The Tribune

By FREDERICK SMITH, QC

JUDICIAL independence is the cornerstone of a democracy. Without it, those who hold political power can victimise and oppress with impunity.

There is a reason why independent courts and judges are always among the first targets of totalitarian regimes like Nazi Germany and Soviet Russia. Closer to home, it is no coincidence that in the absence of an independent judiciary, the Haitian dictator François “Papa Doc” Duvalier was able to inflict unspeakable crimes for years.

Yes, the courts exist to prosecute criminals and settle civil disputes. But a fundamental role is to serve as a check on official power and ensure no one – especially not the Executive Branch of government – is above the law. A criminal may harm one victim. But a rogue government can threaten all of us with oppression, deprivation of fundamental rights, state-sponsored terror and violence.

The evils of colonialism notwithstanding, Britain gifted The Bahamas with the constitutional separation of powers with an independent judiciary. It has served us well over the years, playing a key role in protecting against the descent into the political violence that has plagued so many other countries in the post-Colonial era. Unfortunately, almost from the start, post-Independence Bahamian governments have both intentionally and unintentionally undermined this invaluable benefaction.

Case in point is the tragic saga of D’Arcy Ryan, a Canadian-born British subject, married to a Bahamian, who had been living in The Bahamas for 30 years, a “Belonger” under the Constitution. Following independence in 1974, he applied to the PLP government for citizenship but was arbitrarily denied.

Turning to the judiciary, Ryan was vindicated at every level – by the Supreme Court, Court of Appeal and Privy Council, all ruling he be granted citizenship in accordance with the Constitution. However, the Pindling administration, which fought him every step of the way, stubbornly and illegally refused to comply.

Eventually, Ryan’s lawyer – none other than the FNM’s founding father Sir Cecil Wallace-Whitfield – applied to have Minister of Home Affairs, Sir Clement Maynard, held in contempt of court. Supreme Court Justice Charles Graham-Perkins ordered Sir Clement committed to prison for the PLP’s obduracy. He was saved from Fox Hill by a Saturday stay by the Court of Appeal. Thereafter, Justice Graham-Perkins was eventually hounded into retirement and out of The Bahamas.

In 1993, under the Hubert Ingraham FNM government, Justice of Appeal Ira Rowe, was denied entry into The Bahamas by then Justice Minister Janet Bostwick, blocking his hearing of a landmark death penalty case. This giant of 20th century Caribbean jurisprudence, who also served as President of the Court of Appeal in Jamaica and Belize, on the Court of Appeal for Grand Cayman and the Turks and Caicos, and as the Jamaican Solicitor General, resigned. He explained that he had no choice, as The Bahamas government was interfering with his work.

In 2009, outspoken Australian Justice John Lyons was forced into retirement after he issued a string of rulings criticising the overreach of successive PLP and FNM governments. These included a 2006 decision in which he scolded ministers for trampling on the separation of powers by presuming to rate judges’ performance. “The Judiciary is not an agency of government,” he said. “It is an independent body established under the Constitution. The role of a judge is to ensure a fair trial; fair to the prosecution and fair to the defence, as mandated by the Constitution. A judge is never to be judged by a ‘conviction rate’.”

Justice Lyons added: “The independence of the Judiciary is the pillar upon which our Constitutional freedoms are built. Judicial independence is at the heart of practically every UN charter on human rights.” Quite so.

Justice Lyons also ruled the PLP government had violated the law by failing to appoint a committee to review and update judge’s salaries, a provision specifically designed to protect the livelihood of members of the judiciary, and thereby their independence, from undue political interference and control.

Meanwhile, a 2014 ruling by Justice Stephen Isaacs [later Chief Justice] shutting down the illegal Blackbeard’s Cay Dolphin development continues to be ignored by PLP and FNM governments. Until COVID, it still operated in open defiance of the Supreme Court judgment.

And then there was the intimidation of Justice Indra Charles and her family by former PLP MP Keod Smith and others in 2016. Despite evidence that Smith travelled to St. Lucia to dig for private information on the judge’s past and had also taken steps to locate and harass her young son, no action was taken to investigate the matter by the then-PLP government or by Attorney General Allyson Maynard-Gibson – daughter of the very same Sir Clement Maynard of D’Arcy Ryan fame. The perpetrators walked away scot free and a resounding message was sent to the public: attempts to intimidate judges do not carry consequences in The Bahamas.

Today, the target of government ire is Supreme Court Justice Cheryl Grant-Thompson, who last week issued a simple ruling maintaining the status quo preventing any further home demolitions in Abaco until the conclusion of the nearly completed Judicial Review trial.

Deputy Prime Minister Desmond Bannister led the assault, calling the judge’s ruling “silly”, “nonsense” and “not worth the paper it is written on”. He went on to accuse the judge of seeking to tie the hands and usurp the statutory powers of Building Control Officers, which he preposterously and provokingly claimed would make it “open season” for illegal construction across the country.

While it may not seem as extreme as harassing judges into retirement, refusing a judge entry into the country, or targeting their family, this kind of public attack on a judge, denigration of a court ruling, and downright political incitement to panic are extraordinarily dangerous in this age of social media and hyper-connectedness.

Particularly when the subject of the ruling is so controversial and emotive, politicians like Mr Bannister risk provoking hostility, aggression and even threats of violence against judges, either by the governing party’s supporters or simply members of the public at large who are easily wound up into a state of xenophobic frenzy over certain issues.

No sooner had Mr Bannister spoken than Bahamian social media took its cue. A barrage of online attacks upon the judge ensued accusing her of political bias, attacking her patriotism and even her nationality questioned. In a sad parody of what former US President Barack Obama was forced to endure by racist elements in his own country, Bahamians even demanded to see the judge’s birth certificate.

It is ironic that Mr Bannister used the phrase “open season” in his assault on Justice Grant-Thompson’s ruling, as this is precisely what appears to have been happening, in particular to female judges who have become by far the main targets of scandalous attacks by online political trolls of both the FNM and PLP. Over the past few years, female judges have been wrongfully accused of taking bribes, of unlawfully refusing to retire and of acquitting defendants for political motives, all in the total absence of evidence and often under the cowardly cloak of anonymity. Among those savaged have been Judges Rhonda Bain and Ruth Bowe-Darville.

Such shockingly irresponsible tactics are disappointing coming from the FNM, [originally the “Free PLP”] a party morphing out of the PLP precisely to protect the rule of law from the increasingly dictatorial behaviour of the Pindling regime in the 1970s. The founding father, Sir Cecil Wallace-Whitfield, must be turning in his grave over this shameful assault on justice. He was always a lawyer first and politician second!

Minister Bannister understands the importance of an independent judiciary; he is an experienced attorney who knows better. The irrational mind-fog and political fever of election season are no excuse!

In any delicate social or political atmosphere, even mildly disparaging comments by powerful leaders can serve as tacit permission and unspoken approval for far more extreme and aggressive expressions of hostility. Advances in communication technology amplify and intensify this effect exponentially.

Take for example the unspeakable crimes against humanity in Rwanda in the 1990s, where comments by politicians were relentlessly spun-up and intensified by partisan radio hosts, unleashing a bloodthirsty, genocidal mania among the public. More recently, this dynamic was also at work in the “fake news social” media onslaught which resulted in the unprecedented attack on the United States Capitol in January 2020.

Now more than ever, when every cell phone is a potential broadcaster, every laptop a possible amplifier of hate and aggression, politicians must realise the power and the reach of their words. They must act responsibly, be very careful in what they say, and appreciate the profound consequences that can flow from their behaviour.

A line in the sand must be drawn now. If this disturbing trend continues, the results will be disastrous for us. Judges who are made to feel intimidated and under siege by powerful politicians and angry digital mobs are not operating in a protected, independent and unfettered atmosphere, no matter how courageous and dedicated they may remain in the execution of their duties.

Such undue stress, duress and pressure would threaten to undermine the performance of any professional. And justice must not only be done, it must be seen to be done as well.

Respected Courts are the ultimate symbol, final bastion and fundamental guardians of human rights and rule of law.

Shortsighted, narrow-minded politicians imperil us all by toying with the Judiciary irresponsibly and scandalously.