Insight: A Simmering Constitutional Crisis Ready To Erupt
Frederick Smith QC says the separation of powers between executive and judiciary is being threatened by ‘capricious’ parliamentarians over the Save The Bays email row . . .
The
judgement delivered by Justice Indra Charles in the Save The Bays email
case last week is a watershed in the development of Bahamian
Constitutional jurisprudence.
It is precedent setting and an historic judgement in Constitutional Law throughout the British Commonwealth.
The
issues, the context in which they were raised and the current reaction
by the Government, must give civil society in the Bahamas pause for
careful reflection.
By
mounting this case, the Plaintiffs - Save The Bays and Zachary Hampton
Bacon III, the brother of Louis Bacon, one of my fellow directors - have
made a great contribution to the continued development of the Rule of
Law in the Bahamas for which they should be deservedly proud.
The fundamental issues
1
Do persons in the Bahamas have a constitutionally-protected right to
privacy of their private email correspondence and financial information?
2
If so, did the Government, through Cabinet ministers Fred Mitchell and
Jerome Fitzgerald, breach such rights inside and outside Parliament?
3 And if so, was this breach nonetheless protected by Parliamentary Privilege?
4
Does the Constitution of the Bahamas and the Rule of Law prevail in the
governance of an independent British Commonwealth nation which has a
written Constitution, or does Parliament under the guise of exercising
Parliamentary Privilege, prevail?
5
Ultimately, is the Bahamas governed by Parliamentary Supremacy (as in
England, which does not have a written constitution) or Constitutional
Supremacy (as in the Bahamas, which does have a written Constitution)?
In
determining the issues before the Court, a wide range of historical
Constitutional principles and cases from throughout the United Kingdom
and British Commonwealth were analysed and relied upon.
The ruling
The Court found that the Rule of Law and the Constitution “trumped” Parliamentary Privilege.
The
Court held that Cabinet ministers and or 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 Parliament
were not above the law.
The
Supreme Court held that it had an exclusive jurisdiction to adjudicate
on and supervise breaches of the Constitution by the Executive and the
Legislature. It held that Parliament could not divest the Court of
supervisory original jurisdiction and it was for the Court and not for
Parliament to decide on the scope and application of Parliamentary
Privilege.
The
Court held that, in the exercise of such jurisdiction, it was paramount
for the Judiciary to be independent and free from interference by the
Executive and the Legislature.
The MPs reaction
Despite
this judgement, the Government MPs continued to press the Parliamentary
Committee on Privileges to continue contempt proceedings against
Supreme Court Judge Indra Charles, Frederick Smith, QC, and Ferron
Bethell (both trial Counsel to Save The Bays). Other MPs, such as Greg
Moss and even the Speaker of the House are aghast. Some are even
proclaiming that the judgement is unenforceable.
Parliament
had resolved in May to refer them to the Committee to consider whether
they should not be committed for contempt of the “High Court of
Parliament”.
If
the House Privileges Committee proceeds any further a Constitutional
crisis (which is currently simmering because of such resolution) will
erupt like a volcano and its lava will melt the delicate constitutional
construct of the Separation of Powers doctrine and respect between the
Supreme Court and Parliament.
Crossing the Rubicon
Once
the idea of the Rule of Law evaporates the Bahamas will descend into
the ‘Rule of Might is Right’, where capricious daily dictates of policy
by ministers hold sway. It is a thin veil between a country ruled by
political Might as opposed to Law. That is why the MPs that are taking
such umbrage at this judgement should be more reflective and celebrate
it, not criticise it.
It
is under appeal. There is a stay in place. I urge them to respect the
process. I suggest the MPs calm down. At the Court of Appeal, the
Speaker can file an Amicus brief on behalf of all Members of the House
if he wishes. The Bar Association can do likewise. Even Mr Moss can do
so. This is an important case. Lambasting the Judge in and out of
Parliament is not civilised conduct.
Does
the Bahamas wish to continue to be a Constitutional democracy governed
by the Rule of Law, or will ministers Mitchell and Fitzgerald take us
across the Rubicon as Julius Caesar did in the last days of the Roman
Republic?
