Jerome Fitzgerald
By LAMECH JOHNSON
Tribune Staff Reporter
ljohnson@tribunemedia.net
IN A landmark ruling yesterday, Supreme Court Justice Indra Charles declared that Education Minister Jerome Fitzgerald was not legally justified when he tabled the private emails of environmental action group Save The Bays in Parliament, and therefore could not be protected by parliamentary privilege.
Justice Charles, who presided over an historic constitutional motion, ruled that the Marathon MP’s actions were an infringement of the constitutional rights of the applicants and ordered Mr Fitzgerald to pay $150,000 in damages for the breach.
Mr Fitzgerald was permanently banned from disclosure and publication of any further material belonging to Save The Bays and was ordered to delete all electronic and hard copy material within 14 days.
The Office of the Attorney General said that it would appeal the ruling and was granted a stay pending the appeal.
Justice Charles said it was unquestionable that a resident’s private and confident 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.
Fred Smith, QC, Feron Bethel and Camille Cleare hailed yesterday’s ruling as “a vindication of the rule of law in the Bahamas”.
“The Coalition to Protect Clifton Bay and Zach Bacon are extremely happy with this result,” Mr Smith said.
“It was a very hard fought case, very well prepared by both sides. You can see this (in the) over 95-page judgment. The judge as well obviously spent a considerable amount of time writing this judgment. It’s a very important judgment for constitutional jurisprudence through the British Commonwealth and ,of course, this is the first time in the Bahamas that vindicatory damages have been awarded for $150,000.
“That’s even higher than Tamara Merson or Harvey Tynes’ case and I think it is a recognition by the court of how important the right to privacy in the Bahamas is (and) she was very clear that parliamentary privilege does not trump the supremacy of the Constitution or the rule of law or the courts. The courts are Supreme in the Bahamas, not parliamentarians.”
“We have a Constitution and the Constitution trumps politics – and thank God. This is something I’ve been fighting (for) over 40 years in the Bahamas. The courts of the Bahamas have repeatedly demonstrated that they are independent and that they stand for the rule of law and for the Constitution.
“And so on behalf of my clients, and the Grand Bahama Human Rights Association that has been fighting for constitutional rights for decades, I’m so very pleased that Justice Charles has delivered this judgment in favour of the Coalition and Mr Bacon.
“It is a vindication of the rule of law in the Bahamas and what it will do is also send a clear message to the international financial world that has been waiting, you know, on tenterhooks for this judgment.
“What it means is that the government of the Bahamas cannot hack into your emails or get them somehow and when you challenge them (and) they don’t explain how they got them, so this is going to help to prevent the financial services industry fleeing the Bahamas.”
Mr Smith said they are not concerned by the Crown’s indication that it would appeal the ruling against Mr Fitzgerald.
“We are as confident that the Court of Appeal and the Privy Council will uphold this as we were when we brought the case before Justice Charles and the Supreme Court in the first place. Throughout the British Commonwealth, the Constitution is repeatedly reaffirmed as being supreme and I don’t know why the government of the Bahamas, in this case, tried to take us up some garden path to suggest that the Constitution is not the supreme law of the land in the Bahamas,” he concluded.
Dr Lloyd Barnett, Loren Klein, Deputy Director of Legal Affairs Franklyn Williams, Darcell Smith-Williamson and Hyacinth Smith appeared for Mr Fitzgerald, Fox Hill MP Fred Mitchell (first respondent) and Attorney General Allyson Maynard-Gibson (third respondent) in an action 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, Fred Smith and Ferron Bethell.
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. In the House of Assembly, Mr Fitzgerald read private emails from STB members and others, which he said bolstered his claims.
Speaking outside Parliament, Mr Fitzgerald 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, Mr Mitchell claimed in Parliament in March 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 have relied to prove that the respondents were, in fact, in possession of private emails.
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.”
However, Justice Charles found against Save The Bays in its case against Foreign Affairs Minister Fred Mitchell concerning breach of the group’s constitutional rights, ruling that it had not made out a case.
In April, Justice Charles granted the injunction barring MPs from disclosing STB’s emails in Parliament. The Office of the Attorney General wants the injunction set aside.
Justice Charles ruled yesterday that: “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.
