The Parliament of The Bahamas cannot be dictated to by the judiciary, and the judiciary cannot be dictated to by the Parliament, former House Speaker Sir Arlington Butler told National Review on Saturday night.

Sir Arlington said he endorses fully the ruling of the current speaker, Dr. Kendal Major, in this regard, but he expressed concern that Parliament thinks it has the authority to summon a Supreme Court justice. And so, it seems a messy constitutional dilemma has arisen, pitting a Supreme Court judge against the Parliament of The Bahamas.

On Friday, the parties concerned agreed to move beyond a motion brought by the attorney general to set aside a controversial injunction granded by Justice Indra Charles on April 21, prohibiting two MPs -- Jerome Fitzgerald and Fred Mitchell -- from releasing any private emails belonging to members of the environmental organization Save The Bays.

The judge has agreed to hear a substantial constitutional motion brought by members of Save The Bays seeking a declaration that they have a right to privacy under Article 23 of the constitution and that it is an entrenched fundamental right which trumps parliamentary privilege.

When he spoke in Parliament last month, Mitchell referred to an earlier injunction from the judge as "a stupid thing".

Fitzgerald has said the judge's injunction is "contrary to law". He said he wanted the Committee on Privilege to consider whether the judge and the lawyers should be called before the Parliament and found to be in contempt of Parliament.

"Last Monday, Speaker of the House of Assembly Dr. Kendal Major said he was "astonished and offended" by the contents of a newspaper article reporting on the injunction Justice Charles granted Save The Bays. He regarded the injunction as an "onslaught against the independence of the Parliament" and said its attempted execution "usurps the authority of the chair and amasses contempt upon our institution".

Major added, "In my view the order violates the principle of separation of powers critical to a parliamentary democracy and should attract outrage from every member of this place and senator in the other place.

"In short, it is a blatant breach of parliamentary privilege and utterly disdainful on many levels."

Major said he defies the order or any attempt by any court to direct or affect in any way the conduct of Parliament's business.

The speaker pointed to Article 55(1) of the constitution which authorizes and empowers each house to regulate its own procedures by making rules of procedure.

"The principles of parliamentary privilege preserve the authority of both houses of Parliament," the speaker noted, "therefore the right to restrain and even punish their members who by conduct, offend the House."

He pointed to the Rules and Procedures of the House of Assembly. Rule 30 (20) speaks to the principle of sub judice.
Major noted that the "House determines whether any matter is discussed and to what degree it is discussed in debate".

"These rules regulate the House, so when the courts decide to meddle and extend its reach into the halls of Parliament, democracy is not well served," the speaker said.

He concluded that the injunction "is a violation of a clear-cut principle in constitutional law and separation of powers".
However, Save The Bays' members argue otherwise.

They contend that the respondents -- Mitchell, Fitzgerald and the attorney general of The Bahamas -- have breached their rights under Article 15 and Article 23(1) of the constitution to ensure that they enjoy freedom from interference with their correspondence.

They are seeking a declaration that the provisions of the Powers and Privileges (Senate and House of Assembly) Act 1969 are to be construed as being subject to the supremacy of the constitution, in particular Chapter 3, which sets out the fundamental rights and freedoms of the individual.

They are asking the court for a declaration that in the circumstances of this matter, Mitchell and Fitzgerald are not immune from constitutional, civil and/or criminal proceedings which may be brought by the applicants.

The applicants want the court to grant a permanent injunction to restrain the respondents from "any further breaches of the applicants' constitutional rights as granted by Articles 15 and 23(1)".

They contend that the government, acting through two senior Cabinet ministers and Tall Pines MP Leslie Miller, obtained private and confidential correspondence belonging to Save The Bays members and disclosed confidential information during the course of parliamentary proceedings on March 15 and 17.

"All of the information contained in the correspondence was private and confidential in nature," court documents state.
"Moreover, some of the information was of a financial nature and some was private and privileged correspondence between directors and attorneys for [Zacchary Bacon and Fred Smith] ..."

Court documents state further that the fact that Fitzgerald stated that he got the emails of Save The Bays members out of his "political garbage can" suggests they could not have been obtained under the authority of law.

Pointing to a previous ruling -- Bahamas District of the Methodist Church in the Caribbean and the Americas v. the Hon. Vernon J. Symonette MP -- Save The Bays said: "The constitution is the supreme law of The Bahamas. If any other law is inconsistent with the constitution, the law shall be void.

"As such, the general principle of parliamentary privilege is displaced to the extent necessary to give effect to the supremacy of the constitution."

Save The Bays contends that the general immunity from lawsuit afforded to members of Parliament by Section 4 of the Powers and Privileges Act 1969 will not avail Mitchell and Fitzgerald where they have acted and continue to act in breach of Articles 15 and 23 of the constitution. This matter is of tremendous interest -- particularly in legal and political circles.

The important question here is, given that House Speaker Dr. Kendal Major has already declared that he will vigorously defend Parliament's right to govern itself, how would any possible order of the court be practically executed?
Will this amount to anything more than just an academic exercise in the end?

Fitzgerald said in Parliament on Monday: "Given the constitution and the law, if we speak in here, as we will, how is the remedy to be enforced?

"The judge by this order has clearly set up a conflict...between two branches of government -- the legislature and the judiciary.

"Under these circumstances, Mr. Speaker, I think you have stated clearly who will have the upper hand in that matter."

Fitzgerald added: "I am now putting this house on further consideration that the purported injunction, and I am suggesting to this house, that the common law powers of contempt and the statutory powers of contempt can lead to the judge, the lawyers Fred Smith and Ferron Bethell, to be brought before the Committee on Privilege to determine whether this house should consider that they are in fact in contempt of Parliament."

His statement was followed by his PLP colleagues banging on their tables in a sign of endorsement. However, Parliament seems misguided to, on the one hand, speak to the need for the judiciary to stay out of Parliament's business, while at the same time threatening to call a Supreme Court judge before the House of Assembly. It also sends a bad message to the outside world that the Bahamian Parliament thinks it could call a judge before it to answer to anything.

As we await a final outcome on the matter, it appears a standoff could be looming between the Parliament and the judiciary.

By Candia Dames

Guardian Managing Editor

Click here to read more at The Nassau Guardian