“WHO IS that woman?” snarled a Bahamian man with the curl of the lip.
That woman happens to be Supreme Court Justice Indira Charles of St Lucia. A woman with a wealth of experience in the legal profession in the Caribbean, she was sworn in as a justice of the Bahamas Supreme Court in January 2012.
Mrs Justice Charles has now been called upon to adjudicate on what will probably be the most important constitutional case in our history. She must decide whether our Constitution is supreme, or whether a private citizen’s rights can be trampled into the dust by parliamentary privilege at the whim of a member? Has a citizen the right to appeal to the courts, even though parliamentary privilege has been invoked? Is the long-established principle that no one is above the law, including MPs, to be overturned?
“I do not make orders lightly,” Justice Charles told the Crown’s lawyer as he argue that the hearing was no longer necessary in view of the recent developments in parliament. “If there’s going to be an application to discharge,” she said, “it has to be heard in full. An injunction has been granted, a return date is the 12th of May. The injunction comes to an end on May 12 unless there’s an application for it to be renewed, correct? I’m willing to shuffle around cases to accommodate this because this is a matter of urgent attention not only to The Bahamas but to the Caribbean.
“Is Parliamentary privilege absolute if someone complains that their constitutional rights have been infringed upon, bearing in mind the walls of Parliament is sacred? Is the constitution the Supreme law of the land?” the judge asked.
These are the important constitutional principles that she has to decide and she will tolerate no cutting of the corners — not even for the Attorney General’s office.
This question arose during last month’s budget debate when Education Minister Jerome Fitzgerald read from private e-mails exchanged between members of Save the Bays (STB) in its fight to protect the seabed, now part of the Nygard property at Lyford Cay, and Jaws Beach for the public. Mr Fitzgerald later tabled the environmental group’s private e-mails in the House. His action was supported by Foreign Affairs and Immigration Minister Fred Mitchell, and other parliamentarians, who threatened to release more of STB’s private documents.
However, Save the Bays moved to the courts immediately and on March 18 were granted an interlocutory injunction against Mr Mitchell, Mr Fitzgerald and Attorney General Allyson Maynard-Gibson, restraining them from further disclosing the group’s confidential information in Parliament. This is the injunction to which the judge referred, and which she refused to lift at the request of the Attorney General’s office, until she had heard the arguments from both sides.
In a writ filed in the Supreme Court on Thursday, the applicants, Coalition to Save Clifton and Zachary Hampton Bacon, claim that the government, acting through Mr Mitchell, Mr Fitzgerald and Tall Pines MP Leslie Miller, obtained private and confidential emails and attachments belonging to the applicants and disclosed confidential information contained in this correspondence during the course of parliamentary proceedings on March 15 and 17.
Mr Mitchell, Mr Fitzgerald and Mrs Maynard-Gibson are named as respondents in the case.
The Save the Bays (STB) case against Nygard and his lawyer Koed Smith, now in court, has dropped into the shadows as PLP parliamentarians attempt to show by STB’s private documents that the Nygard case is just a plot to overthrow the Christie government and has nothing to do with saving the beaches at Nygard Cay for the public. Shocked by the court preventing them from further dissemination of STB’s confidential documents, Mr Fitzgerald moved a resolution, approved by the House, to be sent to the House Committee on Privilege “for the examination and determination of whether the judge, attorney Fred Smith, QC, and Ferron Bethel should be held in contempt of this honourable House and that the Committee on Privilege be properly funded to obtain independent legal advice if necessary concerning this attack on our democracy and report back to the House at the earliest opportunity.”
Speaking to reporters outside Cabinet, Mr Fitzgerald recently warned members of the environmental group to “batten down” because a “category five” hurricane was on its way, as he threatened to table “every single” email and bank statement in his possession if needed “to protect his integrity and parliamentary privilege”.
He has now been restrained from carrying out that threat until the whole matter is fully aired in the Supreme Court and decided on by – “who is that woman?” – Yes, that woman is Supreme Court Justice Indira Charles of St Lucia, whose name at the end of this case could be etched into Bahamian history.
Yes, readers, this case is important to all of us. It might well be classified as a “category five” hurricane, but in our opinion at the end of the day we wager that many parliamentarians will be running for cover and looking for shelter.
So this is indeed a case to watch. And, yes, it is a judge by the name of Indira Charles who will be sitting on the Bench, and who will make the final decision. So, by the looks of things, it’s time to buckle up your seat belts and settle in for a rough judicial ride.