“The acts and statements made by the first and second respondents are attributable to the Government. The concept of ‘government’ of ‘executive’ is a legal fiction since it can only act through the Prime Minister and the members of the Cabinet; see Article 72 of the Constitution.
“Article 15 is a preambulatory section and is not given enforceability status by Article 28, which effectively provides for the enforcement of fundamental rights. Therefore Article 15 creates no free-standing rights under the Constitution.
“As a condition precedent to asserting a claim for constitutional protection and redress, an applicant has to make good his factual allegations of constitutional abuse. In analysing the case against each respondent separately, the applicants have failed to make out a case against the first respondent for any breaches of their fundamental rights either under Article 21 and/or Article 23 of the Constitution.
“The applicants have made out a case against the second respondent. The second respondent has acted in breach of Article 23 of the Constitution which contains an inextricable link between freedom of expression and privacy, per Newbold v Commissioner of Police 92014 - UKPC by obtaining possessing reviewing and subsequently making disclosures from the applicant’s private and confidential disclosures both inside and outside of Parliament.
“The saving provision at Article 23 (2) does not justify these interferences since they were not made ‘under the authority of any law’, the second respondent not having put forward any potential legal basis for the seizure and review of the private and confidential documents.”
“The second respondent has breached Article 21 of the Constitution which prohibits, inter alia, the search of any legal or natural person’s property without that person’s consent except where this is being done under the authority of law (as) per Attorney General of Jamaica v Williams (1988).
“In the present case, the applicant’s consent had at no stage been given for transmission to third parties let alone publication and the second respondent had not provided any argument or evidence at trial that they had obtained the private and confidential documents as a consequence of a search ‘justified by law’.
“As such, all of the second respondent’s dealings with the applicants’ correspondence, including their search and seizure or obtaining possession and perusal thereof, was in breach of the applicants’ right to protection from search and seizure of their property as guaranteed by Article 21 of the Constitution.”
“The savings clause at Article 30 of the Constitution does not save the Powers and Privileges (Senate and House of Assembly) Act 1969. On any view, the PPA only applies to what was said in parliament and has no applicability to what was said outside of parliament.”
Although the Office of the Attorney General was granted a stay pending said appeal, the status quo of the previous injunction remains in place. No orders were made by the court regarding costs against either parties for the constitutional motion.
Comments
MonkeeDoo 7 years, 9 months ago
AMEN for Bahamian justice. If he don't pay give him a new address up so !
Well_mudda_take_sic 7 years, 9 months ago
Christie will now instruct Baltron "Bag Man" Bethel to pay $150,000 to Toxic Fumes Fitz out of the "slush funds" received from Christie's Chinese friends. Meanwhile Christie and Mitchell will put great pressure on the Judge to pack her bags and leave town within the next year.
B_I_D___ 7 years, 9 months ago
Sad but most likely very true!
EasternGate 7 years, 9 months ago
So true. PLP nuttin but slime!
themessenger 7 years, 9 months ago
To use an old Bahamian expression, Don't let ya mout write checks ya ass can't cash!!!
jackbnimble 7 years, 9 months ago
He can afford it. Been on the gravy train for a while now hence his support for keeping his half dead party leader.
Alex_Charles 7 years, 9 months ago
Seems like we have avoided setting a precedent that the parliamentary privilege trumps the constitution. Make him pay then vote him out. He should be going to jail, for what he neglected to d in marathon....
Bahamianpride 7 years, 9 months ago
Don't get excited to quickly, if the history of politics in the Bahamas is any predictor, better chance of winning the powerball in the U.S than him paying one dollar..
Publius 7 years, 9 months ago
Indeed. One my celebrate the ruling itself, but it is pretty safe to assume that if any money is ever paid at all, it wont be coming from his personal pocket.
Publius 7 years, 9 months ago
may*
sealice 7 years, 9 months ago
why is the bloody AG filing an appeal???? We the people of the Bahamas don't want the Gov't to spend one red cent defending this asshole!!!!!
BoopaDoop 7 years, 9 months ago
Would it be too much to ask for a confirmation that the fine is paid? It can be done the same time we get an account of Junkanoo Carnival 2.0
TalRussell 7 years, 9 months ago
Comrades: For those who falsely thinks the Justice Judge’s, parliamentary controversial ruling is to be seen as some kinds of a sign from high above that trumps them from rearranging their "own" deckchairs in preparation for a better view of the battle they once only thought might lay ahead – best you prepare for some serious rethinking?