What Constitutional rights did the Government breach?
The
Court held that the actions of ministers Fitzgerald and Mitchell in
Parliament were attributable to the “Government” or “Executive”; they
having acted as Members of the Cabinet and not simply as MPs in abusing
Save The Bays and Zachary Bacon III. Accordingly, the Government was
held liable for the breaches of their Constitutional rights.
The Court found that it was Mr Fitzgerald and the Government that had breached Save The Bays’ rights and not Mr Mitchell.
The
Court found that the Government acted in breach of Article 23 of the
Constitution, which protected Save The Bays’ freedom of expression and
privacy by obtaining, possessing, reviewing and subsequently making
disclosures of their private and confidential documents and information.
The
Court also found that the Government had breached Article 21 of the
Constitution, which protected them from illegal search and seizure of
their property without their consent or under the authority of any law.
What did the Court order?
As a result the Court made three important orders.
1
The grant of a “permanent injunction” against the Government that
“prohibits the further release or publication of any information
contained in the private and confidential documents” of Save The Bays
and Mr Bacon.
2
The “permanent destruction and or deletion of all electronic files and
or records as well as the destruction of the hard copies of all
documents within 14 days” of Save The Bays’ and Mr Bacon’s documents.
3
The Government to pay “vindicatory damages” to Save The Bays and Mr
Bacon in the sum of $150,000. This is the largest award ever made for
such Constitutional damages in the history of Bahamian jurisprudence.
The
Court held that, because a case had not being made out against Mr
Mitchell, the Court would not order the Government to pay the costs of
the action.
The Government appeals
On
delivery of the judgement, the Government immediately gave notice of
its intention to appeal this to the Court of Appeal. Any outcome from
that appeal is likely to be appealed by either side to the Privy
Council.
The Government also applied for a stay of execution of the judgement pending the appeal and Save The Bays did not object
The
appeal to the Court of Appeal is likely to be heard within the next six
months and an appeal to the Privy Council thereafter is likely to be
heard within nine months.
This was a major victory for the Rule of Law and fundamental rights and freedoms in the Bahamas.
It
also vindicates Save The Bays and its directors and employees, who were
very much wronged by the Government in abusing their right to privacy
inside and outside Parliament. You may recall the political circus in
Parliament in March when Government ministers and MPs made spurious and
unfounded accusations against Save The Bays and individual directors and
employees
They
were embarrassingly ridiculed, mocked and pilloried with allegations
that they were not a legitimate environmental non-governmental
organisation; that they were involved in money laundering; and that they
were a political organisation bent on destabilising the Government of
the Bahamas.
Putting the case in context
This
judgement must be put in context. The unwarranted, gratuitous and
vicious adversarial reaction by the Government against Save The Bays
came as a result of a Supreme Court action launched in March by a number
of the directors of Save The Bays along with Reverend C B Moss against
Peter Nygard (a major political financial and funder of the governing
Progressive Liberal Party (PLP) and Keod Smith for a dangerous hate and
harassment campaign spanning years maintained by Messrs Nygard and Smith
against them.
Why did the Government attack Save The Bays in Parliament for Peter Nygard?
The question remains: why did the Government savage and attack Save the Bays in Parliament when it had not sued the Government?
Its directors and Rev Moss had sued Peter Nygard and Keod Smith, not the Government.
On
the contrary, the evidence was that Mr Nygard had maligned the Prime
Minister. So, why was the Government spending the Bahamian taxpayers
dollars to defend Messrs Nygard and Smith?
It is even stranger, given that to this day, neither Mr Nygard nor Mr Smith have filed a defence to the claim.
Mr
Nygard’s political influence in the Bahamas is alarming and shocking.
The fact that the Bahamas allows a non-citizen to hold such sway simply
because he donates $5m or more to the election campaign of the now
governing PLP party should cause all citizens of the Bahamas to pause
and consider which direction they want the Government to take at this
crossroads in the future of the Bahamas.
A mysterious pattern of behaviour
This continues a pattern of behaviour by the Government that remains mystifying - to say the least.
