Judicial Independence and the Rule of Law in the Bahamas

by Sir Arthur Foulkes

The debate over the independence of Bahamian high court judges has exploded again, and with a vengeance. There can hardly be a more important issue since it is about the rule of law and goes to the very heart of our democratic governance and the protection of our rights as citizens.

The administration of Prime Minister Perry Christie has shown little regard for the conventions which are so important to the proper functioning of our parliamentary democracy and to its own proclaimed code of ethics.

Mr. Christie, who knows better, has allowed some of his ministers to violate the most fundamental conventions and rules of cabinet government without even the mildest of reprimands. These violations have been pointed out repeatedly in this column.

The conventions were not pulled out of a hat but evolved over centuries of conflict, practice and experience. To ignore them is to guarantee that things will fall apart and that confidence in the system will be undermined, perhaps for years to come.

More disturbingly, Mr. Christie and his colleagues have sailed pretty close to the wind when it comes to respecting the rule of law. In some cases they have ignored the law altogether.

The concept of the rule of law predates the flowering of parliamentary democracy. Its exposition by political philosophers in the 16th and 17th century contributed to the development of various forms of western constitutional democracy and the separation of powers.

The rule of law means that the state and all its constituted authorities, departments and agents must operate according to laws that have been established in the prescribed manner and have been made known to citizens.

It means that the rights of a citizen must be clearly established and cannot be arbitrarily abridged by the state nor by other citizens. It means that a citizen must have access to independent courts to protect his rights from abuse by the state or anybody else, and for the adjudication of disputes with other citizens.

At the beginning of his administration it appeared that Mr. Christie would not tolerate the vicious practice of victimization which became a hallmark of the previous PLP Government. But now he seems to be encouraging this nasty practice.

It would be for the public good if members of the legal fraternity would take action in the courts on behalf of poor Bahamians who have been victimized. Government officials and the strangers who come to do business in our country must know that the humblest of our citizens are protected by our constitution and our laws.

Mr. Christie himself, as Prime Minster, has flaunted the law relating to the very operation of our parliamentary system by neglecting to cause the appointment of the Constituencies Commission within the time prescribed by the constitution.

He has made excuses for his dereliction, attempted to blame the citizens for it, and has dismissed the clear intent of the constitution by saying that it is “directory” and not “mandatory”, and that no consequences flow from his failure.

Ordinary citizens have been made to believe that where the constitution or any other law says “shall” it means “shall”. One consequence of Mr. Christie’s failure is that that is now in doubt and “shall” means that the authority at whom it is directed has discretion to do or not to do, or to do when he feels like it.

Another consequence is that this election has run dangerously close to the wire and only a back-breaking effort by the Parliamentary Commissioner and his staff can avoid a lot of confusion.

This is too much of a burden to place on them. Mr. Christie should have appointed the Constituencies Commission in the time mandated by the constitution and he should have closed the old Register of Voters sooner to encourage citizens to register earlier.

Another consequence is that prospective candidates have little time to familiarize themselves with new constituencies or ones that have had boundary changes, and some citizens do not yet know what constituency they are in. This is not good for the all-important process of electing a government.

Mr. Christie knows all this, of course. He advocated in his party’s platform that no changes should be made to constituency boundaries within the six-month period preceding a general election.

But, either through negligence, incompetence or sheer disregard for the law or a combination of all these, Mr. Christie has been hard-pressed to fulfill his promise to call an election no later than May 2.

So now he has been forced to make the highly controversial decision to launch the election campaign officially in the middle of the most solemn period in the Christian calendar.

Perhaps the most serious assault on the rule of law by Mr. Christie and his colleagues was their failure to appoint -- not once but twice -- a commission to review the salaries and pensions of judges of the country’s high courts as mandated by law.

This precipitated an unseemly public row between Attorney General Allyson Maynard Gibson and Supreme Court Justice John Lyons over the independence of the judiciary of The Bahamas.

Perhaps the independence of the judiciary has not been totally destroyed but no one can credibly deny that the failure of the PLP Government to appoint the commission was an assault on that independence. That is a dangerous thing, as Mr. Lyons made clear.

But instead of acknowledging its dereliction and initiating consultation to find a way out, the Government engaged in a running battle with Mr. Lyons, and the Attorney General lodged an appeal against his ruling.

Now that the appeal has been withdrawn, the public has no alternative but to conclude that Justice Lyons was right all along in the statements he has been making.

One of the things the judge had taken exception to was an apparent attempt by the Attorney General to grade the performance of judges in pursuit of her so-called “swift justice” initiative.

In this, as in other matters, the opposition FNM has accused the PLP Government of a “smoke and mirrors” approach to governance. The Government has failed to make sure that there are enough judges are appointed while at the same time mounting a “swift justice” public relations exercise.

In the wake of the Attorney General’s withdrawal, Dame Joan Sawyer, President of the Court of Appeal, has strongly supported Mr. Lyons and expressed disdain for the idea that anyone but a judge should presume to grade the performance of judges.

Commenting on what Mr. Lyons had said about the independence of the judiciary being compromised, Lady Joan said she had personal reason to agree with the judge. Then she made this stunning declaration: “I have personal experience of the Executive trying to manipulate the Judiciary.”

But the strongest words of condemnation for the Attorney General and the Government came last week from a prominent member of The Bahamas bar, Damian Gomez. Mr. Gomez is a former candidate for the PLP, a former PLP Senator and recent nominee to the Supreme Court bench. He has since declined the appointment.

Mr. Gomez excoriated Mrs. Gibson on a radio talk show and called not only for her resignation from that office but also her withdrawal from public life. He said the appeal should have gone forward so the whole question could have been cleared up once and for all.

“But for political reasons,” Mr. Gomez charged, “on the eve of an election, they have adopted an approach which is completely cavalier to the interest of Bahamians in their civil rights as guaranteed by the Bill of Rights.”

Mr. Gomez said the country is in a serious quandary and that the judiciary is in meltdown.

If that is true, and it looks very much as if it is, then this meltdown must be quickly arrested before rampant lawlessness overwhelms us and before we slide into anarchy.

Comments

[Interested]

The sad part about this Judicial vs. executive debacle is that the Bahamian people in general do not seem to understand the importance of the situation. It is amazing that many see it as the AG has proposed, an attempt by the judges to get a pay raise. It appears the immaturity of the Bahamian electorate is showing, they do not seem to undersatnd the importance of seperation of powers. While there is actually no real separation of powers between the legislative and executive branch as the Westminster system is practiced in the Bahamas, we at least are supposed to constitutionally have separation of powers bewteen the executive and judiciary.

Something is very wrong when the executive branch of any govt is accused by the high court justices of breaking the law and trying to subjugate and control the Judiciary.

In any first world country this would be unheard of and woud probably bring the govt down.

I feel this is perhaps the greatest scandal spawned by the current PLP govt., asnd it is amazing the that opposition is not taking advantage of it.

This situation is a disaster to international onlookers and cannot be good for the confidence of legitimate investors.

In all respects it as a close to anarchy in government as we have ever been in the Bahamas.