Judge Accuses Gov’t Of “Egregious” Actions:
By Bianca Symonette -
Nassau, Bahamas:

The government’s failure to appoint a commission in accordance with the law to review the salaries of judges "is egregious and a potentially serious threat to the health of judicial independence in the Bahamas", Senior Justice Anita Allen said in a ruling handed down on Thursday.

But Justice Allen said she did not see how the government’s failure to follow the law would result in "the fair-minded informed observer" concluding that she was not independent as a judge.

The judge was ruling in the matter of Keith Jones, who was convicted of the murder of James Role and sentenced to death by her on February 2002.

The Privy Council quashed his sentence in October 2006, and remitted the case to the Supreme Court for reconsideration of the appropriate sentence.

Prior to the commencement of the re-sentencing hearing, Wayne Munroe, Jones’ attorney, charged on behalf of his client that Justice Allen was "constitutionally infirmed" as a result of the publication in the press by the attorney general of a "report card" on her performance; a public statement by the attorney general that judges were accountable to the public; and the failure of the government to appoint a commission in accordance with the provisions of the Judges Remuneration and Pensions Act.

These were the very issues raised in two controversial rulings by Justice John Lyons in November, who determined that the government had broken the law by failing to appoint the commission, and as a result the independence of the judiciary had been undermined.

Mr. Munroe argued that his client could not get a fair hearing due to Justice Lyons’ determinations.

Justice Allen said in her 23-page ruling that, "There was no suggestion that there was any actual bias or prejudice against the convict, but rather that a reasonably informed member of the public aware of these matters, might perceive me not to be independent and impartial."

Mr. Munroe had asked for a declaration that Justice Allen was not independent and impartial or whatever other remedy the court thought fit in the circumstance, but Director of Public Prosecutions Bernard Turner resisted this contention that her court lacked the requirements of Article 20(1) of the constitution and asked Justice Allen not to accede to Mr. Munroe’s submissions.

In her ruling, Justice Allen said she "wrestled with the issue of whether I ought to disqualify myself from hearing the objections on the basis of self interest."

She noted that the foundation of judicial independence is the freedom of a judge to hear and decide cases without undue or improper influence, inducements, pressures, threats or interferences, direct or indirect from any source or for any reason.

"The principle that the judiciary must be free from interference and influence and that judges are accountable to the Constitution and the law, which they must apply honestly, independently and with integrity, is broadly accepted in all democratic societies…," Justice Allen wrote.

"Judicial independence has two dimensions, an individual dimension, which embodies the independence of a particular judge and an institutional dimension, which is the relationship of the judiciary to the other branches of government.

"It also has three essential characteristics, namely, security of tenure, security of salary and pension and administrative independence, which in The Bahamas, is limited to matters of administration bearing directly on the exercise of the court’s judicial functions such as the assignment of judges, the sittings of the court and the preparation of court lists."

Justice Allen said the constitutional protection of judicial independence requires both the existence, in fact, of these characteristics and the maintenance of the perception that they exist.

She said it remains to be seen whether tradition, reinforced only by public opinion, is a sufficient safeguard of judicial independence of magistrates and meets the muster of article 20 of the Constitution.

"Although it is not necessary to deal with this matter in order to dispose of the objections herein, yet I believe it would be helpful to lay the matter to rest," the senior judge said.

"The grounds upon which my independence and impartiality are challenged arise from the alleged actions of the executive and it stands to reason that any apparent lack of independence and impartiality arising there from could only possibly affect matters involving the executive. In my view, different considerations would apply in disputes between private parties in which there was no lack of the requisite appearance of independence and impartiality."

The judge indicated that judicial independence requires that judges have financial security. An aspect of that security is that judicial salaries should be commensurate with the status, dignity and responsibility of judicial office and should be regularly adjusted to account fully for cost of living increases, she said.

"It is a fact that no commission was appointed in 2003 and the appointment of a commission in 2006 was delayed until November 2006, resulting in no review of judges’ salaries for more than six years," Justice Allen noted.

But she said, "This of course is not a problem confined to the Bahamas. Notwithstanding the global nature of the problem, however, the government’s failure in this regard is egregious and a potentially serious threat to the health and judicial independence in The Bahamas."

Noting that the situation resulted in certain pronouncements by Justice Lyons, Justice Allen said, "In my view, substantial deference by a court is always appropriate when dealing with the issue of salaries for judges. By the same token however, the government should never put a judge in that position and should follow the law."

She said, "There is no doubt that this situation has a potential negative impact on the public’s perception of judicial independence and to undermine public confidence in our system of justice. The best outcome for judicial independence and indeed for the citizens of this country, whose privilege it is, would be for the commission process to be completed without any further delay."

Justice Allen then turned to the question of whether in the events, which have happened, there is an appearance of bias.

"In my view, the fair-minded informed observer would be aware of the centuries-long tradition of judicial independence of the courts of The Bahamas; he would be aware that judges respect and adhere to their oath to discharge their judicial functions ‘without fear or favour, affection or ill will’, and he will be aware that despite the failure of the government to review salaries and to adequately compensate judges, they continue to sit and to perform their judicial functions in accordance with their oaths."

She said that such an observer would also discover that judges are accountable only to the constitution and to the law for their decisions, and that there are no performance appraisals of judges by anyone within or outside the judiciary.

"In my view, these matters are a sufficient guarantee to exclude all legitimate doubt about my independence and impartiality and I am unable to see how a fair-minded informed observer could perceive otherwise," the judge concluded.

"In conclusion, having ascertained all of the circumstances, which bear on the appearance of bias, and having asked myself whether these circumstances would lead a fair-minded informed observer to conclude that there was a real possibility that I was not independent and impartial I find that the circumstances, neither singly nor collectively, would. In the premises, I find that I am not ‘constitutionally infirmed’, that I meet the requirements of Article 20(1) of the constitution and will re-sentence the convict, Keith Aaron Jones."

2 February 2007

Bahamian Law