The Tribune

A REQUEST for Justice Rhonda Bain to recuse herself from certain cases – one of which involves the Prime Minister - coupled with her application to have her nearing retirement date extended for another two years, comes within the same time frame as government’s attempt to pass the Interception of Communications Bill, 2017. These clashing interests have now started a conversation — a conversation questioning the extent of the judiciary’s independence from that of the executive.

The proposed Interception of Communications Bill provides for the improvement of technical devices for the better tracking of criminals and “in the interest of national security.” It assures Bahamians that permission for surveillance of our privacy without our knowledge can only be given by a Supreme Court judge with no possibility of political interference from government.

Attorney-General Allyson Maynard Gibson has described the proposed Bill as a “very important tool in the fight against crime, much of which is gang related, transnational and involving guns and drugs. Experts,” she said, “advise that without this crime fighting tool, drug trafficking, gun trafficking and other transnational and gang related crimes will increase and the police will be hampered in their ability to detect and investigate these crimes and prosecute the criminals.”

This Communications Bill, she said, “will enable the Police, with the permission of a Supreme Court Judge, to lawfully intercept electronic communication of any kind, once certain clearly defined conditions are fulfilled.”

The Bill, she said, “enhances protection of the privacy of law-abiding citizens because it is the Supreme Court (not the Executive) that makes the determination that the communications may be intercepted. This is the first time that Bahamian law places this authority solely in the hands of the independent judiciary. The Supreme Court will ensure that adequate checks and balances are in place to protect the rights of privacy on the one hand and combat crime (including cyber crime) on the other.” Any suggestion that this is a “dangerous spying Bill” is false,” she said.

Among those arguing against the rushed enactment of this Bill without public participation, is Fred Smith , QC, who has pointed out that the Bill gives police officers warrants to “secretly” enter homes and businesses to seize communications and install interception devices within them.

“Right now,” he said, “when the police execute a search warrant, you have to be present at your home but Section 8 of this bill provides for an entry warrant and with that they can gain access to your possessions, and your home to secretly get your postal articles, to install and to maintain an interception device or to go in and maintain an interception device when you aren’t there.”

Government is relying on convincing Bahamians that their privacy will be safe because the investigative permission given under the Act will be under the independent supervision of a Supreme Court judge.

However, how independent can the judges be from the executive when one considers the case of Justice Rhonda Bain? That is the question now being asked by many Bahamians.

On February 9 the Cabinet Office confirmed that Chief Justice Sir Hartman Longley had reached the age of retirement, but that the Governor General, acting on the advice of the prime minister, after consultation with the leader of the Opposition, had extended his term for another two years.

We knew nothing about Justice Rhonda Bain’s nearing retirement date until Sir Hartman announced it at the opening of the New Year Assizes. He said that his term expired in February and Justice Rhonda Bain’s in April. He also informed the public that she too had applied for an extension. Justice Roger Gomez also retired on January 25, having had no problem with getting government’s executive branch to give him a two-month extension from last November. But there has been no word on Justice Bain. The hovering question is: Why?

In January lawyers for Prime Minister Perry Christie — one of three persons responsible for whether Justice Bain’s application for extended tenure be granted — filed a motion in the Supreme Court asking that Justice Bain recuse herself from hearing an ongoing judicial review into allegations that Lyford Cay resident Peter Nygard illegally increased the size of his property.

The motion was filed on behalf of Mr Christie in his capacity as minister responsible for Crown land. It was argued that while Justice Bain awaited an approval of her application to extend her tenure as a Supreme Court judge, she could not be perceived to be impartial in hearing an ongoing judicial review into the Nygard case. They demanded that she recuse herself.

Justice Bain found “no merit” in the Prime Minister’s argument and dismissed it.

In a 40-page ruling, she reminded the Prime Minister of the independence of the judiciary from the executive, stressing that cases are distributed by the Chief Justice - a role that cannot be “usurped by the Prime Minister”.

The Court of Appeal supported her position. Our judges deserve great

credit for standing strong against the executive’s attempt to trespass on their territory.

However, such an attempt does not encourage Bahamians to believe the Attorney General’s assurance that permission for surveillance of our privacy without our knowledge can only be given by a Supreme Court judge with no possibility of political interference from government.

Such words ring hollow in view of the seeming unfair advantage being taken of a capable, principled judge, who like the other judges, deserves the extension of her term of office. Certainly the Bench needs her talents.

If this can be done to a judge of this standing, what chance has an ordinary Bahamian to protect themselves from government intrusion should it decide to side-step a judge?

It would seem that the decision for her ouster has been made, because, as far as we understand the Prime Minister has not approached Opposition Leader Loretta Butler-Turner for consultation on Justice Bain’s request.

According to the constitution “if a Justice wishes to extend his/her tenure, the Governor General, acting on the advice of the Prime Minister after consultation with the Leader of the Opposition, may grant leave to do so up to, but not exceeding 67 years, which is the mandatory age of retirement.”