The Tribune

By AVA TURNQUEST

Tribune Chief Reporter

aturnquest@tribunemedia.net

INCENSED over protracted delay in the appointment of a substantive chief justice, the Bahamas Bar Association yesterday suggested the constant undermining of democracy has pushed the country to an existential and constitutional crisis.

In an article titled “Our Judiciary Must Be Unfettered,” BBA President Khalil Parker details a longstanding “insidious process” underpinned by sweeping abuses of power by the government, a sleeping legislature, and what he defined as “slow and steady” attempts to create a compromised and impotent judiciary.

Mr Parker characterised the delay as an assault on the rule of law that threatens to corrode the entire system of government, and called for those “charged with civic responsibility” to stand up for the preservation of rights and freedoms enshrined in the country’s Constitution.

“Delay in the appointment of the chief justice is corrosive of one branch and possibly the whole system of Government,” Mr Parker wrote.

“After every general election, we set about the business of ensuring the appointment of a prime minister with alacrity. We also set about appointing a Speaker of the House of Assembly with all convenient speed and no less enthusiasm. Are we to be content to await executive pleasure regarding the appointment of the head of our judiciary?

“While not the first affront suffered by the judiciary in our country as a result of what many regard as executive overreach, it constitutes the high-water mark in the gradual undermining of the third, and for the average citizen, resident, or visitor, the most fundamental branch of our government. Without a fearless, independent, and impartial judiciary, the “lock box” which contains our constitutional, statutory, and human rights is left unguarded.”

Stephen Isaacs was sworn in as acting chief justice last December.

In his article, Mr Parker acknowledged the prime minister has constitutional discretion on the appointment, but noted the discretion is not unfettered. He noted “practical and political expedience” did not give a blanket approval for a drawn out and potentially harmful delay.

This is the second public statement released by the legal body on this issue, and follows a small protest planned by a senior magistrate last month.

Senior Magistrate Derence Rolle Davis had urged his colleagues to meet at the Supreme Court, abandoning their schedules for the day to show solidarity against the “ongoing disregard for justice, fairness and integrity.”

Magistrate Rolle-Davis was joined by a handful of attorneys as well as another magistrate in protest.

Mr Parker stressed a constitutional democracy was not an esoteric or abstract concept, yet Bahamians are again confronting a tragic constitutional narrative of “three broken constitutional branches of government.” He underscored the need for constant vigilance against the “lowering of the image and importance of the judiciary in the eyes of the public which it serves.”

“Over the years the undermining of our democracy has been an insidious process,” the article read.

“It involved, at the very least, a three-pronged approach: a) callous and sweeping abuses of power by the executive against which we have continuously railed as a people; b) a legislature asleep at the wheel while democratic institutions and statutory bulwarks against abuses of power crumble; and c) slow and steady attempts to create a tame, compromised, and impotent judiciary.”

Critics say so long as an acting chief justice exists without a substantive officeholder, it raises questions about the independence and impartiality of the judiciary.

It can create the appearance that eligible candidates have to audition for the top role.

Last year, the president of the Caribbean Court of Justice, Sir Dennis Byron, criticised Guyana’s history of filling top positions in the judiciary with people in “acting” roles, arguing such circumstances are beyond “what ought to be acceptable in a modern democracy where respect for the rule of law is maintained.”

Mr Parker’s article continued: “The inexplicable and indeterminate delay in the appointment of the chief justice can be seen as having placed the country in an existential and constitutional crisis.

“The preservation of our collective rights and freedoms is guaranteed only by an abiding respect for the rule of law. This unprecedented and calculated assault on the rule of law renders such guarantees moot.”