The Tribune

IF THERE ever was an argument for the retention of the Privy Council as The Bahamas’ court of last resort it was dramatically illustrated in the House of Assembly in the past few weeks as a confused Speaker allowed certain members to overstep the boundaries of free speech under the guise of parliamentary privilege.

The matter ended in court before Justice Indra Charles in the Save the Bays case when she found that “members of parliament in the conduct of parliamentary affairs and the government in the guise of the Executive acting through Cabinet Ministers inside and outside of Parliament were not above the law.”

Of course, this rap across parliamentary knuckles does not sit well with some MPs. We certainly have not heard the end of their injured pride and complaints about the so-called unconstitutional judicial trimming of their parliamentary wings, which they seem to believe should be allowed to flap around in everybody’s private affairs.

As one would expect, Immigration Minister Fred Mitchell has been particularly vocal. He has urged the Speaker to hold firm, pointing out that there “has been a lot of public discussion, most of it managed by the press, that appears to be hostile to the position which has been taken by members of Parliament in defence of freedom of speech in this place.”

Mr Mitchell emphasised the importance for House Speaker Dr Kendal Major to “constantly reaffirm the point on behalf of this House that this matter is not about saving the financial services sector … this is about the right of members of Parliament to speak freely in this Parliament.”

According to Mr Mitchell, the law has always been clear on this point, adding that anything said in Parliament “has no sanction, whether criminal or civil”.

He stressed that parliamentary privilege was essential so that members of Parliament could speak freely on behalf of their constituents.

Speaker Major was holding firm, until a more sober mind must have got to him, causing him to change gears when he admitted on a radio show on Thursday that he should not have allowed Education Minister Jerome Fitzgerald to read and table in the House the private e-mails and financial transactions of Save the Bays, an environmental group. In future, he vowed, no more private e-mails will be read in the House without first being vetted.

Regardless of what Mr Mitchell says there is no such thing as absolute freedom to do as one wishes - others have to be protected from such so-called “freedoms”.

We recall years ago listening to a lecture by the late Thomistic philosopher Jacque Maritain when he used the illustration of a train to explain freedom. The train, he said, was free only as long as it chugged along the tracks and functioned in the manner for which it was designed. However, should it jump the tracks and start cavorting across the fields like a free goat, it was headed for destruction, and the destruction of everything in and around it. Abuse had destroyed that freedom.

And it was also at a very tender age that we learned that there were certain things that members were not free to discuss in the House of Assembly.

The late WCB Johnson (House Speaker from 1936 to 1942) was the first Speaker that we remember. No, we were much too young to be reporting for The Tribune, but not too young to be dragged out at 8pm to sit in the public gallery, so tiny that feet could not yet touch the floor. But in The Tribune training started young. It was then that we first learned that there were limits in the House. There were matters that were out of bounds. We recall Speaker Johnson stopping a House member, who had called the name of a private citizen, only to be cut short and reminded that the person was not there to defend himself, and so any further comment was off limits.

This was also where we learned the meaning of “sub judice”. A matter before the courts cannot be discussed in parliament. So, contrary to what Bahamians are now being told, there is no absolute freedom for parliamentarians to discuss whatever he or she wishes — there are limits. And like the train, parliamentarians are free as long as they continue on the recognised path, but deviate from that path and they invite problems that certain House members are now facing.

Parliament makes the laws, the judiciary interprets those laws. Should parliament overstep its bounds, then a complainant has the right to go to the court and ask for protection. In this case the court found that there was a matter to adjudicate, and it took action.

Why would government members inject themselves in an argument between an environmental group and Peter Nygard’s use/or abuse of his property at Lyford Cay is yet to be explained. Government members have claimed that Save the Bays in its dispute with Nygard is in some strange way trying to destabilise the government. How is this possible unless, of course, there is some truth to the rumours that at are now swirling around and shrieking for investigation.

Justice Charles in her recent ruling, found that Mr Fitzgerald’s actions in acquiring, disclosing and releasing specifically Save The Bays internal e-mails were not legally justified and therefore he could not be protected by parliamentary privilege. As a result, she ordered that he pay $150,000 in damages for the breach and barred him from any further disclosures or publications of information belonging to the Save The Bays organisation. He was ordered to delete all documents in his possession within 14 days.

At the request of the Attorney General, the judge granted a stay of execution, pending a hearing and a decision as to whether her decision would be appealed. However, what we find most obnoxious are the words that spilled from mouth of Mr Mitchell.

“And now you have rich foreigners using millions of dollars funnelled through a law firm to actually get a judge in a court to agree to do that, and we mustn’t say anything in response to that?” questioned Mr Mitchell. Is Mr Mitchell by any chance suggesting that this judge can be and has been bought? We don’t know the judge, but in all that we have heard and read she is noted not only for her knowledge of the law, but for her fearless integrity. Is someone of Mr Mitchell’s stature going to be allowed to bring her down by such an ignominious suggestion? His insinuation is one that can’t be brushed under the carpet.

If Justice Charles’ ruling is to be appealed, we hope that it goes straight to the Privy Council, where learned men, removed from all local involvement will be able to decide the law on its merits, and not get entangled with the question as to whether their decision might undermine a government.