Sat | Sep 23, 2017

Editorial | Is parliamentary privilege absolute?

Published:Wednesday | August 10, 2016 | 8:00 AM

The Bahamas is exercised by a constitutional row that is not only likely to go all the way to the Privy Council, but, depending on its outcome, could have profound implications for the privileges legislators enjoy in that country's Parliament, as well as the right of citizens to protect their privacy.

That, though, may only be the beginning, should those who instigated the case prevail. They won the first round in the local Supreme Court. Ultimate victory would probably open the door to recourse by people who believe they have been defamed in Parliament. And the impact would probably not be limited to the Bahamas, but spread to jurisdictions with similar Westminster-style constitutions, including Jamaica's.

The issue involves an environmental organisation called Coalition for the Protection of Clifton Bay, but generally referred to as Save the Bays (STB). It generally agreed to be funded by wealthy residents of the Bahamas, but mostly by the private foundation of the billionaire hedge fund manager, whose brother is a leading figure behind Save the Bays.

But, more significantly, the Progressive Liberal Party (PLP) of Prime Minister Perry Christie perceives STB as not being genuinely concerned with the issue it says it stands for, but operates as a sort of political action group, in league with the PLP's opponents.

In mid-March, a PLP MP and Cabinet minister read in the House private emails from STB members, purporting to establish a pattern of behaviour against the government. Earlier, another government MP, Fred Mitchell, gave the legislature information about the STB's financial affairs. The group believed that the information was hacked from its systems, as well as from the computer of its legal adviser, Fred Smith.

Significantly, Justice Indra Charles issued the STB applicant and Mr Smith a temporary injunction, barring disclosure or publication, including in parliament, of private information belonging to the group, setting off a firestorm of criticism from legislators, including a threat to bring Justice Charles before Parliament for possible censure. Last week, Justice Charles, after a full hearing of the case, made the injunction permanent.

 

INFRINGEMENT OF THE CONSTITUTION

 

Legislators believe that that ruling represents an infringement of the constitution and the efficacy of Parliament to do its work, unfettered by other branches of government, and thereby an erosion of the separation of powers.

The important thing here is that Section 53 of the Bahamian constitution allows Parliament, by law, to "determine the privileges, immunities and powers of the Senate and the House of Assembly and the members thereof".

The Bahamas Parliament Powers and Privileges Act says that parliamentarians enjoy the same immunities and privileges as members of the UK Parliament, but states further: "No civil or criminal proceedings may be instituted against any senator or member for words spoken before, or written in a report to, the Senate or the House, respectively, or a committee, or by reason of any matter or thing so brought by him by petition, bill, motion or otherwise."

The wording in the Bahamian act is similar, not exact, to the construction of Section 48(3) of the Jamaican Constitution, under which parliamentarians have, up to now, enjoyed an umbrella of absolute privilege, such as when, in the 1980s, the then prime minister, Edward Seaga, accused a young foreign service officer, Leonard Burey, who was never charged with a crime, of conspiracy to murder as part of a Cuban-Soviet plot.

However, in the Bahamian case, Justice Charles agreed with the claimants that parliamentary privilege is not absolute and that it is bound to respect the privacy of individuals.