Chief Justice Troubled:

By Candia Dames -
Nassau, Bahamas:

In his first public comments since two stunning rulings from Supreme Court Justice John Lyons sparked widespread debate about the independence of the judiciary, Chief Justice Sir Burton Hall admitted that he is troubled by the controversy.

But Sir Burton refused to be pinned down on any matter related directly to Mr. Lyons’ rulings and pronouncements from the bench, saying he was determined not to be "set up" by his interviewers when he appeared as a guest on the Love 97 flagship programme "Jones and Company", which aired on Sunday.

Sir Burton explained that it would not be appropriate for any judge to comment on the judgment of another judge, and he said a judge is never wrong in his own court and can only be proven wrong by an appeals court.

He added, however, "The fact that a judge is overturned on appeal wouldn’t necessarily be a sign of incompetence. Bear in mind that…each judgment is a matter of opinion…each judge is in conscience bound by his judicial oath to do right as he sees it."

Sir Burton also said the fact that a judge may be a contrarian does not necessarily mean that he is wrong.

In his rulings of November 6, Justice Lyons accused the government of breaking the law on two occasions by failing to appoint a commission in accordance with the Judicial Remuneration and Pensions Act to review the salaries of judges.

He said this has compromised the independence of the judiciary and he accused the government of plunging the country into a constitutional crisis.

Again, Sir Burton declined to say specifically whether the judiciary is independent in The Bahamas, but he said as it regarded the three areas of judicial independence – adjudicative independence, institutional independence and administrative independence – there were some "serious challenges" with administrative independence.

Sir Burton pointed out, for instance, that the judiciary is dependent upon government and the public purse for salaries, and administrative improvements in the judiciary, and has to compete for public funds as the government has other obligations it has to meet.

The chief justice also said that friction between institutions – if it does exist – is not answerable in a courtroom, but is a debate the public at large must be engaged in.

The attorney general has appealed the rulings of Justice Lyons, but this is not something Sir Burton commented on when he appeared on Love 97’s "Jones and Company". He was clear to stay away from getting bogged down in the controversy.

Asked whether it was right for a justice to make himself controversial by drawing attention to his race and place of origin, the chief justice said, "Some judicial officers may be at pains to use language to avoid anything which may possibly become controversial, and even then they do not necessarily succeed. And others may not see the need to be as cautious, but again, this is a personal idiosyncrasy."

Speaking in a Freeport court last Monday, Justice Lyons suggested that his personal security may be threatened because of the colour of his skin, and because – in his words – Attorney General Allyson Maynard-Gibson called his integrity into question by saying that he had been misleading in his November 6 rulings.

But Sir Burton said he had no comment on this suggestion from the judge.

The show’s host, Wendall Jones, pressed him, saying, "If you have a judge who believes that his personal security is at risk wouldn’t you as chief justice be concerned about that?"

Sir Burton responded, "The matter of security would be – if any judge or indeed any member of the support staff has a concern in that regard, I would think that they would bring it to my attention and I would then refer it to those responsible for security."

He said the matter of Justice Lyons’ reported concerns for his safety had not been brought to his attention.

Sir Burton pointed out that all judges except Justice Lyons are hearing cases, and Mr. Jones asked whether this was an indication that those judges do not agree with the conclusions of Justice Lyons.

The chief justice simply responded, "As a reasonable observer, Mr. Jones, you are perfectly entitled to arrive at that conclusion."

Mr. Jones shot back, "But it is true isn’t it?"

Sir Burton said, "It is true that the judges have continued to sit. Each judge has continued to work his (or her) list."

While admitting that he was troubled by the ongoing controversy surrounding the judiciary, Sir Burton said he was relieved because the debate was providing an opportunity for more members of the public to become knowledgeable about the judiciary.

27 November 2006

bahamian law