Supreme Court Justice Indra Charles ruled yesterday that Marathon MP Jerome Fitzgerald breached the constitutional right to privacy of members of the environmental group Save The Bays (STB) when he disclosed their private emails and financial details in Parliament, and ordered him to pay $150,000 in damages.
The ruling was handed down yesterday morning.
Charles said Fitzgerald's disclosure of STB's private information in Parliament, which he claimed he got
from his "political garbage can", was a "deliberate act made to avoid scrutiny by purporting to hide behind the cloak of parliamentary privilege".
"It is axiomatic that a man's private and confidential correspondence, precious to his heart, should not be the subject of public discussion and scrutiny," Charles said in her ruling.
"The second respondent (Fitzgerald) made unsubstantiated allegations about the first applicant (STB), which he portrayed as a money laundering organization.
"These statements are regrettable since it had nothing to do with the mid-term budget debate, which was ongoing at the time."
Charles granted a permanent injunction prohibiting Fitzgerald from disclosing or publishing any private information belonging to STB and ordered that Fitzgerald destroy and delete all material within 14 days.
She also ordered that the MP provide an affidavit of compliance within the same time period.
Attorney Loren Klein, who represents the respondents, including Fox Hill MP Fred Mitchell and the Office of the Attorney General, was granted a stay of the order pending an appeal.
The applicants in the matter were the Coalition to Protect Clifton Bay (STB); 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.
STB was seeking a permanent injunction against Fitzgerald and Mitchell.
However, Charles said Mitchell was not in breach.
Outside court, Smith expressed confidence the Court of Appeal will uphold the ruling.
"The courts are supreme in The Bahamas, not parliamentarians," he told the media.
"We have a constitution and the constitution trumps politics.
"Thank God. This is something I have been fighting for over 40 years in The Bahamas.
"The courts in The Bahamas have repeatedly demonstrated that they are independent and that they stand for the rule of law and the constitution."
In March, Fitzgerald read from private and confidential emails and other documents belonging to STB as he tried to make a case that the group was part of a plot to destabilize the government.
Speaker of the House of Assembly Dr. Kendal Major ordered that the documents be tabled.
He subsequently refused to release the tabled documents, according to court documents.
Mitchell also referenced the emails in Parliament in March.
STB applied and was granted an ex parte injunction in April to prevent further disclosure of its emails ahead of a substantive hearing.
The Office of the Attorney General sought to have the matter set aside, but was unsuccessful.
The injunction caused an uproar in Parliament.
Major condemned the order, calling it a "blatant breach of parliamentary privilege" and said it violated the "principle of the separation of powers critical to parliamentary democracy".
Fitzgerald moved a motion for the matter to be sent before the House's Committee of Privilege.
He also suggested that Smith and Charles be made to appear before the committee to answer for the injunction.
But in May, Major said the move to call the judge would be a "gross violation" of the separation of powers.
Committee of Privilege Chairman and Central and South Eleuthera MP Damian Gomez sat in court during the ruling yesterday.
Smith told The Nassau Guardian this was highly inappropriate.

Separation of Powers

In her ruling, Charles said the Supreme Court has the "original jurisdiction" to decide over breaches of the constitution, which is the supreme law of the land, and Parliament cannot change the scope or divest the court of this original jurisdiction by legislation.
She also said the government cannot rely on the "shield of parliamentary privilege to oust the jurisdiction of the court when a person alleges a breach of the constitution".
"In addition, it is for the court and not Parliament to decide on the scope and application of parliamentary privilege," Charles said.
She referenced the landmark case of R v Chaytor et al [2010] UKSC 52 in which Lord Chief Justice, Lord Phillips of Worth Matravers delivered the leading judgment that stated, "It is now accepted in Parliament that the courts are not bound by any views expressed by parliamentary committees, by the Speaker or the House of Commons itself as to the scope of parliamentary privilege... Although the extent of parliamentary privilege is ultimately a matter for the court, it is one which the court will pay certain regard to any views expressed in Parliament by either House or by bodies or individuals in a position to speak on the matter with authority."
Charles said there is a wealth of judicial authority which emphasizes that breaches of the constitution by the government and its Cabinet ministers when in Parliament is clearly a matter for the court and not for Parliament to decide.
"That said, the court acknowledged that as a general rule, it should not meddle in the affairs of Parliament, but leave it to regulate its own internal affairs," said Charles, who made a similar point during the ex parte hearing in April.
Charles said the respondents' arguments, which implied that the court's ability to deal with breaches of the constitution is precluded by the doctrine of the separation of powers, "in my respectful opinion, is wrong".
"The court is assigned with the delicate task of determining what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits," she said.
"The court is also tasked to decide whether any action by any branch transgresses such limits.
"It is therefore incumbent on the court to uphold the constitutional values and to enforce the constitutional limitations. This is the quintessence of the rule of law.
"The upshot of this is that parliamentary privilege is trumped by breaches of the constitution and although Parliament is supreme, it is not as supreme as the constitution."
Charles recognized that the case has sparked national and regional interest as it raises "complex and grave issues" as to the scope of the powers, privileges and immunities of Parliament vis-a-vis the constitution.
She also noted that the matter has brought some tensions between the branches of government.

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