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The Judicial Committee of Her Majesty’s Privy Council, the Final Appellate Court of the Commonwealth of The Bahamas - At Work in The Islands Again
Related to country: Bahamas
Translations available in: English (original) | French | Spanish | Italian | German | Portuguese | Swedish | Russian | Dutch | Arabic

Privy Council Sitting In Bahamas For Second Time -
By TOSHEENA ROBINSON-BLAIR:
Nassau, Bahamas:


With much pomp and pageantry, the country on Monday welcomed the U.K.-based Privy Council to The Bahamas before the law lords got down to the business of hearing the first case – a murder appeal – on their agenda while here.

On Monday, the Judicial Committee dealt with murder convict Quincy Todd’s appeal of his conviction. The delay in appeal was a result of Todd’s difficulty to obtain legal representation.

Todd was found guilty of the 1994 murder of Venette Bellizaire.

He was convicted on February 23, 1998 of the murder of the young Haitian woman and sentenced to death. It is reported that he picked up Bellizaire from a bus stop in downtown Freeport on August 25, 1994 in a grey Nissan Sunny.

The victim was never seen alive again.

The court heard that on September 21, 1994, police interviewed him and he eventually directed them to an area where skeletal remains, clothing, a watch and other jewelry were found.

Two pieces of rock with what appeared to be human hair attached to them were also discovered in the area. A pathologist determined that Bellizaire’s death was due to fractures to the skull.

Representing Todd is James Guthrie QC and local attorney Jerone Roberts.

Mr. Guthrie, the lead attorney, told the Privy Council Monday that the appeal is being made essentially on two grounds – that two crime scene photographs should not have been admitted and that an oral confession not allowed in by the trial judge at that time, Justice Joan Sawyer, was repeated during the trial.

James Dingemans QC and Cheryl Grant Bethel, deputy director of public prosecution, argued otherwise.

Mr. Dingemans, the prosecuting lead attorney, suggested that the pictures were rightfully included into evidence. He also argued that Todd’s oral confession, mentioned on the witness stand by the investigating officer, came out during cross examination by Todd’s own attorney.

In The Days Ahead

The five law lords will also hear the case of James F. Walker versus Susan Lundberg.

In this case the court ordered a sale of land owned by a man who went bankrupt. The question is could the court order the sale of his land, including his wife’s interest in the property.

A Privy Council ruling in the matter has the potential to significantly impact the country’s joint tenants law.

The two other cases to be heard is Donald King Knight versus the Attorney General of The Cayman Island and the Bahamas Telecommunications Company Limited versus the Public Utilities Commission and System Resource Group Limited.

The Right Honourable Lord Hope of Craighead advised against those concerned expecting an immediate ruling.

"The style we adopt is listening to arguments and testing it," he told the court Monday morning. "Do not expect an instant decision."

He said the court takes time to deliver a ruling in any matter.

Hearing the matters are Lord Hope, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Manee and Sir Christopher Rose.

Pomp & Pageantry

Prior to the start of Monday’s proceedings, Lord Hope of Craighead inspected the guard of honour and was greeted by high-ranking police officers outside the Court of Appeal building.

The corner of Shirley and Charlotte streets was blocked off to traffic as the ceremonial inspection took place.

Following that, leading members of the judiciary welcomed the law lords.

According to the Attorney General Claire Hepburn this second visit in the space of two years is as equally historic as the first.

"The ultimate benefit from these sittings in the Bahamas beyond the repatriation of the judicial process to our shores, beyond the convenience to the litigants in these matters, may well prove to be the ability of the Bahamian people to see the Judicial Committee of Her Majesty’s Privy Council, the final appellate Court of the Commonwealth of the Bahamas, at work in The Bahamas, to see that it is not some mythical grouping in the sky, but a board comprised of men and women applying Bahamian law to Bahamian legal matters," she said.

Also bringing remarks at the opening ceremony held at the Court of Appeal’s Charlotte Street building was former governor general and attorney Sir Orville Turnquest who noted that the Privy Council has set a standard for judicial excellence which has "promoted confidence, stability and reliance in the rule of law."

