REVIEW OF THE JUDICIARY
Senator the Honourable Fred Mitchell Delivered under the Fig Tree, Supreme Court
Nassau, The Bahamas
Monday 8th January, 2001
PHOTOGRAPHS BY TIM AYLEN
Permit a personal sentiment with regard to the Judicial branch of the Government of The Bahamas. There is no or no sufficient accountability of the Judicial Branch of the Government to the people of The Bahamas. It means therefore that short of a full-scale constitutional exercise to remove a judge or magistrate from office, or the review of the jurisdiction and actions of an inferior court, there is no way for the public to complain about the possible abuse of a magistrate or judge or a court official or a judge of the labour tribunals.
Some actions of officers in these courts have bordered on abuse of discretion but litigants do not have the money or temerity to face a procedure for judicial review or appeal. The constitutional provision for the removal of judges or magistrates has never been invoked and the officials are unlikely to be moved by it.
What is required is a complaint's unit about the actions of judges and magistrates similar to that now used by the Royal Bahamas Police Force where matters of abuse are believed to have been visited upon litigants and defendants before the Courts.
In one court, there are persistent complaints about a Magistrate not having a sufficient judicial temperament for the job. The complaint is that in one Magistrates Court, counsel and defendants are spoken to in a rude and discourteous manner in circumstances where counsel and defendants are courteous and deferential in the extreme to the court. Further, it appears that the presumption of innocence is no longer applicable in that court. In another Court, a Magistrate has arbitrarily decided that men will not be allowed to wear earrings in their ears, despite the fact that women are allowed to do so. This is patently discriminatory based on gender, and given the fact that the culture and style of the country has significantly changed with regard to male dress and styles; such a decision cannot be supported.
Given the socioeconomic level at which these complaints would emanate, it would be difficult for any of these persons to mount a constitutional action to reverse these decisions.
There is also a persistent problem in one Magistrates Court with regard to the setting of excessive bail. Many defendants find themselves routinely in that court having to proceed to the Supreme Court to reduce excessive bail. Again, this is a costly exercise for defendants.
A possible solution to this is to have a set of guidelines for bail set by the Chief Justice for Magistrates and other Judges to follow. This is similar to the power that the Chief Justice now has since Parliament passed new legislation last year to provide for sentencing guidelines.
For the moment, this is pointed out to the Judicial Branch of the Government for its consideration.
It has been said many times during previous reviews that the Judicial branch of the Government makes public policy. What it does affects the lives of the citizens of this country every day. They must be made accountable in a democratic society for their actions. The legislature and the Cabinet ultimately have to face elections. But the Judiciary seems to see itself as a law unto itself, with many in the media aiding and abetting them in the argument that their decisions are above the scrutiny of the people. That cannot be.
And in this regard, we remind the Judicial Branch of the Government and the media of the quote from Lord Denning that justice is not a cloistered virtue.
THE CORONERS COURT
Nowhere was it more clear during the year of the impact of a Court on the lives of individuals in the country and on public policy than in the Coroners Court. The Coroner is a statutory creature established in 1910 under the act that can be found in Chapter 43 of the statute laws of the Commonwealth of the Bahamas 1987.
We point out that the Court has been manned by Winston Saunders since 1992, and a credible job has been done with the work of the Coroner. The remit of the Coroner is to investigate deaths for which there is no explanation and if possible to make findings of fact and charge criminal offenses where a finding of homicide is made by the jury.
The juries are made up of 7 persons who can be press-ganged from the streets by the Court. They must be over the age of 21 and they can be men or women. In practice many of the jurors on Coroners Court juries appear on several juries during the year, because unlike the Supreme Court there is no list of registered voters from which to draw.
The Court has made some satisfactory decisions, more often than not. It has brought closure to scores of families who had no other recourse. In many cases charges have been brought against persons in cases where the Attorney General or the police refuse or feel unable to prosecute someone for a homicide. It has also been useful where persons have gone missing in circumstances where it is obvious that they are dead, but insurance companies refuse to pay until there is a finding of death by a competent court.
The Coroners Court is also responsible for the investigation into the death of any person who dies in custody whether in the custody of the police, in Her Majestys Prison, or in the Sandilands Hospital.
The public has accepted the work of the Court. And the Government should take note as Winston Saunders has resigned and demitted office, largely over frustrations with the inability to reform the Court. He has now gone back into private practice. The Courts usefulness is that the public now knows that there is a place to go to when there is an unexplained death that might bring closure to the death of their loved one.
