee intended to ask.

He pointed to the fact that Mr Munroe, a senator, had attended the PAC voluntarily, noting that the legislation prohibits a House committee from summoning a member of the other chamber.

Mr Pinder, he said, had not participated in the NIF resolution debate in the Senate and therefore could not provide evidence in the same manner as the current attorney general.

However, Michaela Barnett-Ellis, a member of the PAC, defended the Committee's decision, noting it had sought guidance from Parliament’s in-house counsel on the correct procedure for issuing the summons.

“Yesterday, when the Committee sought to issue the summons, we asked for counsel from the in-house counsel from the House of Parliament as to what the correct procedure was to issue the summons,” she said.

“We acted on that advice at the time. The advice was that given the rules, we were able to issue the summons in the procedure that we issued the summons.”

Mrs Barnett-Ellis also challenged Mr Smith's assertion that all questions intended for Mr Pinder would necessarily be covered by legal privilege. “The other issue, Madam Speaker, is the fact that the questions that the PAC had to ask Mr Ryan Pinder do not all necessarily fall within his privilege,” she said.

She argued that the information provided by Mr Munroe had included background information that was not protected by privilege. Mrs Barnett-Ellis said the PAC had also written to Michael Halkitis, minister of finance, seeking a waiver of privilege, arguing that the minister's disclosure that he had acted on legal advice meant the public should be entitled to know the content of that advice.

“Having revealed to the public that he acted on legal advice, it is our considered view that, having made that admission, it follows that the public ought to know the content of that advice,” she said. Mrs Barnett-Ellis added that the Committee welcomed a debate on the matter.

Speaker Patricia Deveaux said she had listened to the arguments and reviewed documents submitted to her, but would respond to members in writing before the next sitting. She also said she would seek further legal advice on the issue.

“I have to stand on the evidence that is now before me,” said Ms Deveaux. “The statute law in this country trumps any other material here in this Honourable Assembly.”

The dispute comes amid the PAC's ongoing investigation into the NIF, which has been examining the legal authority for the management of an account bearing the fund's name and transactions involving hundreds of millions of dollars.

The committee has been seeking to establish the legal advice relied upon by the Ministry of Finance and Treasury in relation to the fund, including the reported $310.9m in spending on airport, roads, water and court complex upgrades and approximately $700m in excess government borrowing receipts publicly linked to the NIF.

Opposition leader Michael Pintard has previously said the PAC was still seeking financial records needed to account for the funds and establish who authorised the transactions. The Government has defended its handling of the money, citing legal advice and the Public Finance Management Act. The PAC's investigation remains ongoing, with no final findings yet made.