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Judge Confident Emails Will Not Be Disclosed While Matter Before Court

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

JUSTICE Indra Charles expressed confidence yesterday that House Speaker Dr Kendal Major would not allow further disclosure and dissemination of private emails in Parliament while a constitutional matter is before the Supreme Court.

Justice Charles also stressed that the “status quo” of her previous injunction order remains in place until the constitutional motion is heard on May 18 concerning whether parliamentarians can use their privilege to disclose confidential information of private citizens.

Last month, the judge granted an injunction to Save the Bays (STB) that bars parliamentarians from accessing or making public the personal information of the non-profit organisation. In late April, Marathon MP Jerome Fitzgerald moved a resolution in the House of Assembly to determine whether Justice Charles, STB Legal Director Fred Smith, QC, and lawyer Ferron Bethell should be held in contempt of the House of Assembly.

Justice Charles’ decision set off a debate about separation of powers between the judiciary and the legislature, with Dr Major insisting that a judge cannot dictate the behaviour of legislators in the House of Assembly.

However, Dr Major on Monday stated that parliamentarians should not seek to call judges before Parliament to answer for their rulings and urged members of the House Committee on Privilege not to pursue “unchartered territory.”

In what was to be a substantive hearing on the constitutional application of the plaintiffs, the judge was informed that neither side had come to an agreement.

“I have good news and bad news. We have an agreement on something but not everything,” Mr Smith said.

He noted that there was an agreement to allow for the applicants/plaintiffs to amend the originating notice of motion to include Article 20 of the Constitution among the others referred to in the document.

“My (learned) friends are considering whether or not to make discovery (of private information). If consent cannot be achieved, we’d like a hearing date,” Mr Smith added.

Addressing the matter of the current injunction against the respondents, Mr Smith said: “We’ve not been able to agree to either an extension of the injunction or a form of conservatory order.”

“As I understand (Dr Major) has taken certain necessary steps?” Justice Charles said, seeking confirmation.

Mr Smith said notwithstanding this, he and the remaining applicants would prefer to receive an undertaking from the respondents as “the Speaker’s ruling does not protect the applicant as much as the injunction.”

“It doesn’t prevent disclosure and discussions without the tabling. It’s conditional and it doesn’t prevent the Speaker from changing his mind,” Mr Smith said, stressing that he intended no disrespect for the House of Assembly’s head.

Mr Smith urged the court to recall that Dr Major was not present in the House when the emails were introduced and the deputy speaker allowed documents to be tabled and discussed, leading to the present action.

“Don’t you think in light of what has transpired since I granted the injunction, we must have confidence in the Speaker and Deputy Speaker? Let’s give them the benefit of the doubt. You can always return to the court, no?” Justice Charles said.

The plaintiff said it was not as simple as that because irreparable damage was done by the disclosure of private client-attorney information.

“I don’t want a situation where the Speaker allows them or others to read our emails again,” Mr Smith stressed.

Justice Charles said the Speaker has given the order that parliamentarians should not continue similar action going forward.

Mr Smith said the latest move amounted to the respondents attempting to intimidate the plaintiffs and the court from hearing the constitutional matter.

He referred the court to the case authority of MP Mark Brantley vs St Kitts Speaker Curtis Martin (2013) where the Privy Council determined that normally the court has no right to dabble in the affairs of Parliament except in the over-riding supremacy of the constitution.

Mr Smith stressed that this case determined that it was unconstitutional to deny a plaintiff access to the high court to seek protection of his constitutional rights.

He suggested that the respondents in the matter, since the injunction, have been “speaking with a forked tongue.”

He added: “If my (learned) friends cannot give a simple undertaking, then I’ll argue the motion right now. Is the Constitution the supreme law or the land or is it Parliament?”

Dr Lloyd Barnett, who appeared for the respondents, said if the plaintiffs intended to argue the motion, they would have to withdraw applications for discovery.

Dr Barnett also said he would need time to review submissions and bundles.

The Crown respondent also stressed that “nobody expected a trial (hearing) today.”

He suggested that the other side had not done the preparatory steps needed to have the hearing.

Justice Charles admitted that she had expected an agreement to be made between the two sides prior to the hearing “but that fell apart.”

The judge said she was prepared to leave it to the Speaker of the House, but was concerned that other things were transpiring during an open case.

Mr Smith said: “People (are) abusing powers in other places and saying no one can hold them accountable.”

“Fairness dictates that the status quo remain in place,” he added.

Justice Charles later told the court that she has “great confidence” in the Speaker and Deputy Speaker “that they will do the right thing,” stressing that the “status quo” of her previous order remains in place until the constitutional motion is heard on May 18.

The applicants in the matter are the Coalition to Protect Clifton Bay (Save The Bays); Zachary Bacon, the brother of hedge fund billionaire Louis Bacon, a resident of Lyford Cay, Mr Smith and Mr Bethell.

Dr Barnett, Loren Klein, Darcell Smith-Williamson and Hyacinth Smith appeared for Mr Fitzgerald, Fox Hill MP Fred Mitchell (2nd respondent) and Attorney General Allyson Maynard-Gibson (3rd respondent).

Dawson Malone and Adrian Gibson appeared with Mr Smith while Camille Cleare appeared with Mr Bethell.

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