Id’ put a sticky note mark of some kind next to the ruling to help you keep track of them papers cause you is going need them – lots.
There will be those well-seasoned in the constitutionality of parliamentary privilege that do not share in the ruling by the “learned one?” Some may even want to go as deep as to call this the “Toggie & Bobo” inspired ruling, from high up the bench?
More interestingly, is despite the large backlog of higher courts cases spending years and years at the bottom of the "justice not heard and delivered limbo ladder" - it would seem some cases does move much more speedily through the courts system?
licks2 7 years, 9 months ago
Tal that ruling WILL NOT CHANGE. . .there are four precedent cases in the former British Empire . . . one in mother England itself! That case in Britain was ruled on by the PC and was upheld. . .the constitution stands above the house. . . MPs cannot do as they wish in the house and find "cover" against and away from the constitution! The GG and all involved know that to appeal this case is a waste of time and money. . .even if our appeal court rule in MP Fitzgerald's favor, the PC will set that ruling aside in favor of precedent cases that have already been set against MPs rogue behavior in the house. . . the house cannot protect dangerous and unconstitutional and rogue behavior of MPs who decide to not subject themselves to the rule of law!
realfreethinker 7 years, 9 months ago
Now we just need Greenslave to do his job and charge him with the criminal act
Publius 7 years, 9 months ago
This was a civil case, not a criminal case.
realfreethinker 7 years, 9 months ago
He broke the data protection laws,that made it a criminal act.
Publius 7 years, 9 months ago
He did not break the Data Protection Act. The information in those emails is not covered under the Data Protection Act and is not under the auspices of the Data Commissioner. Read the Act for yourself if you do not believe what I have just said. Fitzgerald is slime, but facts are facts as it pertains to your assertion.
licks2 7 years, 9 months ago
THEN WHAT USE IS A DATA PROTECTION ACT? I will go and read that act myself. . .should be interesting reading for real!
EasternGate 7 years, 9 months ago
Serves him right. Nuttin' but an arrogant, big nose, Ass......!
BoopaDoop 7 years, 9 months ago
We were taught that name calling is wrong. But in this case, he IS an ass.
licks2 7 years, 9 months ago
NEVER THOUGHT HIS NOSE WAS SUCH A HUNKER. . .WENT BACK AND TOOK A LOOK. . .HE DOES HAVE A SIZED "SHNOZZ" ON HIS FACE!
birdiestrachan 7 years, 9 months ago
This is strange. I agree there are so many cases before the courts. But some cases seem to come before others. There are always media reports about documents that they have received and there is no out cry. But I am not surprised by the judge ruling. Most persons on this site do not like Mr: Fitzgereld so they agree with the ruling right or wrong **,sense or no sense.
jackbnimble 7 years, 9 months ago
Birdie, Fred Smith (QC) is on the case. The lawyers have connections in the courts and can get early hearing dates.
B_I_D___ 7 years, 9 months ago
The lawyers primary tactic in almost any case is to delay and delay and delay...you can get a quick trial and judgement when you want one, most people do not, so the lawyers drag it out and delay it...and usually make themselves more money in the end.
birdiestrachan 7 years, 9 months ago
Jack it would appear so, You are correct. The out spoken QC does seem to have connections **while other cases linger. his cases move on. I note " The lawyers have connections in the courts and can get early hearing dates' some how it does not seem right. at least not to me
jackbnimble 7 years, 9 months ago
I have friends who work in law. Trust me, you can get early dates for hearings if you know the judge or the judge's clerk.
