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THE INDEPENDENCE OF THE JUDICIARY
During the year, concern continued to mount on the
Independence of the Judiciary. Despite the fact that there was the bright
spot of the decision of Justice Anita Allen in the case declaring sections
of the Financial Intelligence Unit Act unconstitutional, the trend though
subtle seemed to be a continued dominance of the Judiciary by the executive.
Unfortunately, the public does not feel or seem to be sufficiently exercised by this point, nor are the practitioners at the Bar. Most members of the public only become concerned when their personal interests are at stake. Members of the Bar complain privately but go blithely along oblivious in the main to their responsibilities to the nation as a whole to prevent the Government from subverting the Judiciary in overt as well as covert ways.
You will recall that in previous years, this Senator has complained about the fact that Bahamianization of the judiciary does not seem to be a priority of successive Governments of the country. Under the present dispensation, the situation is worse than ever.
Of the 11 slots for Judges on the Supreme Court Bench, four are occupied by Bahamians as nationalities of origin. Of the other seven, one is a Bahamian as a nationality of choice. The others do not have Bahamian nationality. This is clearly an untenable situation. Not only does the country continue to rely on the availability of persons who wish to flee for whatever reason their own countries but the quality of Justice must suffer in situations where it appears to many that those who come from the outside are subtly influenced by the threat that as outsiders they can be excluded from the country.
Of the 18 Stipendiary and Circuit Magistrates, 14 are Bahamian. Most recently, a Magistrate from Jamaica Robert Alexander Campbell was brought into the country to man the Coroners' Court. The Court became vacant when Winston Saunders, a Bahamian resigned last year. Mr. Saunders had to be brought back during the course of this year on a temporary basis, and he continues to finish matters on a part time basis. The new Magistrate has not yet begun to be known publicly. We find that Court to be a useful public service and we wait to see its disposition under the new Magistrate.
In one case, one of the countries from which many of the Judges both at the Supreme Court and the appellate level come, that country suffers from a traditional caste system in which persons of Negro ancestry are despised and discriminated against. There is no public scrutiny of how Judges are chosen in The Bahamas, who are the Judges that come here. The country would do well then to make it possible for Bahamians to serve on the Court by improving salaries and working conditions.
In that light we wish to congratulate Jeanne Thompson who has joined us many times under the fig tree here in the quest of a better system of Justice. She is to be sworn in as a Judge of the Supreme Court at 12 noon today. We wish her well. And we have prepared a plaque to present to her to mark her assistance to the greater public as a member of the bar and in her wider public advocacy on behalf of the dispossessed.
We expressed our concern during the course of the year about the fact that the Government seemed to be playing musical chairs with the allocation of Judgeships both at the Court of Appeal level and at the level of the Supreme Court. During the year, Dame Joan Sawyer retired as Chief Justice of the Supreme Court and was elevated to President of the Court of Appeal. She was joined by Emmanuel Osadebay who was also elevated to the Court of Appeal. Sir Burton Hall, now Chief Justice, began the year as President of the Court of Appeal. He was given the job as Chief Justice and duly knighted. While there is no objection per se to the appointments, it all smacked of playing fast and loose with the Courts by the Government as if it were a plaything and not a serious institution. And the choice of President of the Court of Appeal seemed motivated more by legacy building, to be able to say that the appointer of the office was responsible for a Judge of that gender being placed at that level on the Court.
Also in the Supreme Court Vera Watkins who had been serving as a Magistrate was elevated to the level of Acting Judge of the Supreme Court. To the surprise of many practitioners, the acting appointment was not confirmed and she was sent down to the post of Chief Magistrate. The speculation was that this came about because of the political fortunes of her husband who opposes the Prime Minister politically.
Jon Isaacs should have been confirmed as a Judge of the Supreme Court but he continues to act after almost two years in the job. The lack of the permanent appointment created an embarrassment on the court during the year when an extradition hearing before him had to be adjourned because the tenure of his appointment had ended its course.
Now comes the news that the Government has offered all Judges of all Courts in The Bahamas, who are not Bahamians, the right to reside with the right to work in The Bahamas. The fee for Permanent Residence is normally $10,000. The Government has reportedly agreed to waive the fee or pay for the fees so that there is no expense to Judges. This is quite a curious development. It can be criticized as a benefit being bestowed improperly upon Judges by the Government. It can also be criticized as unfair when one considers that poor people who have lived and worked in this country as immigrants have to scrap to find the $10,000 to pay for the privilege of permanent residence.
I am so concerned about the manipulations of the Judiciary and the subtle and sometimes not so subtle interference in its work by the executive that I am urging colleagues to join me in a call for the Organization of American States structures on Human Rights to conduct a thorough review of the Bahamian courts with a view to determining whether or not the Judiciary has been undermined by the deliberate actions of the Prime Minister and his Cabinet.
THE MAGISTRATES COURTS
This is still the nuts and bolts of the system of
justice in the country. Most cases are heard before these courts. On the
civil side, a review must be done by the Government to determine what can
be done to make these courts more effective. Persons sue for small claims
in these courts, but enforcement procedures are lax. Courts that are supposed
to dispense justice, with less regard to formalism like the rules of evidence
do just the opposite.
The civil claims court in the Magistrates' Court that deals with matters below $5000 is often a nightmare for unrepresented litigants. There is too much reliance on formalism and technicalities and justice escapes in the process. Part of the difficulty is that Magistrates are so overwhelmed by the sheer number of cases that they use any technical devices to simply get the matters off their plates. And further, it appears that the record keeping in the Magistrates' Courts with regard to these matters is so sloppy that one is not quite sure where a civil matter stands.
