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Judicial Interference In Parliament 'Should Only Occur When All Avenues Exhausted'

By LAMECH JOHNSON

Tribune Staff Reporter

ljohnson@tribunemedia.net

A JUDGE was told on Friday that judicial interference in the internal affairs of Parliament should only occur when all other avenues have been exhausted where an issue arises.

In a substantive hearing on a constitutional motion before Justice Indra Charles concerning the recent disclosure and tabling of private Save The Bays (STB) emails in Parliament, Crown representative Dr Lloyd Barnett stressed that section 54 of the Constitution entrenched the powers and responsibilities of Parliament and that the current action "would be a direct interference with proceedings and trespass of internal affairs".

He said judicial interference could only occur in the rarest of instances when all other avenues have been exhausted, which could not be said of the matter presently before the court.

Dr Barnett, Loren Klein, Deputy Director of Legal Affairs Franklyn Williams, Darcell Smith-Williamson and Hyacinth Smith appear for Marathon MP Jerome Fitzgerald, Fox Hill MP Fred Mitchell and Attorney General Allyson Maynard-Gibson, who are all respondents 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.”

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.

"Statements made by members of the House (of Assembly) cannot be the basics of an action being brought. There's no authority case that deviates from that principal," Dr Barnett stressed on Friday.

Dr Barnett addressed the authority case of the Crown v Chaytor (2011) that was used by the applicant in support of the motion.

The case concerned the trials of three former UK Members of Parliament for false accounting in relation to the expenses scandal of 2009. During their trials, the three MPs (David Chaytor, Elliot Morley and Jim Devine) had each separately argued unsuccessfully that there was no case to answer as expenses claims were covered by the doctrine of parliamentary privilege and could not be the basis of criminal charges.

They appealed (along with Lord Hanningfield) to the Court of Appeal, in which three of the most senior judges in that court had dismissed their arguments. The MPs (although not Lord Hanningfield) successfully applied to the Supreme Court for permission to appeal the decision.

The Supreme Court, comprising nine judges to reflect the importance of the matter, heard arguments over two days in October 2010 before unanimously rejecting the submission that parliamentary privilege under either the common law or the 1689 Bill of Rights protected the defendants from prosecution.

Dr Barnett noted that the judgement in the case stressed the importance of Article 9 of the Bill of Rights concerning freedom of speech and debate in parliamentary proceedings.

"Actions outside the house would fall within those proceedings. So not only is speech in Parliament in the course of debate but matters related to those debates are protected by privilege," the lawyer said.

"I respectfully submit, beyond doubt, the authorities throughout the Commonwealth support that a Member of Parliament cannot be proceeded against based on statements made in the course of parliamentary proceedings."

He suggested that discovery and production of documents "should not be entertained because in so far as documents have been tabled in the House (of Assembly) and produced, it would be an invasion in the internal affairs of Parliament."

He also stressed that the House Speaker Dr Kendal Major had already made utterances about the future conduct of parliamentarians regarding the subject matter.

"We therefore submit this action is unprecedented (and) it conflict with some well established principles," Dr Barnett added, asking for the case to be dismissed.

Mr Smith, in response, said the applicants were "not seeking an invasion into the internal affairs of Parliament or to usual legislative process".

"It is an unrefuted fact that the tabled emails consist of a large batch of papers, and documents, emails and banking information belonging to the applicants which the government, manifested in the embodiment of both respondents, have in their possession," he said.

In stressing that the motion was not brought against Parliament or the House Speaker, Mr Smith argued that "the respondents failed to address the fact that these two members of cabinet, whether together or individually, have information and/or documents, and/or emails in either physical or digital, outside of Parliament."

"It is delivery of that property belonging to the applicants that the order is sought," Smith argued, adding that the documents did not appear in Parliament by magic.

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