Glinton v Registrar of the Bahamas Court of Appeal and Attorney-general

• Jurisdiction: Bahamas
• Judge: Adderley, J.
• Judgment Date: 05 September 2012
• Court: Supreme Court (Bahamas)
• Docket Number: PUB-CON 45 of 2009
• Date: 05 September 2012

Supreme Court

Adderley, J.

PUB-CON 45 of 2009

Glinton

and

Registrar of the Bahamas Court of Appeal and Attorney-general

Appearances:

Mr Maurice Glinton pro se

Mr Loren Klein; Mr Darren Henfield with him for respondents

Constitutional Law - Interpretation — Whether there was a presumption that Justices of the Supreme Court and Court of Appeal must be Bahamian — Doctrine of indivisibility of the Crown.

Adderley, J.

1 By an Originating Notice of Motion filed 19 October 2009 the applicant sought the following relief pursuant to Art 28 of the Constitution, namely:–

• “1. A declaration that only such justices not being aliens as signified by law, capable of taking or subscribing the oath of allegiance, may lawfully enter upon the duties of the office of Justice of the Court of Appeal eligible to duly constitute the Court as prescribed by Section 7 of The Court of Appeal Act (“The Court Act”).

• 2. A declaration that taking the oath of allegiance by a Justice of Appeal who being an alien has not effectively renounced his citizenship of the country of his allegiance is for purposes of Act. 103 of the Constitution neither strict or sufficient compliance therewith, and inimical to a judicial oath they also subscribed therewith.”

2 The applicant sought consequential declarations that the Court comprised of such justices is not a court for the purposes of Article 20(8) of the Constitution or as prescribed by Article 98 of the Constitution and such a panel of these judges any of whom is not a citizen of the Bahamas does not have the jurisdiction powers and authority prescribed by section 7 of the Court Act.

3 He sought an order of prohibition against The Registrar of the Court of Appeal and an Order staying proceedings in Appeal SCCivApp & CAIS No. 2/2009 ( Glinton v. Peaches Ltd. [2009] 3 BHS J. No.100) an Appeal then before The Court of Appeal from Gray-Evans, J.

4 The interlocutory application was heard by Sir Michael Barnett, C.J., on 28 October 2009. In a written ruling the Chief Justice held that the hierarchy of the courts prohibits a judge of the Supreme Court from making an Order directed at The Court of Appeal in the exercise of its appellate jurisdiction. If such an Order was made the Supreme Court had no penal powers to enforce it against an officer of the Court and equity does not act in vain.

5 Although declining to decide on the merits the learned Chief Justice expressed the view that the applicant could seek relief in The Court of Appeal itself on the merits as The Court of Appeal itself is competent to decide whether it is constitutionally constituted or whether it has jurisdiction to hear a matter. That view is supported by the Privy Council in Bowe v. The Queen (PC) [2006] UK PC which had occasion to interpret Article 28 (3) of the Constitution. The head note of Bowe states:–

“The Court of Appeal had erred in construing article 28 of the Constitution as precluding it from entertaining a challenge to the constitutionality of a sentencing provision on an appeal against sentence in criminal proceedings and requiring redress to be sought in a separate application to the Supreme Court; that article 28(1) made it plain that the right of application to the Supreme Court was not provided as a unique or exclusive procedure; that the provision in article 28(3) for reference to the Supreme Court applied only where the question arose in proceedings in any court “other than the Supreme Court or the Court of Appeal”; that the inescapable inference was that, if the question arose in proceedings in one or other of those courts, it should be resolved in that court in those proceedings; that the Court of Appeal had jurisdiction to entertain the appeals; and that the Board also had jurisdiction to entertain the constitutional challenge to the mandatory sentence and to remit the case to the Court of Appeal (post, paras 10-12)”

6 In addition to the Supreme Court not being the proper court, on 29 October 2009 the Court of Appeal allowed his appeal (Glinton v. Peaches Ltd) and made the following Order:–

“We remit the matter to The Supreme Court to be heard de novo and if there is another judge in Freeport, before another judge.”

7 With this Order the applicant's interest necessary to establish standing to seek declarations pertaining to breach of his rights under Article 20 (8) fell away (as to the interest required see e.g. The Bahamas Telecommunication and Public Officers Union et al v. The Bahamas Telecommunication Corporation et al [2011] 1 BHS J No 22 and SC Civ App & CAIS No 21 of 2011.