Add to that the fact that the state of the law is never quite certain in The Bahamas. The Parliament has passed numerous bits of legislation without regard to the bureaucratic matters that must accompany changes in legislation. The Courts are very often unaware of changes in the law, and further have no copies of the legislation available to them so that they can apply changes in the law.
The Domestic Courts are badly in need of assistance. Those who work the domestic courts are to be commended for their infinite patience in dealing with the volume of cases before them. But despite their best efforts, many women give up on affiliation proceedings to get support for their children simply because the system is unable to serve them in a timely fashion. Further the system is unable to enforce or compel its orders. That is a matter that must be reviewed as a matter of urgency.
But the main fault in the Magistracy must be the fact that the physical facilities available to Magistrates are so poor. There was a fire at the beginning of 2001 in the Magistrates Courts in Nassau Street. Despite the high profile promises of the Attorney General that the Courts would be repaired immediately, nothing to date has been done to effect those promises, but for a single event within the last week. Workmen have moved the roof from the burnt out buildings. But all through the year, Magistrates and the public have been sharing courts in Bank Lane, Parliament Street and Victoria Gardens.
This situation is untenable and cannot continue. One court meets from 10 to 1:30 p.m. and another Court meets from 2 to 4:30 p.m. One can imagine the delays occasioned by this and the confusion this engenders. The working conditions of magistrates are appalling. The Courts in Victoria Gardens and the Court on Parliament Street house three courts. When it rains, not only do the courts flood in Victoria Gardens but also sewerage from a nearby Ministry of Health facility overflows into the building. They house two courts in the daytime and one during the night and there is a permanent malodourous condition in these courts.
The Chief Magistrate herself has to share a court with another Magistrate.
The Government cannot say that this is an acceptable state of affairs. Yet the system continues to collect vast sums of money from the collection of fines levied by the Courts. And as the Government struggles to make up a shortfall in revenues, traffic fine in particular have become an important source of revenue. Fortunately the Security and Intelligence Branch has taken over the collection of monies from the Courts, relieving some of the feelings of insecurity. But the physical plant is deteriorating, that it is underutilized and improperly maintained is a great source of concern to this Senator and should be to the general public.
It is not safe for Magistrates to continue to work in these facilities.
FREEPORT
Justice Stanley Moore has been manning the Court
in Freeport on his own for the year, since Justice Jeffrey Lyons was moved
to Nassau without notice. The predictable result has been a backlog on
the civil side as criminal matters take high priority. The judge has also
had to hear interlocutory applications, which is an enormous workload on
one person. A second judge needs to be appointed for Freeport. It appears
that the Government has identified a former draughtsman from the Attorney
General's office for the job. Mr. Justice Moore's tenure comes to an end
during the next year when he reaches his 67th birthday, unless constitutional
amendments proposed by the Government are passed in the meantime. He will
then be able to serve until the age of 70.
THE PRIVY COUNCIL
In many respects the Privy Council has been the
saviour of the excesses of the local courts. It appears that often the
human face of justice awaits the ultimate consideration in London, amongst
people who are strangers to us.
Notwithstanding the declaration of the Bahamian Government that it will not join the Caribbean Court of Justice as a replacement forth Privy Council, there is continued pressure for us to do so. The replacement of the Court seems purely based on the unpopularity of its decisions on the death penalty.
During the year, the Bahamas hosted three British Judges. They were Lord Wolff, the Lord Chief Justice and the author of the reforms that led to the overhaul of the rules of civil procedure in Britain; Lord Millett and Lord Steyn. Lord Steyn wrote the dissent in the case Fisher No. 2 that was a sweeping indictment of the courts and the prison system in The Bahamas. I now have no hesitation in saying that eventually the view of Lord Steyn must prevail. This clearly was a call for reform of the prison system and the process of review at the stage of the Committee on the Prerogative of Mercy.
The Committee does not meet on a timely basis, and many applications to it for review are outstanding without any early prospect of consideration.
But several observations arise out of the visits of the judges from Britain. First it appears that the British themselves are fighting for the life of the Privy Council by giving it a human face in our countries. Secondly, with the civil law reforms in Britain and the integration of Britain into Europe it further appears that the jurisprudence of our two countries will be ever widening.
The Government it seems plans to go ahead with the obligation under the protocol of the arrangements for the Council of Legal Education of the West Indies to abolish the British qualification for automatic enrollment in the Bar in The Bahamas. Once that is done, all persons will have to have a certificate of the Council of Legal Education before they will be able to practice in this jurisdiction. This Senator opposes that change in the law.
But it is also clear that the civil law procedures of The Bahamas must change from this over reliance on technical rules of procedure that work against the justice of a person's case actually getting an honest chance to be heard.
I call for the Chief Justice to immediately initiate those reforms with a view to doing away with the current Rules of the Supreme Court and replacing them with a system that is based on the Wolff Reforms in the United Kingdom. It will do the whole country good to remove itself from the shackles of overly technical rules of procedure.
AN APPEAL TO THE PUBLIC
We end this review with an appeal to all candidates
in the upcoming elections to press their respective political parties to
press for legal reform in this country. The Government seeks now to push
through various changes in the Constitution. None of them are more urgent
than the need for urgent reforms in the system of justice so that cases
might be heard on a timely basis, and the ordinary member of the public
gets a chance to get a fair hearing in a reasonable time. That is what
the present constitution envisages and we have not yet lived up to that
ideal. I urge further public agitation to ensure that this ideal is reached
and surpassed.