PAGE 14 , Friday, December 30, 2016 YEAR IN REVIEW 2016
THE TRIBUNE
Legal battle that led to right to privacy debate
By LAMECH JOHNSON Tribune Staff Reporter ljohnson@tribunemedia.net THE conclusion of a yearlong investigation into allegations that Canadian fashion mogul Peter Nygard contracted two men to harass, intimidate, cause physical harm and property damage to four directors of the Save The Bays (STB) organisation and several others became the start of a legal battle in 2016 which saw a pivotal moment in history regarding the judiciary’s protection of a citizen’s constitutional right to privacy. On March 9, hedge fund billionaire Louis Bacon, lawyer Fred Smith, QC, Save The Bays directors Joseph Darville and Romauld Ferreira, and Reverend C B Moss, who is not a part of STB, filed a writ in the Supreme Court against Mr Nygard and lawyer Keod Smith alleging that the defendants orchestrated a two-and-a-half-year campaign of fear and violence to allegedly “kill or scare off” activists the designer saw as opponents to development plans for his Lyford Cay property. The fall out from the court action ensnared politicians from both major parties, prompted a resignation from political office and raised concerns about campaign financing. The 400 pages of documents and 19 videos detailed the findings of a team of retired FBI and Scotland Yard professionals and Bahamian investigators, who investigated the allegations of Livingston “Toggie” Bullard and Wisler “Bobo” Davilma. Bullard and Davilma identified themselves as high profile gang members in court documents and alleged that Mr Nygard gave them a “hit list” of people to murder or “send a message” to - with Mr Smith and Mr Bacon topping the list as the “worst of all”. Others on the list included lawyer Pericles Maillis and Tribune Business Editor Neil Hartnell. Covert video recordings purported to be discussions between Mr Nygard, Bullard and Davilma were also filed along with the court action. From these videos, one can glean some insight into Mr Nygard’s relationship with Prime Minister Perry Christie and Deputy Prime Minis-
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MINISTER of Education Jerome Fitzgerald accused Save the Bays of seeking to ‘overthrow’ the government under the guise of being an environmental group. ter Philip Davis. In a video recording on May 10, 2015 between Mr Nygard, Bullard and Davilma, the fashion mogul lambasts Mr Christie for making “fake promises” over the issuance of a lease for which he had received authorisation nearly 25 years ago. Bullard and Davilma also alleged they were sent to Mr Nygard by Mr Davis to protect the billionaire’s local interests as a major campaign backer of the Progressive Liberal Party, according to court documents. Bullard and Davilma were tracked down with the help of then Free National Movement Senator Michael Pintard and former FNM Senator John Bostwick, who alerted Mr Smith that the men were behind the protests against STB. After his involvement in the investigation came to light, in mid-March Mr Pintard resigned as chairman of the (FNM) and as a senator after criticism that he did not take the allegations to police. However the FNM was not out of the spotlight. On March 21, FNM Leader Dr Hubert Minnis admitted to The Tribune that he had met with Bullard three times in 2015, but claimed the two men did not discuss the al-
legations against Mr Nygard. Dr Minnis told The Tribune that Bullard, his constituent in Killarney, contacted him to pass on a warning to Mr Pintard that he was about to be allegedly “set up” by a high-ranking member of government and others. “One of the chaps, ‘Toggie’, called me, a constituent, and said to me that Michael Pintard is going to a meeting and (a member of government) going to set him up,” Dr Minnis said earlier this year. “He stopped by me and said the same thing. I called Pintard and told him.” “His exact words were ‘Pintard is going to a meeting, warn Pintard not to go because (name omitted) and them trying to set him up’. That would have been the end of it.” Dr Minnis’ admission prompted criticism from some who wondered why he waited so long to reveal this information, and even caused some in his own party to question if there was more to the story. Privilege As the controversy over the allegations grew, Minister of Education Jerome Fitzgerald accused STB of being a political organisation seeking to “overthrow” the Progressive Liberal Party government under the guise of being an environmental group. In the House of Assembly in March, Mr Fitzgerald read private emails from STB members and others, which he said bolstered his claims. There was concern for the far-reaching implications the MP for Marathon’s action would have for a country that prides itself on being a safe financial haven. However, later speaking outside Parliament, Mr Fitzgerald 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 par-
liamentary privilege. Additionally, Fred Mitchell claimed in Parliament in March that some $8.25m has been filtered through various organisations connected with STB – locally and internationally - from 2013 to 2015. The fallout led STB to obtain an injunction from Supreme Court judge Justice Indra Charles in April barring any further action by Parliament concerning the private emails pending the outcome of constitutional motion on whether parliamentarians can use their privilege to disclose confidential information of private citizens. The legal action, which was brought by Save The Bays; Zachary Bacon, the brother of Louis Bacon, a resident of Lyford Cay, Mr Smith and Ferron Bethell, was heard in May and relied on the affidavit of STB’s Communications Director Paco Nunez who detailed the statements of the two MPs as proof that they were in possession of private emails. Mr Nunez noted that the tabled documents did not disclose “how, or when, or the identity of the person from whom the second respondent obtained the tabled documents.” Ruling In a landmark ruling on August 2, Justice Charles declared that Mr Fitzgerald was not legally justified when he tabled the private emails of the environmental action group and therefore could not be protected by parliamentary privilege. She ruled that the Marathon MP’s actions were an infringement of the constitutional rights of the applicants and ordered Mr Fitzgerald to pay $150,000 in damages for the breach. Mr Fitzgerald was permanently banned from disclosure and publication of any further material belonging to STB and was ordered to delete all electronic and hard copy material within 14 days. Justice Charles said it was unquestionable that a resident’s private and confident correspondence should not be the subject of public discussion and scrutiny, let alone in the House of Assembly.