Each
time Save The Bays or another environmental NGO such as ReEarth in the
Blackbeard’s Cay dolphins case, or Save Guana Cay Reef at Baker’s Bay,
or Bimini Blue Coalition, challenges a development on the basis that it
is proceeding illegally, the Government rushes all the way to the Privy
Council, each time spending the Bahamian taxpayers’ dollar to defend the
developer instead of letting the developer spend its own money to
defend itself.
Why
is that? Why does the Government always defend unregulated development
at the Bahamian taxpayers’ expense? What vested interest does the
Government have in each development?
So, in this case, why was the Government holding brief for Mr Nygard and Mr Smith in Parliament against Save The Bays?
Why
is the Government going to spend millions of taxpayers’ dollars to
continue to seek to protect Mr Nygard and Mr Smith by appealing?
Why appeal the judgement?
To prove what? Does the Government really wish to win an appeal?
To boast internationally that the Government can unconstitutionally seize Save The Bays emails?
That the Government can unconstitutionally expose them in public?
That the Government cannot be held accountable because, by Parliamentary Privilege, MPs are above the organic law?
And
to boast that the oldest Parliament in the New World has the power to
jail a Judge and lawyers who take a case to court to protect
Constitutional rights?
How internationally embarrassing will that be?
Banana Republic or Constitutional democracy?
Is
the Bahamas to be regarded internationally as a Banana Republic? A
rogue nation? A political pariah amongst states? A dictatorship governed
by arbitrary and capricious ministerial dictate, swooning at Mr
Nygard’s and every other developer’s altar of money?
This
rape by the Government of Save The Bays’ right to privacy and public
exposure of its private emails and financial information, coming in the
wake of the disclosure of the Panama Papers, has already cast the
Bahamas in an extremely negative and prejudicial light in the
international financial services industry.
A
score of anxious bankers have already met with and expressed concern to
the Prime Minister and Minister of Financial Services, Hope Strachan.
What was in the emails?
And
for what? What were the contents of the emails? Why was the Government
making such a fuss about them? Why were the ministers so exercised? They
were uncontroversial.
One
contained a draft letter of complaint by Save The Bays to the Police
about the Nygard and Smith hate campaign; the other contained a draft
advertisement about Nygard Cay; another from the Grand Bahama Human
Rights Association contained a draft press release about Mr Mitchell’s
illegal immigration road blocks.
So
what, pray tell, was so politically captivating and salacious about
them? How did they convert into accusations of political destabilisation
of the Government and money-laundering?
Why
was the nation’s attention held hostage and transfixed in Parliament
for days by ministers Mitchell and Fitzgerald painting a picture of
alleged nefarious activities by Save The Bays on a canvas that did not
exist?
If
the actions of the Government had not been challenged and checked by
this Court action, not only may the reputation of Save The Bays and its
directors have been irreparably sullied and tarnished, but it also had
the potential to cause the flight of much financial business and to
detract from further legitimate investment.
The Government should celebrate this judgement
The Government should be proud of this judgement and celebrate it as a great day for the Rule of Law. It should not appeal it.
Parliament should end the simmering Constitutional crisis and withdraw its contempt resolution against the Judge and Counsel.
The
judgment helps to promote the Bahamas as a stable democracy, where it
is safe to do business and where people’s rights are protected by an
“abiding respect for … the Rule of Law”, which is expressed in the
Preamble to the Constitution.
The Government should divorce itself from Mr Nygard and Mr Smith.
A ray of constitutional hope
The Judgment demonstrates to the world that:
1 The Bahamas is a country that respects the Rule of Law;
2 The Judiciary is independent of the Executive and the Legislature;
3 Persons whose rights are abused in the Bahamas have recourse to independent Courts and effective redress;
4 The right to privacy of one’s private information is effectively protected in the Bahamas by the Constitution;
5 The Courts will vindicate and protect breaches of such rights.
Accordingly,
the international financial services industry, which has confidence in
the Bahamas as a legitimate jurisdiction within which to do business,
can in the short term, be comforted in the protection of their
confidential financial information by this judgement.
But not so if the Government appeals, wins an appeal, or jails a Judge and Counsel.
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August 8, 2016