President of the Bahamas Bar Council Wayne Munroe pointed to the presence of members and students of the local law school. This, he said, was an experience for them to see the law being made, which they would typically only get to read about in their textbooks.

On behalf of the Privy Council, Lord Hope said the court is here because it has been invited to come.

He categorized last year’s sitting as a successful experiment and said this year’s sitting would further cement the council’s relationship with this jurisdiction.

Lord Hope noted that the Privy Council offers a service and does not seek to force itself on a state or jurisdiction that does not want it.

He said the Privy Council sits in public so that it might be seen and heard by the public and aid in the "demystification" surrounding the work the court carries out.

18 December 2007

December 19, 2007 | 10:42 PM Comments  0 comments


Fayne Thompson - Bahamian attorney says that the resumption of capital punishment in The Bahamas may not be legally possible
Related to country: Bahamas
Translations available in: English (original) | French | Spanish | Italian | German | Portuguese | Swedish | Russian | Dutch | Arabic

Resumption of death penalty may not be possible, says lawyer:
By KRYSTEL ROLLE, Guardian Staff Reporter-
Nassau, Bahamas:


Despite the Prime Minister's assurances that his government would do all it could to ensure the resumption of capital punishment, a seasoned attorney said that may not be legally possible.

Acknowledging that nothing has been done to address the March 2006 Privy Council ruling, which found that the mandatory death sentence was "unconstitutional," Prime Minister Hubert Ingraham said last month that the government would do its "utmost to have these legal obstacles determined" in the shortest possible time.

However, yesterday attorney Fayne Thompson said he did not know that the legal positions allow the prime minister "to even consider that unless some of these mediations are clarified."

In the face of an escalating murder rate, Bahamians have been calling for the government to do something -- with capital punishment at the top of their lists. And with the latest murder on Friday, which brought the homicide count to 75 -- the highest number ever recorded in the history of the Bahamas -- calls for capital punishment are expected to get louder.

According to Thompson, sentencing guidelines have to be put in place so that the tariffs which help differentiate convictions like murder one, murder two and manslaughter can be established.

"When we get that distinction right, similar to what many civilized countries have already done around the world, I do not believe there will be another hanging in this country," said Thompson. "I believe that our politicians and the Prime Minister have been disingenuous, when they talk about hanging taking place."

His comments came during the Parliament Street talk show, hosted by Steve McKinney. Also present was community activist Dr. Elwood Donaldson, who also discussed the issue.

The Prime Minister had said after his return from CHOGM in Uganda, that the death penalty had to be constitutional. "The United Nations Human Rights Declaration permits it. It will take us awhile to get the procedure right, but we will be working on that as swiftly as we can so that we can carry out the ultimate penalty under the law, if and when it is justified," the PM said.

After the Free National Movement took office in 1992 there five executions.

Before the Privy Council Ruling, once a person was convicted of murder, the death penalty was mandatory. However, if that person was made to wait on death row for 5 years, the sentence was reduced to life in prison.

Donaldson, who supports capital punishment, said that rule was only put in place to obstruct persons from carrying out the law.

Since 1929, fifty men have been hung - five under the FNM and 13 when former Prime Minister the Late Sir Lynden Pindling was in office.

Donaldson said individuals who interrupt the safety of society have to be dealt with in one of two forms: Terminating the existence of the threat -- murder being the ultimate threat -- or jail time.

Whether the government should hang people is not the issue, he said. According to him, government needs to address the question of how the country got "to this place". He said, "The hanging is only one part. This society is no longer a place for decent people."

December 10, 2007 | 8:43 PM Comments  0 comments


Bahamas: Senior Justice Anita Allen Accuses Bahamas Government Of “Egregious” Actions...
Related to country: Bahamas

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

February 3, 2007 | 9:51 AM Comments  0 comments
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Judicial Independence Argument Raised In The Bahamas Supreme Court
Related to country: Bahamas

Judicial Independence Argument Raised In Court:
By Darrin Culmer -
Nassau, Bahamas:

The hotly-debated issue of judicial independence arose again Thursday when counsel appearing on behalf of a murder convict in his re-sentencing hearing requested that the judge recuse herself from the proceedings.