The Government should move expeditiously therefore to appoint someone else to fill Mr. Saunders position so that we do not end up with a situation similar to that prior to 1992 when so many requests for inquests had been made and there was no action whatsoever on those inquests. The Government should also send a formal note of thanks to Mr. Saunders for his efforts in organizing the work of the Court.
WHEN THE CORONERS COURT FELL INTO ERROR
The Coroners Court however, was not perfect, and two cases in particular point to the need for legal reform of the powers of the Court and the clarification of what the public policy ought to be on freedom of information.
The first case is that of the inquest into the death of John Higgs. Mr. Higgs was an inmate at Her Majestys Prison who died by his own hand shortly before he was to be executed in February 2000 for murder of his wife. An anonymous note was delivered to Radio Talk show host and legislator Senator Obie Wilchcombe, which note purportedly was written by the hand of Mr. Higgs explaining why he had taken the action that he did to cheat the hangman.
Mr. Wilchcombe, not being properly summoned, to the Court nevertheless agreed to appear and give evidence during the inquest. In the course of his testimony, he refused to reveal the place where the note was given to him on the grounds that as a journalist he could not in all conscience reveal the source of the note. He claimed that to reveal the place where he got the note might also reveal the source.
In the event, the Court exercised a statutory power to commit Senator Wilchcombe to Her Majestys prison for four days for refusing to answer the question. The decision was an outrage and flew in the face of the right of a journalist to protect his source. The law of The Bahamas does not confer such a right as such, but it is clear to this author that in the contemporary climate of freedom of speech and the press, the press has impliedly under our constitution a right to refuse to answer on the grounds that the source would be revealed. In the jurisprudence of the European Convention on Human Rights, the freedom of expression provisions similar to our article 23 of the Constitution provide such protection to journalists.
While journalists who are line staff supported their colleague, the management of the press did not. The press seemed to acquiesce in the face of the judicial branch's exercise of authority. The argument of the Judicial branch is that in a case where there are competing public interests, i.e. the right under the freedom of expression provisions to protect a source on the one hand and the right of the Court to know information that might lead to uncover criminal activity or simply to activity that the Court in its discretion needs to know, the Courts right supersedes that of the journalist.
Try as we might counsel for Senator Wilchcombe, this Senator and Mrs. Glenys Hanna Martin could not persuade either the Coroner, the Supreme Court or the Court of Appeal that in Senator Wilchcombes case, the Court ought to defer to the protections in a democratic society for the press. And so Senator Wilchcombe was made to suffer the indignity of four days in jail.
The case is instructive for a number of reasons. First it points out the need for reform of the Coroners Act. For the moment I will limit that call for reform to the need to provide for an appeal of any decision of the Coroner. As Counsel for Senator Wilchcombe we were stuck in the unhappy position of having to proceed by way of judicial review of the decision of the Coroner. This means that one can only succeed if the Coroner made a procedural error or the decision was manifestly unreasonable. Superior Courts are otherwise reluctant and unable to interfere.
It is time therefore for the legislature to intervene and to ensure that the press is able to protect its sources in these cases.
It is an interesting irony that during the judicial review of Senator Wilchcombes case, the Court could not be persuaded that the demand of the Coroner for information did not even meet the present test that the information was relevant and necessary for the inquiry. As it turns out, the assertion by Senator Wilchcombes attorneys was correct. The fact is there was a razor blade found in the cell and the jury concluded that Mr. Higgs got assistance from inside the prison to kill himself. Senator Wilchcombe was in no way implicated in that. So the basis upon which the Coroner sought the information did not in fact exist at the beginning, yet the man had to spend four days in prison. And there does not appear to be any redress available to Senator Wilchcombe.
THE ROSLYN ASTWOOD CASE
The second case that demonstrated the need for reform of the Coroners Court was that of the teacher at S.C McPherson who was charged with manslaughter as a result of the verdict of a Coroners Jurys decision on 29 November in the case of the death of Shawn Evans a student at the S.C. McPherson school who was punished by six strokes of a jumbey switch on his hand. The child later died because of an undisclosed heart disease. The charges against Mrs. Astwood were subsequently discontinued on 29 December by the order of the Attorney General.
It should be said that it may still be necessary despite the writ of nolle prosequi by the Attorney General to have to go to court to quash the finding of the Coroners Court. However, what the verdict showed is that there need immediately to reform the Coroners enabling statute to limit the kinds of verdicts that can be brought by the Coroners Court.