John 7 years, 9 months ago
"Abstract
The legislature and the Judiciary are the two strongest pillars of our democratic governance. The Founding Fathers intended to place them
‘
side-by-side
’
in the structural framework of the Constitution, but,
it appears that on several issues they stand ‘
diagonally-
opposite’ to each other. The issue of Parliamentary privileges is
one such issue, on which the conflict between the highest organs of democracy has reached its zenith. The Indian Legislatures though claim exclusivity in the matters of its own powers, privileges and immunities, the Supreme Court of India and overall Indian Judiciary was forced to dwell upon the issue on numerous occassions. Sometimes, to decide the existence of a certain privilege, sometimes to protect the fundamental rights of the citizens and the Press and sometimes to uphold the Constitutional spirit and values; the Judiciary in India has embarked upon this controversial issue." "The two highest organs of the democracy, the Parliament and the Judiciary are expected to work in cooperation with each other so that the democracy functioning under them can flourish to the fullest possible extent. The Indian Constitution, though has accorded these two august institutions independent roles to perform, absolute separation of power between them is not possible. The Judiciary and the Parliament while performing their respective roles, so many times and on different issues, hold different perspectives. The issue of Parliamentary privileges is also one such issue, where on one hand Parliament claims absolute sovereignty in the matters of its privileges, while on the other hand, the Judiciary as a custodian of Indian Constitution do not admit any restraint on its power of judicial review. The relationship between the judiciary and the Parliament, over the issue of Parliamentary privileges, has always been very strenuous one. The Judiciary as a custodian of Indian Constitution claims the right to interpret each and every provision of the Constitution including Art.105. On number of occasions in the past Judiciary has received an opportunity to interpret Art.105 of the Indian Constitution and also its counterpart, Art.194 meant for State Legislatures. The Judiciary is expected to play a very significant role of balancing the conflicting interests found in the society without sacrificing the Constitutional values and aspirations. The Judiciary never denied the claim of the Parliament to be supreme as to its internal affairs. It also seems to be vigilant enough not to override the principle of separation of power which demands non-interference of Judiciary into the functioning of the Parliament. But when the question is of violation of fundamental rights by the Privilege notices and actions by the Parliament, the Judiciary has to step in". ..more
Well_mudda_take_sic 7 years, 9 months ago
Thank you but most of us are quite capable of Googling things for ourselves.
John 7 years, 9 months ago
I'm sure most of you are. You goggle for you I goggled and shared, see the difference. But the main reason I posted it was that when the issue first arose a few weeks ago, I tended to side with the speaker that the learned judge was overstepping her authority and meddling in the affairs of the house of assembly. Especially since it involved Fred Smith. After the ruling was passed down and Fritzgerald was fined $150,000.00 I decided to do further research and found that it is not unusual for law makers around the world to attempt to hide behind the walls of parliament and take pot shots at persons and companies who do not have a likewise privilege. And it was not also uncommon for the courts to go after these persons and sometimes they are given hefty fines and even threats of jail time. View this in light of the new corporation this government has set up, allegedly to spy on private citizens, vis a vis phone calls, emails and any other means necessary. The headquarters is on Nassau Street.
John 7 years, 9 months ago
"The Judiciary shoulders the primary responsibility of protecting the fundamental rights of the citizens in India, and if any citizen comes to it claiming violation of the same, the Judiciary has to entertain his petition, even though it might be related to Parliamentary privileges. The Parliament treats this as an interference by Judiciary into its domain. It claims supreme authority in the matters of its own privileges and any question raised upon it by the Judiciary is not entertained by the Parliament." Dr. Pankaj D. Kakde, Assistant Professor, S. P. College of Law (Affiliated to RTM Nagpur University, Nagpur), Tadoba Road, Tukum, Chandrapur-442401. E-mail- kakdepd@gmail.com.
. Not just in the Bahamas
John 7 years, 9 months ago
So if FRED SMITH, QC, continues on his plan to run for the parliament then you see the conflict and controversy with a person having so much power and influence in the the two highest organs of democracy in the land. Protect us, ordinary citizens, O Lord.
jackbnimble 7 years, 9 months ago
The people have to vote for him first. This is not automatic.
birdiestrachan 7 years, 9 months ago
What does India have to do with the constitution of the Bahamas?
John 7 years, 9 months ago
Birdiestrachan..their constitution, like ours, is also based on British law and parlimentar government.
Tarzan 7 years, 9 months ago
To paraphrase a great parliamentary statesman: "Mr. Fitzgerald, some hurricane, some privilege."
BMW 7 years, 9 months ago
Look like the cat. 5 big nose was talking about did a 180 and hit him square in the face!!!! LOL. I hear miller singing for his supper about we are a country of laws, Bimini? Blue Lagoon? Were laws followed? Again LOL
birdiestrachan 7 years, 9 months ago
Thank you John.. for the information. The other, the one with the dirty mouth.it is all right.
truetruebahamian 7 years, 9 months ago
Pond scum like the rest of his party. Make him pay or lock up his backside along with the others who support his illegal actions.
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