“The courts are given an exclusive jurisdiction to adjudicate in and to supervise breaches of the Constitution by the executive and the legislature,” Justice Charles said. “Parliament cannot change the scope or divest the court of its ‘original jurisdiction’ by legislation. In addition, it is for the court and not Parliament to decide on the scope and application of parliamentary privilege,” she added. “As a general rule, the court should not meddle in the internal affairs of Parliament and should leave it to regulate its own internal affairs. The court also recognises that the authority and dignity of Parliament would be seriously compromised if it were to interfere arbitrarily in the internal procedures of Parliament. “But if a person alleges that his/her constitutional rights have been or are being infringed in order to establish that infringement, the court would be entitled to carry out an inquiry to determine whether there was indeed a breach. “It is axiomatic that, a man’s private and confidential correspondence, precious to his heart, should not be the subject of public discussion and scrutiny. The second respondent (Mr Fitzgerald) made unsubstantiated allegations about the first applicant (STB) which he portrayed as a moneylaundering organisation. “These statements are regrettable since it had nothing
to do with the mid-term budget debates which were ongoing at the time,” the judge stressed. Justice Charles ruled against STB in its case against Mr Mitchell concerning breach of the group’s constitutional rights, ruling that it had not made out a case in this regard. A month later, in September, Mr Fitzgerald and Attorney General Allyson Maynard-Gibson filed an appeal of the landmark ruling and fine on the grounds that Justice Charles was “wrong,” and “erred in fact and in law” in her ruling. There was also a move by the House of Assembly’s Committee on Privilege to probe Justice Charles’ ruling. However, on November 30, Parliament’s Chief Clerk Maurice Tynes confirmed to The Tribune that the Committee on Privilege has decided to postpone its probe into this matter until the Court of Appeal makes a ruling on Mr Fitzgerald’s appeal. While it remains to be seen in 2017 whether the Court of Appeal and possibly the Judicial Committee of the Privy Council will uphold the ruling of Justice Charles, it cannot be denied that the judgment was a decisive point in 2016 and Bahamian history regarding the limits of Parliament’s privilege against a citizen’s constitutional rights notwithstanding the circumstances from which the case originated.
Rocky path to Freedom of Information By AVA TURNQUEST Tribune Chief Reporter aturnquest@tribunemedia.net THE path to legislating freedom of information in the Bahamas has been quite the political revolving door. Under the carriage of Minister of Education Jerome Fitzgerald, the Marathon MP that thought it prudent to sit on a heavily downplayed, arguably suppressed, report into a gas leak that impacted his constituents, the bill was tabled on December 14 after numerous delays and just five months ahead of the next election. The tabling was surely a triumph for Mr Fitzgerald, who promised the bill would make its entrance in Parliament before the end of the year. But for advocates that have watched progress stall out under two different administrations, the reaction amounted to ‘meh’. Debate has not yet begun on the legislation and it is unclear when the bill will be passed in Parliament. Discussing the issue of transparency on a radio talk show back in September 2011, then Health Minister Dr Hubert Minnis vowed that the Free National Movement (FNM) administration would bring the legislation to Parliament before the end of its term. He argued that there was still time to enshrine the party’s election campaign promise into law. Dr Minnis admitted at the time that one failure of the Ingraham-led administration was the lack of communication with the public. He was speaking in the context of his ministry’s investigation into the dengue fever outbreak, and acknowledged that Bahamians were frustrated by the inconvenience of ongoing road works and the perception that the government is not interested in their concerns. “I think that we are listening to the people,” Dr Minnis said in 2011, “but I think our public relations is poor. I would be the first to admit that. Both in the FNM, the government, and the ministries. We may not have explained to them appropriately what is happening therefore it will be the perception that if
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LEGISLATION I don’t know then you can’t be listening to me.” He continued: “We are employed by the people, we have a five-year contract and every five years we go back to the people and seek employment. As employees it is essential that we listen to the people.” On March 28, 2012, then Prime Minister Hubert Ingraham abruptly suspended the House of Assembly in a move that shocked opposition members. Parliament had been suspended until May 22; however, Mr Ingraham said that he planned to dissolve the House on or before May 2. During the less than twohour session, parliamentarians passed the Freedom of Information Act. But there was no enactment date, because I guess not even the FNM genuinely believed the party would be returning to office after May 2012. So in walked the Christie-administration and out went the legislation to be reviewed, and ultimately scrapped for a brand new draft. To be fair, legislators have reworked the bill so much that it casts a shadow on its predecessor. And many have insisted that the proof of the pudding will be in the eating; but let’s just call a spade, a spade, the Bahamian people have been at the kitchen table watching successive governments make this pudding and sing its praises for more than two decades. We’re hungry, no, we’re “hangry”. We are intimately informed on the process, and lately, its been feeling a lot like the only transparency and accountability we will ever get from government will be on the planning stages of a bill meant to enforce transparency and accountability. On the defensive over the muchanticipated Freedom of Information Act, Prime Minister Perry Christie recently called criticism over his administration’s lengthy
track to tabling the legislation unfair. Speaking in December, Mr Christie noted that “final discussions” on the draft bill had just been completed as he pushed back against ridicule from Free National Movement members over the bill’s stalled pace. The government has often pointed to the extensive consultation process as the major factor on the timeliness of tabling the legislation, however Mr Fitzgerald revealed as he tabled the bill that public participation was largely “disappointing”. “The committee and I were very disappointed by the lack of involvement and response from the public with regard to the FOIA bill,” Mr Fitzgerald told the House of Assembly, “disappointed, the meetings were not well attended at all”. Mr Fitzgerald also noted that online participation was also low, but went on to exalt the process. “We live in a democracy where people want to have more input on governance and how the country operates,” he said, “on the one hand that is very positive, but you cannot rush it. If you want me to bring a bill I could bring one within a couple months. I can tell you that having gone through the consultative process and all the bench markers it would not have been as strong a bill as it is now, nor would it have the level of support that it has from those involved in the process. “As a minister and government we have intentionally ensured that we did not get involved in the process apart from ensuring at the end of the day it was something that was workable. So, yes, I wish it was sooner, we all do, but I can tell you one thing, there will not be an argument or criticism that we did not do it the right way.” Mr Fitzgerald said: “We all wish it was sooner but it’s a process, but as opposed to the bill they (the
IN 2011, Dr Hubert Minnis vowed that the FNM administration would bring Freedom of Information legislation to Parliament before the end of its term. FNM) put in place, it took us after considering that and the committee a year and a half just to make the recommendations for the changes. Then it took another year and a half to two years to consult widely, that’s just the nature of it. These are Bahamians who are doing it not us.” But even if we distance ourselves from the exhausting political rhetoric and focus purely on logistics, there is still much to be desired of this legislative schedule that conveniently pivots this bill as an endof-term cramming session. And what do we make of a twoyear consultation process that still falls short on considering recommendations? In spite of the government’s highly touted consultation process for its Freedom of Information Bill, more than 20 civil society organisations have declared the document tabled in the House of Assembly a “missed opportunity”. That grouping included: Citizens for a Better Bahamas, Our Carmichael, The Organisation for Responsible Governance, We The People, Save The Bays, The Abaco Chamber of Commerce, The Nassau Institute, reEarth, HeadKnowles Foundation, Grand Bahama Human Rights Association, Waterkeepers Bahamas, The Bahamas Press Club, The Bahamas Chamber of Commerce and Employers’ Con-
federation, It’s Our Turn, Young Marine Explorers, Civil Society Bahamas, The Bahamas Retailers Federation, The Coalition to Save Clifton, Rise Bahamas, Citizens for Justice and BREEF. In a joint statement, the groups noted that while the government adopted several suggestions collected during public consultation earlier in the year, it abstained from taking on any of the major concerns raised by civil society. Three main areas that the group found the bill was still lacking included: the selection process of the information commissioner, the scope of public authorities subject to the bill, and the long time limits for making information accessible. The CSO collective urged Bahamians and residents to get informed and pressure their MPs to advocate for more amendments when the bill is debated. Matt Aubry, executive director of the Organisation for Responsible Governance, said: “Our neighbours in Jamaica, The Cayman Islands and Trinidad & Tobago have all enacted FOIAs. The Bahamas needs to catch up. “A ‘true’ FOIA will benefit and protect citizens, residents, private businesses, civil society organisations, and ultimately, our country. It will give us the right to important information about our country and give us the power to expose misconduct. “We must all work together for a bill that better reflects the accountability and transparency we want for the Bahamas.” I close with a quote from former Jamaican Senator and Gleaner Editor Hector Wynter. At the close of a three-day press seminar in 1986, he said: “In journalism, there are tenets common to all nations as are democracy and its concomitants of freedom and individual human rights, but there are bound to be certain variations according to the cultural environment.” He said: “Yet cultural environment must never be used as an excuse or licence for the denial of freedom.”