Undercover police raided an environmental activist's home. Cabinet ministers hacked and then released to the media emails and sensitive financial information from an environmental group. When the Supreme Court ruled that the cabinet ministers had violated the environmentalists' right to privacy, the ministers tried to jail the environmental group's lawyer and the judge who decided the case.
Are these assaults on civil and human rights and the rule of law taking place in some far-away, fragile, failed state, teetering on the brink of dictatorship? Unfortunately, this is happening less than 100 miles from Florida in the Bahamas, a long-standing democracy, American ally and member of the British Commonwealth.
Bahamian officials' alliance with a billionaire polluter, has created a constitutional crisis in their island nation—and cause for concern for their country's freedom-loving allies on both sides of the Atlantic Ocean.
The target of abuse by the politicians and police is Save the Bays, the umbrella organization of Bahamian Waterkeepers. It's a feisty little advocacy group that safeguards Bahamian coral reefs, beaches and marine environments through education and legal action. These efforts sometimes put Save the Bays and its Waterkeeper affiliates at odds with the country's big polluters, foreign developers and their friends in the Bahamian parliament.
The nation-shaking drama began when Save the Bays' Clifton Bay Waterkeeper sued Canadian apparel manufacturer Peter Nygard for illegally taking public ("Crown") land by filling Clifton Bay and destroying its world famous marine area to expand buildings on his private Lyford Cay residence. Nygard is a well-connected billionaire who boasts of having donated millions of dollars to members of the current Bahamian government. His neighbor, philanthropist and co-founder of Save the Bays, Louis Bacon, subsequently was subjected to a bogus police raid on his home called-in by Nygard in retaliation. Bahamian undercover officers handcuffed and threatened Bacon's household staff, and in what was clearly intended as a menacing gesture, collected photos of Bacon's children. The commissioner of police later apologized to Bacon for the raid, blaming it on an officer cozy with Nygard, and the pictures were returned.
In March, a group of Bahamian cabinet ministers mysteriously procured Save the Bays' private emails and financial records and disclosed them in an open session of Parliament, under the guise of Parliamentary privilege. Save the Bays promptly challenged this unlawful conduct in court. In August, the Bahamian Supreme Court ruled against the ministers, holding that publishing their private communications violated constitutional rights to privacy.
Instead of backing down, the ministers doubled down. They appealed the ruling, which could eventually be heard by the Judicial Committee of the Privy Council in London—the court of final appeal for Commonwealth countries—arguing that Parliamentary privilege trumped personal rights to privacy, and that the Supreme Court lacked power to enforce the constitution against Parliament. Just for clarification, the ministers are challenging the seminal doctrines that an independent judiciary is the ultimate arbiter of constitutional interpretation. That separation of power underlies a millennium of western law.
"The right to privacy is the essence of liberty," said Frederick Smith, Save the Bays' legal director and Queens Counsel. "Were the minister's actions upheld as lawful, it would deal a crippling blow to personal freedom in the Bahamas and open the door to further extreme abuses of government power."
Furthermore, a decision to weaken privacy rights and bolster government power in the Bahamas could affect all British Commonwealth nations, which look to each other's judicial systems for legal precedents.
Even more troubling, the Bahamian government is now seeking retribution through unprecedented, punitive contempt proceedings. In a gross display of political intimidation, the ministers are actually seeking to jail Smith, who successfully argued the case against them, and have even threatened to jail Supreme Court Judge Indra Charles, who decided the case.
Resurrecting an archaic procedure from the feudal dawn of western legal history, the ministers have appointed a hand-picked Parliamentary committee that can investigate, judge, sentence and imprison Bahamian citizens—including Judge Charles—for actions that parliament considers insulting. This is a dangerous expansion of government power over civil society.
Unfortunately, the trampling of basic rights is becoming a pattern in the Bahamas. In early September, police detained Bahamian attorney Maria Daxon on charges of "criminal libel" for speaking out against the government.
This type of bullying overreach signifies a disturbing perversion of Bahamian democracy that could blowback on the economy, 15 percent of which is dependent on the financial services industry and the demand for confidentiality and privacy. Paul Moss, president of Dominion Management Services Ltd, a pre-eminent Bahamian-owned financial services firm, expressed alarm that parliamentarians or their minions had illegally hacked the emails of Save the Bays activists.
"This country has built an industry on privacy, and that is being grossly betrayed," Moss told the Bahamian Tribune. "When the international community sees there's no distinction between the Government and abuses of power, we're going to have a difficult time sustaining that [financial services] business when really it's already contracting."
If such privacy infringements are allowed to stand, it would set a legal precedent that could undermine banking privacy not just in the Bahamas, but in other Commonwealth banking centers such as the Cayman Islands and the British Virgin Islands.
Abandoning the rule of law, stomping on privacy rights, and publicly savaging and jailing sitting judges, lawyers and environmental and human rights NGOs clashes with the Bahamas' hard-won image as a financial and tourist haven. It's time for level-headed leaders in the Bahamas to step in and fix this fiasco before more lasting damage is done....