Judge Scolds Bahamas Government Over Separation of Powers

by Sir Arthur Foulkes

A Justice of the Supreme Court has just given the executive branch of our government a well-deserved public scolding for playing fast and loose with the Judicature and for becoming confused over the difference between the two and the separate roles of each of these constitutional institutions.

In delivering his dramatic ruling of 6 November 2006, Justice John Lyons did a great service to the nation by speaking out courageously about what he perceived to be an attack on the independence of The Bahamas Judiciary.

There may be controversial aspects of the judge’s stunning pronouncement but there is much in it that citizens of this country should take to heart. It should be posted on the internet for all to read.

Mr. Lyons takes issue with a press release emanating from the Attorney General’s Office and which presumes to review the performance of high court judges in the context of the Attorney’s General’s so-called “swift justice” initiative.

(The judge attributes the press release to a senior officer in the Attorney General’s Office but the officer has rightly – and courageously – challenged the Attorney General to take responsibility for publicizing what she said was meant to be an internal document).

The judge likens this extraordinary document to a school master’s report or a human resources manager’s report and says he has never seen anything like it. He says the “review” is capable of carrying the inference that the Judiciary is part and parcel of the Attorney General’s Department.

“The press release went so far as to boast that the increased conviction rate was probably due ‘to the increased effectiveness of the agencies of government working together’. It left no doubt that the Judiciary is one of those agencies’.”

So here beginneth the first lesson:

“The Judiciary is not an agency of government. It is an independent body established under the Constitution. The role of a judge is to ensure a fair trial; fair to the prosecution and fair to the defence, as mandated by the Constitution. A judge is never to be judged by a ‘conviction rate’.”

But the judge goes further and says that even the prosecution’s role is to assist in the prosecution of a fair trial and that the rate of conviction is not a criterion by which any prosecutor should be judged. “Any person holding that view needs to be disavowed of it now.”
The Legal Department and the Judiciary are separate entities. The Attorney General heads one and has been appointed to be responsible for relations with the other.

Perhaps the time has come for another minister to be given responsibility for relations with the Judiciary as this might remove any lingering confusion in the public’s mind. In some jurisdictions there is a Minister of Justice.

Here beginneth lesson two:

“The independence of the Judiciary is the pillar upon which our Constitutional freedoms are built. Judicial independence is at the heart of practically every UN charter on human rights.”

That is why:

“Judicial salaries and conditions of service are protected against diminution by our Constitution. It is well recognized that diminution of judicial salaries and conditions of service can easily be achieved by, over a period of time, simply not increasing them.”

The judge put his finger right on the heart of this problem -- and some other problems as well -- when he says he has been informed that there is a long-held belief on the part of ministers and their advisors that judges should not be paid more than ministers.

This problem reared its ugly head in the first PLP Government when puffed-up ministers concluded that nobody should be paid more than them and that nobody should come ahead of them in the order of precedence.

Some of them, for instance, could not understand why the Leader of the Opposition should rank right behind the Prime Minister in the order of precedence. So they put the Leader after ministers!

Perhaps that is the main the reason why the PLP Government has failed twice to cause a mandated review of judges salaries to be carried out and why recommendations of the ad hoc commission have been ignored. Judges cannot be paid more than ministers!

On the Question of Qualification
In a recent Tribune there is a letter by someone claiming to have read in this column disparaging comments about House of Assembly Speaker Oswald Ingraham. The Tribune’s correspondent speculates about what constitutes qualification for such a high office: education, a university degree, years of experience?

Then the writer, who signs as A Friend, goes on to speak highly of Mr. Ingraham saying that he has character, reputation and integrity.

It is true that I have more than once in this column expressed the view that Mr. Ingraham is not qualified to be Speaker, but I reject the suggestion that I have ever spoken disparagingly of Mr. Ingraham. To say that some one is not qualified for a particular post is not disparaging.

On several occasions I have said much the same as A Friend: that Mr. Ingraham is indeed a gentleman with many fine qualities. Nevertheless, it is still my opinion that he is not qualified to be Speaker, and I believe this view is shared by many who have had the opportunity to observe him in the Chair over this entire parliamentary term.

It has little or nothing to do with having or not having a university education. We have had a number of speakers who did not have the good fortune to get a university education but who nevertheless acquitted themselves well in the Chair.

Of particular note is Sir Clifford Darling who presided over the House at a very tense period in our political history when eight former party colleagues and some close friends of his sat on the Opposition benches.

Sir Clifford was scrupulously even-handed with his former colleagues even though, to be quite frank, some of them tried repeatedly to bait him into rash action against them. He understood them, he understood politics and he understood parliament.

Sir Alvin Braynen also occupied the Chair at a very interesting time which saw the transition to majority rule and independence. His formal education began at the Public School in The Current and ended at Boys Central in Nassau.

Yet Sir Alvin was a highly literate man, an accomplished and colourful debater and an expert on the rules and conventions of parliament. He had a flamboyant personality and occasionally gave in to the temptation to preen, but he was a great speaker.

Not all of us who are in the business of regularly offering social and political commentary take delight in criticizing those who are responsible for our national institutions and governance.

In fact, it is sometimes quite painful to have to criticize people you know well, including some for whom you have high regard, even affection. But it is about our institutions. I have high regard for Mr. Ingraham but I repeat that it is not fair to him nor to the institution of parliament nor to the country to have him in that particular post.

I make no apologies for repeatedly advocating in this column the nurturing, protection and development of our national institutions, the rituals, traditions and conventions which protect them, and the society they in turn sustain.

If we chip away here and downgrade there, we will inevitably weaken the foundations of our society and degrade our quality of life. We have only to look around the world to see how hard it is to build or rebuild these institutions when you have never had them or once they have been destroyed.

Comments

[will simmons]

don't judges get enough? i can understand teachers striking, given their working conditions and low pay, but the judges, thats insulting!

[Rob MacFie]

I went to school with Justice John Lyons in Tasmania Australia & would like Justice Lyons mailing address.