Moss v Bahama Reef Condominium Association et Al

CourtSupreme Court (Bahamas)
JudgeLyons, J.
Judgment Date06 November 2006
Docket NumberFP/336 of 2001
Date06 November 2006

Supreme Court

Lyons, J.

FP/336 of 2001

Bahama Reef Condominium Association et al

Mr. Harvey Tynes, Q.C. with Mr. C. Sam for plaintiff

Ms. Lockhart Charles with Ms. Cordell Frazer for defendant

Mr. Calvin Seymour for the interested party

Constitutional law - Fundamental rights and freedoms — Section 20 of the Constitution — Right to have a trial conducted by an independent tribunal — Judiciary — Independence of judiciary — Whether the independence of the judiciary was affected by the government's non-compliance with Section 4 of the Judges' Remuneration and Pensions Act — Independent salary review was not conducted — Judiciary could no longer be said to be independent — Constitutional amendment required — Matter adjourned sine die.

Lyons, J.

I fear I have a difficult task, but l must face it the best I can.


In the matter in which I delivered my decision earlier today, I concluded by ordering all the cases to be returned to the Criminal Registry. I went on to say,” to be brought on when they are ready for a fair trial by an impartial and independent tribunal as our Constitution guarantees. This does not mean a trial weighted in favour of the prosecution, (prepared to the disadvantage of the accused), before a tribunal entirely dependent on the will of the government for the amount of its salaries.” ( Queen v. Williams Pratt & Ors. FP/86/8/2004, FP/32/ 2/2004, FP/10/ 3/2006, FP/7/2004, FP/39/6/2006, FP/19/ 4/2006, FP/20/ 4/2006, FP/36/05/2006 and FP/56/8/2006).


I do not intend to rehearse what I said in Williams and Pratt. I have arranged for counsel to be given a copy. I have also arranged for counsel to be given a copy of an earlier decision of Stephen Neymour v. Attorney General & Ors. (CL/574/2005 – 18 May 2006).


In Neymour I held that, as a matter of law, the provisions of Sec. 4 of the Judges' Remuneration and Pensions Act (Ch. 45) – (“The Act”), were mandatory. That has not been reversed on appeal. I must, as a matter of judicial ethics, accept it as correct law until either reversed or until I, for good reason, conclude that I was in error.


I concluded, also, that s. 4 was enacted as, and thus became, an essential element of protecting the independence of judges or, in sum, the Judiciary.


In Williams and Pratt, I conclude that the Cabinet, broke the law by neglecting or refusing (it matters not which) to nominate intended Commissioners to the Governor General for the appointment under sec. 4 within the mandatory prescribed time. This I suggested has stripped the Judiciary of a right essential to its independence. I conclude that, thereby. Cabinet has plunged the nation into a constitutional crisis.


Whilst preparing for this case, I came to see what I now believe to be the consequences of Cabinet's action on any cases heard by me after the 1 October 2006.


Our Constitution guarantees a fair hearing by an independent tribunal (e.g.: Art 20(1)).


A judge swears an oath under the Constitution. In my case Article 97. Implicit in that oath is that the Judge will abide by the Constitution, our supreme law (Art 2).


Prior to 2000, the amount of judges’ salaries was at the will of government (or at whatever preceded the sec. 4). That was the accepted standard. After 2000, that no longer became the case. Thereafter the amount of judges’ salaries was decided by an independent commission appointed by the Governor General after receiving nominations from the Cabinet. There is little doubt it provides for an independent commission. The mandatory inclusion of a ‘former judge’ provides a knowledgeable “watchdog”. As well Article 72(2)-(4) inclusive of the Constitution apply to prevent the Governor General simply being a rubber stamp to Cabinet's nominations. The independence of the Governor-General is preserved, so thus is the independence of the Committee. The Commission's decision (save for retrospectivity) is final.


This is now the new and currently applicable mandated standard.


I spent many hours over the weekend in my chambers and the library, grappling with this problem. I found it essential to first understand the meaning of “government” and “independence”.


As for the former, Dixon, J. (as he then was) in Burns v. Ransley [1949] A.L.R. 817 said:-

“I take the word ‘Government’ to signify the established system of political rule, the governing power of the country consisting of the executive and the legislature considered as an organised entity and independently of the persons of whom it consists from time to time.”


As for the latter, I turned to the Concise Oxford Dictionary for assistance. Independent is defined as:

“1. free from outside control; not subject to another's authority (of a country) self-governing. 2. not depending on another for livelihood or subsistence. 3. not connected with another; separate, 4. (independent) historical Congregational n. an independent person or body. – Derivatives independence n. independency n. an independently adv.”


It seems to me, that “independence” is a state of being. ‘Independence’ as a state of being can be many faceted. It can consist of many features that make up the whole.


If one of those facets or features is taken away, then the whole is no longer “independence” but something less than it.


The “something else” becomes ‘dependence’ if it has to rely on someone else's will.


In Neymour and Williams and Pratt, I say that sec. 4 is indeed essential to the independence of the Judiciary. If I am right, then (in the case of the judges), the removal of the judges' right to independence and salary review under s. 4 (by the Cabinet's failure to act timeously) completely compromises the independence of the Judiciary. The Judiciary can no longer be said to be independent.


That the Judiciary is now at the will of government as to the restoration of not only its s. 4 rights, but its very independence, is quite clear.


The independence of the Judiciary is guaranteed by the Constitution. It is the pillar of our constitutional democracy. If I am correct, in saying s. 4 is essential to the independence of the Judiciary and its having been stripped away renders the Judiciary no longer independent but something else, the solution does not lie with simple legislation. It surely does not lie with the Judiciary.


It seems to me that to restore the independence requires an amendment to the Constitution in terms similar to sec. 4, allowing for a different triannual commencing date other than 1 April but depending on the date of the referendum.


An amendment to the Constitution depends on the will of Parliament. The will of Parliament to call for a referendum of the electors (Article 54) depends on the will of the government or, to adopt Dixon, J. the will of “the established system of political rule.”


I see it this way.


The established and accepted standard (or measure or definition) of judicial independence prior to 2000 was one where the Judiciary, (it was accepted), was dependent on the will of government (or whatever preceded sec. 4) for the amount of its salaries. It was not dependent on sec. 4.


Post 2000, the new and accepted standard (or measure or definition) was broadened to include the mandatory right to a tri-annual review pursuant to sec. 4 to set the amount of judicial salaries. Take away the mandatory right (as the Cabinet did in 2003 and again in 2006 - see Williams and Pratt) the Judiciary no longer fits the accepted standard measure or definition of “independence”. If (the Judiciary) is “something else”, dependent again on the will of government, then from 2000 (when the right was exercised) until 2003, the Judiciary remained independent. From 1 October 2003 until 1 April 2006, it was not.


As the 6 month period in which the right to review resurfaced between 1 April 2006 and 1 October 2006, the Judiciary was, most likely, re-clothed with independence.


As I posit in Williams and Pratt, this re-clothing passed on 1 October 2006. The Judiciary has been stripped of its independent cloak.


I suspect this can only be fixed by constitutional amendment. Or we simply wait for 2009 when again the Judiciary is re-clothed with its right to an independent review. The Cabinet of that day sends the nominations up the hill to Government House and all is “hunky dorey”.


Except this. it may be argued that the Judiciary waived the missed review in 2003 by accepting, in consideration thereof, the representation...

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