We are aware that there has been a substantial review of the existing legislation, having full regard for the reforms that have been brought in the United Kingdom. Those reform proposals are before the Attorney General and she has not moved on them. It is time for us to move toward the position where those reforms are put in place.
The Court should be fully established and constituted, with a proper office, staff and budget that is separate and apart from that of the general Judicial branch, so that the Coroner may move about the country as it is necessary.
The reforms would enable the establishment of such a Court. It would also see the appointment of Deputy Coroners. It would limit the kinds of verdicts that juries can bring. It would make it clear that juries in the Coroner's Courts should not venture into civil findings of fact, as they have no relevance in their inquiries. It would give the Coroner the power to make certain recommendations to the Attorney General upon recommendations of the Coroner or the juries. It should move the power to charge a person but only give the power to make a recommendation to the Attorney General. Parliament should move expeditiously to consider these reforms. And I repeat the need to provide for an appeal of the findings of a Coroner.
THE PRIVY COUNCIL
The Privy Council continued to be an effective highest court of the land for The Bahamas and the other nations of the Caribbean. Despite the nationalist talk about abolishing the Court, largely because of the unhappiness with the strictures put on the application of the death penalty, the court continues to be the Court of final appeal. The Caribbean Court of Appeal is an idea whose time has not come for The Bahamas. We share the sentiments of Opposition Leader in Jamaica Edward Seaga that the creation of such a Court cannot be a kangaroo court that is simply established so that the death penalty can be carried out quickly. A court must exist for more than that.
There is at present no official sentiment on either political side to support a Caribbean Court of Appeal. There is, however, continued official unhappiness with the finding of the Privy Council this year that the Inter-American Court of Human Rights, one of the structures of the Organization of American States has jurisdiction to hear complaints from citizens of the Caribbean in death penalty matters, and that executions cannot be carried out so long as the petitions to those structures are extant.
THE COURT OF APPEAL
The Court of Appeal appears to have been dealing expeditiously with most applications to it. The behaviour of judges toward Counsel has improved slightly with the passing of the troika of Gonsalves-Sabola, Carey and George as Presidents of the Court of Appeal. There continues to be a concern voiced by attorneys that the Court cannot find Bahamians to sit on the Bench. The only Bahamian on the Court, of the five justices of appeal continues to be Burton Hall. This is a situation that cannot continue and must be addressed by those responsible for the nomination of judges of appeal.
THE SUPREME COURT
The Supreme Court bench is also more than ever increasingly relying on foreign jurists to man the benches. One must confess also that despite years of campaigning on this issue and the fact that there is public support for the total Bahamianization of the bench, a majority of practitioners are opposed to it. Their opposition increasingly comes as a result of what many practitioners feel is a lack of intellectual acuity in jurisprudence in the decisions of many Bahamian judges or too often the acquiescence in their decisions to the Executive. This reputation is probably undeserved but there is great currency to that thinking at the Bar today. There is a feeling that Bahamian judges do not stand up for themselves, the Bar and the Judiciary in the face of the executive.
Nevertheless, this Bahaman remains fully committed to the complete Bahamianization of the Judiciary.
In Freeport, there was limping justice because for most of the year there was only one Supreme Court justice in that city. Jeffery Lyons, an Australian, set the cat amongst the pigeons during the year when he decided that he would not hear any cases involving the Grand Bahama Port Authority on the grounds of the likelihood of the appearance of bias on his part.
The Grand Bahama Port Authority assists in the housing arrangements for Supreme Court Justices in Freeport. Lyons J, we have been informed has since altered his position and now takes the view that he will disclose to the parties the interest of the Port Authority in the case, and if the parties object he will decline to hear the case, but if not he will hear the matters.
One supposes that this is an enormous relief to the authorities who were privately furious at the decision and were threatening behind closed doors mayhem and removal because of the decision. Carrying such a decision to its logical conclusion would have meant that many cases could not have been heard in Freeport but would have had to have been transferred from Freeport in order to be heard if they involved the Grand Bahama Port Authority.
Mr. Justice Moore is moving from Nassau to Freeport to become the second judge in Grand Bahama. Moore J will join Lyons J on 15 January.
There is also some back channel talk about the creation of a Supreme Court in Marsh Harbour, Abaco.
