The Tribune

EDITOR, The Tribune

When a distinguished retired high court judge like Jeanne Thompson talks, political and civic leaders should stop beating up their gums and take notice. Justice Thompson again rang a bell over the delay by the Prime Minister in recommending a nominee for the post of Chief Justice.

This is the second time that the Prime Minister seems to be dragging his feet in the matter of recommending someone for the substantive post of Chief Justice.

There are in our Constitution and laws cases in which public servants are required to carry out certain functions in accordance with a specific timeline, such as arrangements for elections.

There are many other mandates that are not tied to a specific timeline but which public servants are expected to carry out in a reasonable time. Failure to do so may expose a negligent public servant to judicial intervention at the instance of a concerned citizen.

The Constitution says only that the Prime Minister must consult with the Leader of the Opposition before making a recommendation to the Governor General of who she should appoint as Chief Justice.

The founding fathers mandated in Article 95.1 of the Constitution that should the post of Chief Justice become vacant then the Governor General appoints an Acting Chief Justice on the advice of the Prime Minister.

Interestingly, while the nomenclature used at 95.1 is “appoint”, in the very next paragraph in the version of the Constitution on the Bahamas Government website -- 95.2 -- it mysteriously refers to a sitting Justice of the Supreme Court being “anointed” to act as Chief Justice. That version of the Constitution needs to be taken down and the proper version posted.

While some who have served on the bench may have assumed that their judgeship was due to divine intervention, the Governor General has only secular powers in our Constitution.

But still a faux tempest in a teacup persists with whispers of how the Prime Minister may be stoking a constitutional crisis by not quickly appointing a permanent Chief Justice. Nonsense.

The law fraternity knows better than most the challenges we face because of the shackles placed on the Prime Minister by the retirement age ring fence thrown up by the Constitution.

Since independence we have had 12 Chief Justices at the Supreme Court. Five of them have been non-Bahamians hailing from Jamaica (Vivian Blake and Harvey Lloyd da Costa), Guyana (Joaquim Sabola), Dominica (Telford Georges) and Britain (James Alfred Smith). The list of non-Bahamians on the Appeals Court is even longer still.

By way of comparison our friends in Canada have had only 18 Chief Justices in the past 144 years. And their CJ can stay on the bench until they reach the age of 75.

Surely there is no need for us to import a Chief Justice. Our problem is that the Constitution mandates a retirement age of 65 for Chief Justice (with the possibility for a two-year extension). Many of our experienced lawyers, thoroughly sprightly of body and nimble of mind, have to be ruled out of consideration because they are close to retirement age and could serve only briefly if appointed.

It is appalling that the judges who adjudicate matters in our courts must retire at an earlier age than the jurists who will review their decisions if their matters are ever sent on appeal to our final court, the Privy Council in the UK. Judges there retire at 70.

It is no secret that we are living longer, healthier lives than 50 years ago. We have retired justices today who are lucid of mind and who could be hearing cases and helping clear court backlogs, if only we would find the will to amend the Constitution to allow them to retire later. To his credit, Hubert Ingraham tried but was rebuffed by antsy referendum voters.

The salary we pay the Chief Justice is a pittance when compared to those in private practice. While that must be fixed, it would also be advisable to appoint younger lawyers who could serve on the high court for longer periods.

John Roberts was 50 when he was given a lifetime appointment as Chief Justice of the US Supreme Court in 2005.

We need to look more broadly at our antiquated laws which tie the hands of both Prime Minister and Governor General.

And when next the PM is in Long Island, he should seek advice on procrastination. Long Islanders know: “If you think long you think wrong.”

THE GRADUATE

Nassau

January 25, 2019