8 Although for the above reasons I am constrained to dismiss the application of the applicant I will nevertheless decide the case on the merits because at the onset I ordered that this case be heard together with Higgs and Higgs v. Hon. Christopher Blackman and Hon. Stanley John and the Attorney General of the Bahamas 2011 Pub-Con/00002 and counsel for Higgs adopted the arguments of Mr Glinton and added some of his own. The decision in this case should therefore be read in conjunction with the decision in HIGGS which is being delivered at the same time.

9 As I understand it, the applicant relies on the following grounds:–

• (i) Under common law, as declared by statute and subsequently constitutionalized, only citizens of the State/King/Sovereign could effectually swear an oath of allegiance;

• (ii) The Declaratory Act of 1799, being an existing law, was saved for the purposes of the 1973 Constitution under s.4 of the Bahamas Independence Order 1973;

• (iii) That Parliament having only prescribed for the taking of the oath by persons as a condition to becoming citizens by registration or naturalization under s.5 & 9 of the Bahamas Nationality Act, which took effect from 1973, the common law remained unaltered;

• (iv) That therefore Justices of Appeal and of the Supreme Court who are not Bahamian citizens are incapable of effectually subscribing the oaths required by arts. 97 and 103 respectively of the Constitution so as to lawfully enter upon the duties of their office. “Effectually” means to have meaning and effect both in terms of function and purpose.

10 The issue has been pending for some time. In Supreme Court Action 2004/Pub-Con/00003 Hawthorne Sterling Financial Consultants & Publishers et al v. Carl W. Bethel (in his capacity of designated competent authority) et al Mr Glinton on behalf of the applicants in that case on 9 September 2005 filed a summons for an Order staying further proceedings in the action set to be heard before Small, J. as he then was, who was non-Bahamian. The various grounds of his application included apprehension of bias and self interest arising out of a pending action by Mr Glinton questioning the constitutionality of the appointment of non-nationals to the Supreme Court. Small, J. noted in his decision rendered 24 January 2006 that Mr Glinton had placed his views on the record of the court in an action filed in January 2001 in a personal action against The Prime Minister, Leader of the Opposition and Attorney General that challenged the appointment of the Right Honourable Edward Zacca and Mr Justice Maurice Churaman as president and Justice of the Court of Appeal and in December 2004 by an Originating Notice of Motion in 2004/PUB-CON/00032 in relation to Mr Justice Farzool Mohammed. Small, J. did not consider Hawthorne an appropriate case from which to recuse himself but made the following observations at para 4 of his ruling

“Despite the grave constitutional implications of these legal actions, they have remained untried and remain on the records of this court”,

• and at paragraph 14:–

• “14. There is another aspect of this matter that gives me concern. Is it proper that the actions that have been filed questioning the appointments of the former President of the Court of Appeal Mr. Justice Zacca, the former Justice of appeal Mr. Justice Churaman and Mr. Justice Mohammed of the Supreme Court should remain dormant on the files of the Court? The judges of superior courts have a shared duty to uphold the dignity of the courts and ensure that public confidence in the administration of justice is sustained. I [sic] seems to me that the appropriate parties should take steps to bring on the actions filed by Mr. Glinton for hearing or otherwise see to their timely disposition.”

THE APPLICANT'S CASE

JUDICIAL NOTICE

11 The applicant has asked the court to view the application against a historical background that can be judicially noticed. In so far as it is relevant, from 1965 when the Court of Appeal was established for The Bahama Islands until 1973 persons appointed to the offices of Justices of the Supreme Court and Court of Appeal have always been citizens of States other than The Bahamas and up until 1995 persons appointed as President of the Court of Appeal were also non Bahamians. There are currently two non-Bahamian out of 12 Justices of the Supreme Court and except for the President the other three Justices of the Court of Appeal are not Bahamian citizens. All are citizens from commonwealth countries: from Barbados, Trinidad and Tobago, and Sierra Leone in the Court of Appeal, and from Jamaica and St Lucia in the Supreme Court. By contrast, according to the applicant courts in the other Independent States of the Caribbean and the North Atlantic region are manned by nationals of those States.

12 He also drew attention to the basic principles on the Independence of the Judiciary adopted by the Seventh United Nations Congress on the Prevention of Crime and treatment of Offenders to point out its formulation made to assist Member States in their task of securing and promoting the independence of the judiciary. It reads:–

• “10. Persons selected for judicial office shall be individuals of appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial...