Nassau, Bahamas – Communication by Fred Mitchell MP on a Question of Privilege 18 May 2016 House of Assembly:
I rise on a point of privilege.
You will recall that when the House of Assembly met over the last few weeks, on each occasion I was out of the country on official business. I spoke to you over the telephone giving you my clear and unqualified response to a purported injunction given ex parte by a Judge of the Supreme Court which was seeking to prevent two Members of Parliament from carrying out their constitutional functions in this House and in this country. I now rise to speak on a matter of privilege at this first convenient point.
I had the advantage of the benefit of your views and I have read the texts of those statements made by you as Speaker with regard to the purported actions of the Judge of the Supreme Court. I had thought that this matter would have been properly put behind us by a dismissal in the Courts by now of what is in my view a total misconceived action on the part of some pretty desperate people to stifle free speech and debate, sourced from the very group that is calling for freedom of information.
Sadly it is not behind us and counsel has had to be retained in order to deal with this matter in the courts. My own view is quite clear again. The action is misconceived, foolish and the decision is manifestly wrong in law.
The privilege which I have to speak in this House is an unqualified privileged, not qualified in any way save for any limitations which the Parliament imposes.
I wish to read into the record the law on this matter.
I start with the Constitution
Article 53: (1) Without prejudice to the generality of Article 52(1) of this Constitution and subject to the provisions of paragraph (2) of this Article, Parliament may by law determine the privileges, immunities and powers of the Senate and the House of Assembly and the members thereof.
(2) No process issued by any court in the exercise of its civil jurisdiction shall be served or executed within the precincts of the Senate or the House of Assembly while it is sitting, or through the President or the Speaker, the Clerk or any other officer of either House. 54. (1) Subject to the proviso
Then there is the statute law Section 3 of the Powers and Privileges Act which was passed pursuant to the Article of the Constitution:
Senators and Members shall have the like privileges and immunities as are enjoyed for the time being in the United Kingdom by members of the Commons House of Parliament, and without derogation from the generality of the privileges and immunities conferred by this section, in particular shall have such privileges and immunities as are provided hereafter in this Act.
4. 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.
There is no doubt about what those words mean. So the question is: what is there for a court to consider in this matter.
I have had the advantage of conferring with and reading the statement of the Member of Parliament for Marathon, my honourable friend.
I wish to quote from his statement delivered in this Chamber on
On April 22 I and the member for Parliament for Fox Hill issued the following statement:
Mr. Speaker I wish to indicate that the Member for Fox Hill is away on country business and thus not able to be here today but he has advised that in this matter I can speak for him. He will address the issue at the earliest opportunity upon his return.
I repeat first of all what I said in our statement that no one can deter this member when it comes to speaking freely on behalf of my constituents or when my privilege has been assaulted.
I have the privilege of freedom of speech generally and specifically there is immunity which attaches both on the criminal and civil side for anything which I or any member says in here.
Any injunction then which purports to restrict that seeks to do so in vain. It is a well-known axiom of law that equity does not act in vain.
Injunctions are an equitable remedy and thus I cannot see how an injunction could have been granted since it is so obviously contrary to law.
Put another way, given the constitution and the law, if we speak in here as we will, how is their remedy to be enforced. The judge by this order has set up a conflict between the two branches of government: the legislature and the courts. Under these circumstances it is clear who will lose.
One only needs to read carefully article 53(2) of the constitution and then go to the Powers and Privileges Act to see we are absolutely supported by the law in here.
This matter was first laid before the Committee on Privileges by Resolution of this House on March 21st 2016.
Thus the false accusation made by the representatives of Save The Bays and Mr. Louis Bacon against me personally that I or Ministers of the government got unauthorized access to emails of Save the Bays is now before the Committee of Privileges and I expect The Committee to call all those who made such outrageous accusations of criminal behavior against me and other members to come and produce what evidence they have to support their libelous and defamatory claims.
I am now putting before this House for further consideration 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 Bethel to be brought before the Committee of Privileges to determine whether this House should consider that they are in fact in contempt of Parliament. I use as support the documents I have tabled.
I understand that Mr. Ferron Bethel has been around town bragging about how he will destroy me and bury the Progressive Liberal Party. I will only say to him what I said to the member for Killarney when he ill-advisedly brought this matter in the House, when you digging one grave always dig two!
These people are getting desperate to hide their scandalous activities and schemes from the public and in their desperation they have fallen into grave error. I should say it another way, they messing with the wrong people! I said I’ve had enough and I meant it!
I close by quoting from the 22nd edition of Mays on Parliamentary Practice:
“Subject to the rules of order in debate, a member may state whatever he thinks fit in debate, however offensive it may be to the feelings, or injurious to the character of individuals as he is protected by his privilege from any action for libel as well as from any questions or molestation..
Final legal recognition of the privilege of freedom of speech in both Houses of Parliament is to be found in article IX of the Bill of Rights 1689 which states “the freedom of speech and debate or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.
Mr. Speaker, I adopt those words as if they were my own.
I go further, I want to make this clear, I do not consider myself bound by any injunction issued by any court in so far as it applies to any attempt to stifle what I say and do in this place. I will act accordingly.
I want to say also that those who for political convenience now find this uncomfortable cannot have their cake and eat it too. You cannot approbate and reprobate at the same time.
The reasons for the privilege are manifold but I say this, those who argued that it was fine to steal the private banking records of customers of the Bank of The Bahamas and thought there was nothing wrong with that because they believed by exposing the private banking affairs of public figures, they were serving a public good, have no legs to stand on in this argument. Those published stolen Cabinet papers because they believed that it serves a greater good also have no leg to stand on.
I assure the public that these documents which are before the House are not purloined or stolen or unauthorized as the progenitors of this foolish court action have sought to say.
I ask the public to consider this. When the facts reveal that there was in fact a conspiracy to destabilize the Government, funded by high net worth individuals, surely by the same reasoning you argue that it was fine to publish stolen material, publishing this material also serves the greater good. There is no question about it.
The elements are all there. You have a Queen’s Counsel who has been hired time and again by the same set of moneyed foreign interests. He himself has urged people to sue the Government to bankrupt the Government. He has pledged to run in the Fox Hill constituency, funded by who knows and to what end. He now has several legal actions against this member in the courts against me he says in my personal capacity, the end point of which is to bankrupt me personally.
This again is funded by whom and for what reason.
Mr. Speaker, I do not take this lightly and will fight this with all my being, have worked hard to get to this High court of parliament where there is a complete immunity for what I say and do in this place. The action before the courts is a nonsense and I hope the courts will see their way clear to deal with it appropriately.
In the meantime, I again assure my constituents that I will not blink or stutter and continue to serve unswervingly their interest in this place.
I wish to lay my remarks over for the further consideration of the Committee on Privileges.