The Official Opposition has declined to take an official position on the debate that has erupted over parliamentary privilege and citizens' constitutional protection, but former Attorney General Carl Bethel has concluded that Supreme Court Justice Indra Charles was correct when she ruled that Marathon MP Jerome Fitzgerald breached the constitutional rights of Save The Bays members when he read their private emails on the floor of the House in March.
"The judge quite correctly in her ruling states that the court is the guardian of the constitution and it is not for ministers in Parliament, who are also senior attorneys, to seek because of their political issues to drag the Supreme Court of The Bahamas into disrepute," Bethel said.
"Let the courts deal with the interpretation of the law. Let the politicians learn to obey the law and stop believing that they are above it and that they can stand in Parliament and say anything they want about anybody, anytime, any day."
Nearly two weeks ago, Opposition Leader Dr. Hubert Minnis told National Review that the Free National Movement would release an official response to the ruling.
That never came.
As such, the response from Bethel, the leader of opposition business in the Senate, is so far the strongest reaction to come from an opposition member in response to the decision.
In an interview with National Review, he explained, "The constitution of The Bahamas states that the constitution is supreme. In Britain, where they don't have a written constitution, Parliament is supreme. The consequence of that is in The Bahamas, Parliament is supreme under the constitution.
"There is no absolute sovereignty of Parliament. It is the constitution that is sovereign. That is from basic principles."
Bethel also said he was "absolutely flabbergasted" by Fox Hill MP Fred Mitchell's response to the ruling.
In Parliament last week, Mitchell said millions of dollars from foreign sources were channeled through a local law firm to get a challenge before the courts against parliamentarians' unfettered right to free speech.
Making a clear reference to similar claims made by Fitzgerald in Parliament in March, Mitchell said the stability of the country had been threatened due to the actions of rich foreigners.
When he brought the emails to the House, Fitzgerald charged that Save The Bays was a "political organization under the guise of an environmental group" that has used "millions and millions of dollars" to entrap millionaire fashion mogul Peter Nygard with the overall goal to "destabilize" and "overthrow" the government.
In her recent ruling, Charles ordered Fitzgerald to pay $150,000 in damages.
Save The Bays was seeking a permanent injunction against Fitzgerald and Mitchell. However, Charles said Mitchell was not in breach.
While continuing his stance that the judge erred, Mitchell suggested Parliament provides a "cheap method" for citizens to help expose ill deeds through their members of Parliament.
But Justice Charles 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".
"The clear message of the ruling is that politicians are not laws unto themselves," Bethel told National Review.
"What is so offensive about that? Surely, any politician must accept the basic premise that if you wish to lead that you must be prepared to follow the law.
"You must be prepared to be bound by the law.
"Are you, because you are elected to Parliament and a member of Cabinet, suddenly some superior species of human being that you can flout the law and flout the court from the sanctity and privileges of Parliament? That's absolutely objectionable.
"It is the same sort of use of governmental authority that manifested itself bright and early in many countries that are now dictatorships because where the law is made subject to the whims of the politician, peril for the people is the inevitable consequence."
Many in the legal fraternity expect that the ruling will go all the way up to the Privy Council, as does Mitchell, who said Parliament could pass a law to vacate the judgment if it is not in MPs' favor.
The decision would be significant for other Commonwealth jurisdictions with similar parliamentary systems.
While the decisions of the appellate court may be a ways off, in the court of public opinion Mitchell and Fitzgerald appear to be fighting a losing battle.
While they argue that parliamentary privilege gives them the right to violate the constitutional rights of others, what many are seeing play out is the arrogance of politicians who would drag a Supreme Court judge before the bar of the House if they could, while disregarding the rights of others.
While he has stuck to his position that no judge can dictate to a court of law what it must do, even the House Speaker Dr. Kendal Major, who allowed Fitzgerald to read the emails into the record of the House, softened his tone when he addressed the matter late last week.
Major suggested that in retrospect he should not have allowed Fitzgerald to read the emails.
"There are no regrets, but if I was faced with the same situation, I would ask the member to reveal the source to me before it is revealed to the House," he said.
Major also indicated that he would not want his private emails revealed in Parliament.
"What is interesting is we are still depending on the courts to make the final decision," he said.
"But I think if you look at the history of where this all came from and recognizing that me personally, I wouldn't want and I understand the concern of the public of not wanting private information revealed.
"I understand that as a citizen of the Commonwealth."
The speaker also said it is critical that a member has the freedom to investigate and to speak clearly because he or she is representing constituencies.
While he says there are no regrets, the other part of his statement suggests very clear regrets.
In political circles, that weakens the position taken by Mitchell and Fitzgerald.

Govt in the shadows
The controversial ruling further devalues the political capital of Fitzgerald, who is best known this term not for progress in his portfolio, but for his botched handling of the Rubis report that warned of potential health risks to his constituents; the controversy surrounding a nolle prosequi issued when he briefly sat as attorney general; his inability to get a Freedom of Information Bill before Parliament more than four years into the term, and the shameful email saga.
The release of the emails comes as the public continues to see a government that is intent on holding from them information that they have a legitimate right to.
Fitzgerald was in no hurry to let the residents of Marathon know they were potentially under threat from a fuel spill in their area. He would have been fired from Cabinet, he says.
He was enthusiastic in his attempt to spill the beans on Save The Bays, though, as he alleged its members were a part of a 'Bahamian hustle'.
Meanwhile, he and his colleagues continue to resist any demands that they be open and accountable.
Many months ago, Philip Brave Davis, the deputy prime minister and minister of works, told us he will table all BAMSI (Bahamas Agriculture and Marine Science Institute) contracts. What a joke that was.
Two years after the government signed a deal with Cable and Wireless Communications supposedly to get back two percent of the shares in the Bahamas Telecommunications Company, the agreement was never made public.
Repeatedly, Prime Minister Perry Christie has said he will table it.
Another joke.
More than three months after Bahamas Junkanoo Carnival ended, the government has failed to table any accounting of how the public's money was spent.
Nearly a year after $650,000 in taxpayer money was pumped into the Caribbean Muzik Festival, which was postponed, the tourism minister has failed to provide the public a reporting on the status of the festival and public money.
There are endless examples of the Christie's administration's failure to account to the Bahamian people, to table what the public has been demanding.
These examples make the email controversy even more reprehensible for many people who have had enough of a government that buries legitimate public information while fighting for a right to make public, private information.
In this current atmosphere, developments in relation to the Save The Bays matter will be closely followed.
If MPs remain cemented in their position that they could ignore the order of the court on this critical constitutional matter then a showdown could be looming.
Fitzgerald, who suggested initially that the judge be brought before the House, also indicated that the ruling cannot be enforced.
"This House always has remedies at its disposal for anyone who chooses to interfere with the freedoms we enjoy in this place," he said.
"There is a legal axiom that equity does not act in vain.
"That means the court will not make an order it cannot enforce.
"In my humble opinion the ruling of Justice Charles is one such order.
"It cannot be enforced."

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