The Supreme Court did not get its own separate budget in the annual allocations by Parliament, and the Chief Justice still has to go to the public treasury for the use of funds. This should be changed so that the Supreme Court becomes independent of the treasury allocation system that often leads to great delays in the work of Supreme Court being done.
During the year, there were several acting appointments to the bench. There was an English trust judge brought in for a short time. There were also three Bahamian judges who acted, two of whom continue to act. Jon Isaacs, formerly Chief Magistrate is now acting and so is Vera Watkins, formerly of Magistrates Court Number 3 in Nassau Street. Their appointments are for a year.
My colleague Jeannie Thompson at the private bar also acted for three months beginning in September 2000 and ending November. All of us should be grateful for the assistance that she lent the Court during those three months.
We again speak to the issue of the physical state of the courts. During the year, there was substantial painting done to the main Supreme Court Building and a new carpets were installed throughout, but for a substantial part of the year, the air conditioning was not working in the Supreme Court, making it difficult for the Courts to function.
NEW SUPREME COURT PRACTICE DIRECTIONS
The practitioners on the civil and criminal side continued to be concerned about the question of delay. A number of measures were taken to increase the flow of cases on the civil side and to lessen the delay between the time a case is charged in the criminal courts and the time of trail.
Unfortunately, persons are still waiting up to four years for criminal trials to take place in the Supreme Court.
Further, the measures put in place by the Chief Justice to improve the case flow were uneven in their application and in their effects. They often were so bureaucratic that they became a more tangled weave than the one it was meant to unravel. The more sensible practice direction was the one that created a Judge to hear quick chamber applications at short notice. The other practice direction about the setting down of cases needs to be revisited because it has created more problems that it has solved.
Further, it seemed most unusual for a practice direction to be issued that reminded Magistrates of what the law is. Since it would seem to logical reasoning, that if a magistrate is a magistrate then that magistrate ought to know the law. Clearly, this was a matter that should have been dealt with in a series of in-house meetings with Magistrates.
EXPLANATION ON FOREIGN VISITS
During the year, two visits were announced from Britain of leading jurists from that country. One visit was by the Lord Chief Justice Lord Woolff on the question of case flow management and legal reforms to ensure the efficiency of justice. No explanation was given as to who paid for these visits and how they came about and what was accomplished by the visits. While useful to hear what others are doing, it would seem that the reforms that are necessary are so obvious that one does not need help from the outside to see that the tasks are done.
A second visit is occurring as we speak and the same question must apply to this visit by Lord Millett as we asked in the first visit.
THE MAGISTRATES COURT
Once again the Magistrates Court is where the nuts and bolts of Bahamian justice can be found. Most drug cases are settled there, and during the year Parliament gave Magistrates increased powers. Since these courts more often than not tend to be executive oriented in their decision-making, it begs the question of a need for a training school for all Magistrates and Judges of the Supreme Court before their appointments.
This should help in the sensitivity and judicial temperament and rehearse the procedures in Magistrates Courts. Further, we must sensitize the court to the views of advocates about how their courts are run.
On the civil side, the Magistrates should now have an increase in their jurisdiction from $5000, the present limit, to $10,000. This would be more in line with the present economic realities. Ten thousand dollars is still a small claim in todays market.
There is a new Magistrate brought in from Trinidad to replace Vera Watkins in Court Number 3 in Nassau Street. This is the third foreign Magistrate. She joins Crawford McKee, a Scottish Magistrate who is in Court 13 who is soon to be transferred interestingly enough to Marsh Harbour, Abaco. The other is Corlita Bethel who continues to man the drug court and is now the Acting Chief Magistrate.
SECURITY CONCERNS OF MAGISTRATES
As the war on drugs heats up, and as more and more revenue flows throughout the Magistrates Courts, magistrates and their staffs are increasingly concerned about security at the Courts. The security is inadequate and slack. There needs to be attention paid to the question of security of magistrates.
On the whole, however, we wish to thank Magistrates, especially those long suffering souls who man the domestic courts for their assistance in dispensing justice during the year in difficult circumstances. Our pledge is that in another forum should the country provide the opportunity within the next year, to work for an improvement in the terms and conditions of Magistrates.
THE LABOUR TRIBUNALS
Throughout the year The Bahamas Industrial Tribunal continued to do its work efficiently and well. At the end of the year, however practitioners were concerned about some strange rulings in one of the Courts that seemed to fly in the face of normal judicial practice. Some litigants were complaining that decisions were not being given in a judicial manner, and were leading to unnecessary appeals. Some also argued that they were not being given a chance to be heard. We thank President Harry Lockhart and Vice Presidents Nathaniel Dean and Kelphine Cunningham for their work during the year.
