Bahamas Bar Association President Elsworth Johnson yesterday applauded the "fearlessness" of Supreme Court Justice Indra Charles in her ruling on Tuesday 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.
"I am elated because what it demonstrates to me is that the court, we have an independent, fearless court that is prepared to bring a ruling that involves members of our sitting Parliament and it says to me that our democracy is vibrant," Johnson told The Nassau Guardian.
"[Former Chief Justice Sir Burton] Hall in a decision refers to the importance of the administration of justice and safeguarding the administration of justice.
"And he says, it's the foundation of our social order, and so, you have a very interesting matter coming up before the courts, which deals with constitutional supremacy and the sovereignty of Parliament, and she (Charles) has given her decision.
"Now, I know there has been commentary, and that is also healthy and it is to be expected as long as the comments are fair and not geared toward undermining public confidence in the judiciary."
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".
She 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.
The order was stayed pending the outcome of an appeal.
The decision prompted outrage among some parliamentarians on Wednesday.
House of Assembly Speaker Dr. Kendal Major called the ruling an "apparent violation" of the "principle of the separation of powers".
He said he is unaware of any jurisdiction in the Commonwealth where the court attempts to "curtail the actions of Parliament".
Fox Hill MP Fred Mitchell, one of the respondents in the matter who was not found in breach, said the decision is a "serious blow to the Parliament and its work" and it must not be allowed to stand.
Marco City MP Greg Moss called Charles' decision wrong and "scandalous".
He urged that the matter be moved to the Court of Appeal as soon as possible to allow "more sober minds to deal with this and fix this".
Johnson said he is satisfied the Office of the Attorney General appealed the decision rather than Parliament taking another route.
He said he believes parliamentary privilege is not absolute.
Insisting that the fundamental rights of individuals must be protected, Johnson said, "I must commend Justice Charles for exhibiting what is necessary, and that is the strength of the bench, the independence of the bench and the fearlessness of the bench. And I am quite certain that it is nothing personal."
According to Johnson, the constitutional argument that Parliament determines its and members' privileges and immunities will be decided in the Court of Appeal or Privy Council if need be.
"The constitution even set up Parliament itself," he said.
"If you are dissatisfied with the result of an election where do you go to have that resolved?
"All of these issues you go to the court to have them resolved.
"And so, why I say it's healthy because you're having Parliament, and I am not getting involved in their debate as to whether it is right or wrong, but what I am suggesting is this is the way how things are to be resolved."
In her ruling, Charles said the Supreme Court has the "original jurisdiction" to decide over breaches of the constitution.
Noting that Parliament cannot change the scope or divest the court of this original jurisdiction by legislation, 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".

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