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Judge: Application To Discharge Parliamentary Privilege Injunction 'Must Be Heard In Full'

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

THE answer to whether parliamentarians can use their privilege to disclose confidential information of private citizens has far-reaching implications beyond The Bahamas, a Supreme Court judge said on Friday.

Justice Indra Charles made the statement in a hearing in which representatives of the Attorney General sought to have the judge set aside an injunction that seeks to prohibit respondents, including Marathon MP Jerome Fitzgerald, Fox Hill MP Fred Mitchell and the Attorney General from appropriating, publishing or disclosing e-mails, even in Parliament, belonging to Save The Bays (STB) members.

The injunction lasts until May 12, a date fixed for a full hearing on constitutional arguments.

Loren Klein, who appeared for the Attorney General, said the current injunction was unnecessary given recent developments made in Parliament.

Though she was not opposed to hearing the Crown’s application on May 4 as requested, the Justice Charles asked: “What’s wrong with maintaining the status quo?”

“I’ve worked in other jurisdictions,” she said. “I’ve been very open with all parties. I’ve sent you articles and two cases which I relied upon to make the order. If injunction is too harsh a word, maintaining the status quo may be better. But I will not be able to discharge the order not hearing the arguments,” the judge stressed.

She recommended that both parties meet and identify the constitutional issues to be addressed and coordinate with the court.

“I do not make orders lightly,” the judge added. “If there’s going to be an application to discharge, it has to be heard in full, as I said. An injunction has been granted, a return date is the 12th of May. The injunction comes to an end on May 12 unless there’s an application for it to be renewed, correct? I’m willing to shuffle around cases to accommodate this because this is a matter of urgent attention not only to The Bahamas but to the Caribbean.”

Justice Charles said the issues at hand are obvious and will be expanded upon by both parties.

“Is Parliamentary privilege absolute if someone complains that their constitutional rights have been infringed upon, bearing in mind the walls of Parliament is sacred? Is the constitution the Supreme law of the land?” the judge said.

The matter was adjourned to May 12 for the constitutional motion but the judge noted that she would be available to both parties beforehand if needed.

“Were some private emails disclosed in Parliament?” the judge asked the Crown.

“Those are among the legal issues that has to be ventilated,” Klein said.

Justice Charles granted the injunction last Thursday.

The applicants in the matter were the Coalition to Protect Clifton Bay (Save The Bays); Zachary Bacon, the brother of hedge fund billionaire Louis Bacon, a resident of Lyford Cay, and STB director of legal affairs Fred Smith and lawyer Ferron Bethell.

A resolution was moved in Parliament on Monday by Marathon MP Jerome Fitzgerald to determine whether Justice Charles, Mr Smith and Mr Bethel should be held in contempt of the House.

It was seconded by Deputy Prime Minister Philip “Brave” Davis, who also called on the Bahamas Bar to examine the conduct of officers of the court who are involved in this matter as the courts had been dragged into the “mire”.

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