Mrs. Kelphine Cunningham served during the year for half a year in Freeport as a Vice President of the Tribunal and she moved cases expeditiously. She returned to Nassau at the end of the year and the court was unmanned. Fortunately, she has been persuaded to return to Freeport for another six months. This will avoid a serious backlog of cases in Grand Bahama.
The Industrial Tribunal, however, is widely accepted by the Unions as a useful body to resolve disputes. There was some unhappiness about the ruling of the Court of Appeal during the year about the lack of authority or power of the Tribunal to conclude bargaining agreements where parties are being deliberately recalcitrant. This ruling arose out of a case appealed by the Government. And in one of the ironies of public policy we have the Government appealing rulings of a Tribunal that it said that it would respect. The Government has been the main offender in taking technical objections to preventing decisions of the Tribunal to be enforced.
The case of Phiora Clarke is a judgement of the Tribunal that remains un-enforced and perhaps unenforceable because the Hotel Corporation simply refuses to pay the judgement of the Tribunal.
The Unions are also unhappy about the lack of enforceability of the court's rulings. Further, it appears that employers often abuse the system by filing plainly hopeless appeals in the hope that it frustrates employees who do not have the money to pursue a protracted appeal. There is therefore a need for reform of the Tribunals and reform was promised. However, no one was quite prepared for, nor had the Unions or the employers asked for the replacement of the Court in a comprehensive set of legislative proposals put forward by the Government and now before Parliament. The future of the Court and its status and jurisdiction were therefore put in doubt by these actions of Parliament and the Cabinet during the year.
One must also point out that the physical plant of the Tribunal is nothing short of disgraceful. There is a need to cause substantial repairs in the facilities in Nassau, and a major redesign of the facilities of the court. They are inadequate and tend to show contempt for the Tribunal, its work and the people that it serves.
THE BAR ASSOCIATION
The Bar held a number of seminars and social events that were useful for practitioners. The difficulty remains, however, that a major allegation was made against attorneys by the Prime Minister. During debate in Parliament on the recent package of drug and financial bills, the Prime Minister was asked whether or not he had consulted with the sectors that were to be regulated. He made an allegation that lawyers were crooks. No word from the Bar has been heard defending the profession.
ATTORNEY GENERALS OFFICE
The U.S. government made an unprecedented assault through its embassy on the A.G.s office. That Government was concerned about the slow pace of mutual legal assistance requests on drug matters and money laundering. The U.S. Ambassador made unsubstantiated allegations of the corruption of juries in The Bahamas. The Government did nothing to defend the judiciary or the lawyers in the office of the A.G. The complaint about the requests, however, exposes the continued complaint that the staffing of the A.G.s office is not adequate to the task. Pay and working conditions have affected morale. There have been several resignations. The criticism is that the Attorney General herself does not spend enough time and give sufficient effort to her work at the office. This is an office that will have a critical role to play with the new legislation in the area of drugs and money laundering that was passed by Parliament in December.
A FINAL WORD ON THE COURTS
The media was greatly exercised about events on 29 November 2000. On that day, thousands of teachers withdrew their labour and appeared at the Coroners Court to show solidarity with their friend and sister Rosalyn Astwood who ultimately faced a charge of manslaughter. The media condemned the teachers for their actions on the ground that the action seemed calculated to influence the Court. While that was not the intention of the teachers, it begs the question so what if it were true. And I say in this regard my personal view, which is that this country is a democracy. We believe in freedom of expression, and there is nothing wrong with trying to influence any of our democratic institutions including the courts. I again remind the press of their responsibility in this regard. The Courts must be accountable to the public. They are not sacrosanct, and as Lord Denning said "justice is not a cloistered virtue."
We have seen both in the United Kingdom and in the U.S. how demonstrations are routinely held when Courts are making important decisions. There is nothing wrong with that. The public should have their say. Just as judges will have their say, ultimately every decision of the Courts must stand the test of public opinion and acceptance.
We trust that all of us will continue to remember that a vigorous democracy requires the participation of its citizens in the process. The teachers therefore did nothing wrong at all.
And now I wish to do our traditional sherry toast to justice and the judicial year.
Thank you very much indeed.