Representing Keith Jones in the Supreme Court, attorney Wayne Munroe based his challenge on the ground that there might be a perception by reasonable members of the public that Senior Justice Anita Allen lacks judicial independence and is therefore not properly able to preside over the re-sentencing.

Jones was convicted of the October 1999 murder of James Rolle.

According to Mr. Munroe, the possible public apprehension that Senior Justice Allen lacks independence as a member of the judiciary is founded upon the fact that the government twice failed to appoint a commission to review the salaries and other compensation of justices of the Supreme Court and Court of Appeal as required by the Judges Remuneration and Pensions Act.

This perceived lack of independence, he contended, was inconsistent with a person’s constitutional right to a fair hearing within a reasonable time by an independent and impartial court.

Renewing the spotlight on the swift justice campaign launched by Attorney General Allyson Maynard-Gibson last year, Mr. Munroe further submitted that there could be a perception that the judiciary’s independence has been compromised by that initiative and the resulting report card issued on the performance of various courts.

In its submissions the prosecution maintained that the essential tenet of judicial independence has not been infringed and that judges are capable of performing their judicial functions.

After hearing the submissions of both sides Justice Allen adjourned the matter until next week Friday.

The review of Jones’ death sentence, along with those of a number of other death row inmates, was made necessary following the landmark ruling of the Privy Council last March, which held that the mandatory death sentence is unconstitutional in The Bahamas.

19 January 2007

January 19, 2007 | 7:32 PM Comments  0 comments
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Bahamas Government: "There is no Constitutional Crisis as Alleged by Mr. Justice Lyons."
Related to country: Bahamas

Gov’t: No Crisis:

By Quincy Parker -
Nassau, Bahamas:

The government has fired back after being accused by a sitting Justice of the Supreme Court of twice breaking the law and creating a constitutional crisis by seemingly undermining the independence of the judiciary.

The government released a statement Tuesday evening denying that there was a constitutional crisis, and expressing confidence that the government’s "position in this matter will be upheld and vindicated through the appellate process of the courts."

According to Supreme Court Justice John Lyons, the third ranking judge of the Supreme Court, the government’s apparently deliberate failure to appoint a commission in both 2003 and 2006 to review the judges’ salaries and conditions created crisis "of the most serious nature."

"If this was a deliberate act by the Cabinet, then (and there is no dull edge to this) this must be considered a deliberate attack on the independence of the judiciary," Justice Lyons wrote in his 30-page decision.

"And that, in turn, is an attack on the fundamental constitutional rights enjoyed by all persons of this country…I am in no doubt that, whichever way it is looked at, this is a very serious constitutional crisis."

Later in his ruling, Justice Lyons said the Cabinet had breached the same law twice, referring to Section 4 of the Judges Remunerations and Pensions Act, which he said was designed to protect a foundation pillar of the Bahamas Constitution.

"When government or Cabinet flouts the law," the judge wrote, "it is a constitutional crisis of the most serious nature. In responsible countries with a truly democratic and accountable system of governance the only suitable resolution is resignation."

But the government’s press release said, "There is no constitutional crisis as alleged by Mr. Justice Lyons."

"The judgments of Mr. Justice Lyons issued in Freeport (on November 6 2006) are carefully being reviewed by the Office of the Attorney General and the Office will take the appropriate appellate steps deemed necessary; as indeed Justice Lyons has invited to be done," the statement said.

"The Cabinet has at all times acted according to law and behaved with constitutional propriety throughout."

Without going into specifics or addressing any of the particulars raised by Justice Lyons, the government’s statement assured that "steps are being taken to implement the decisions of the Cabinet."

According to Justice Lyons, the government broke the law twice by disregarding the Act, particularly Section 4, which sets out the terms for appointing an independent commission to review the remuneration of judges.

"By (breaking the law) the Cabinet has shown a manifest disregard for the rule of law. What is of great concern is that the law that has been broken…is the very law designed specifically to protect against the undermining of the independence of the judiciary."

The government’s statement insisted that "the Government reaffirms its commitment to the independence of the judiciary and in no way has it compromised the independence of the judiciary, nor in any way is that independence now compromised."

8 November 2006

November 10, 2006 | 9:37 PM Comments  0 comments
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