Whitfield v The Attorney General

• Jurisdiction: Bahamas
• Judge: Gonsalves-Sabola, J.
• Judgment Date: 06 March 1989
• Court: Supreme Court (Bahamas)
• Docket Number: Common Law Side No. 1147 of 1988
• Date: 06 March 1989

Supreme Court

Gonsalves-Sabola, J.

Common Law Side No. 1147 of 1988

Whitfield

and

The Attorney General

Appearances

Mr. Harvey Tynes, Mr. C. Wallace Whitfield with him, for the plaintiff

Mr. R.G. Marques, Mr. Desmond Bannister with him, for the defendant

Constitutional Law - Judiciary — Tenure — Chief Justice of Bahamas attaining age 65 — Prior agreement between Prime Minister and Chief Justice that he should continue in office until age 67 — Article 96(1) — Constitution of Bahamas making provision for extended tenure of a Justice of Supreme Court — Prime Minister's consultation with Leader of the Opposition occurring after Chief Justice attained age 65 — Whether the Chief Justice was validly permitted to continue in office — Whether the plaintiff was statue barred from bringing action — Whether the plaintiff had locus standi — Whether consultation and recommendation should occur before the attainment of age 65 by the Justice — Interpretation of statutes.

Gonsalves-Sabola, J.

1 On 5th January, 1988, Mr. Philip Telford Georges, Chief Justice the Commonwealth of the Bahamas, attained the age of sixty-five years. Before he attained that age there was an agreement between the Prime Minister and himself that he would continue in office until he attained the age of sixty-seven years. The Chief Justice was informed that the Prime Minister would be prepared to make the necessary recommendation to that end to the Governor General. This was all intended to be pursuant to the provisions of Article 96(1) of the Constitution of the Commonwealth of the Bahamas, which reads –

“Tenure of	96-(1) Subject to the provisions of paragraphs (4) to (7) (inclusive) of this article, a
office of Justice of	Justice of the Supreme Court shall hold office until he attains the age of sixty-five
Supreme Court.	years:
Provided that the Governor-General, acting on the recommendation of the Prime Minister after consultation with the leader of the Opposition, may permit a Justice who attains the age of sixty-five years to continue in office until he has attained such later age, not exceeding sixty-seven years, as may (before the Justice has attained the age of sixty-five years) have been agreed between them.”

2 On 12th January, 1988 the Leader of the Opposition received a self-explanatory letter dated 8th January, 1988 under the hand of the Prime Minister, text of which is set out hereunder:

“Dear Mr. Wallace Whitfield:

By virtue of Article 96(1) of the Constitution a Justice of the Supreme Court holds office until he attains the age of sixty-five years but the Governor-General acting on the recommendation of the Prime Minister after consultation with the Leader of the Opposition may permit that Justice to continue in office until he attains a later age not exceeding sixty-seven years as may, before the Justice has attained the age of sixty-five years, have been agreed with him.

Chief Justice Mr. P. Telford Georges in December last indicated that he would be attaining the age of sixty-five on January 5, 1988 and was willing to continue in office until age sixty-seven. He was then informed that I would be prepared to make the necessary recommendation that he continue beyond age sixty-five until he attains age sixty-seven after consultation with you. However, I forgot to mention this to you when I visited with you.

I regret that, in the circumstances I must now invite your concurrence in approving Mr. Justice Georges' continuance in the office of Chief Justice beyond the age of sixty-five until he attains the age of sixty-seven as agreed with him and a recommendation for which I wish to make to His Excellency.

Yours sincerely,

Lynden 0. Pindling

PRIME MINISTER AND MINISTER OF FINANCE .”

3 The Leader of the Opposition in a similarly self-explanatory letter dated 18th January, 1988 responded to the Prime Minister's letter dated 8 ^th January, 1988:

“Dear Prime Minister,

Thank you for your letter dated the 8th January, 1988 which was delivered on the 12th January, 1988 in which you, in accordance with Article 96(1) of the Constitution, consult me on the continuation in office of Chief Justice, the Hon. Telford Georges until he attains the age of sixty-five.

You set out in your letter, inter alia, that the Chief Justice had attained the age of sixty-five on the 5th January, 1988 and was willing to continue in office until age sixty-seven. You also stated that you forgot to mention this when you visited with me.

The lateness of your consultation dated the 8th January, 1988 when the Chief Justice had already attained the age of sixty-five on the 5th January, 1988 has put me in a difficult Constitutional position in that Article 96(1) of the Constitution states very clearly that a Justice who has attained the age of sixty-five may be permitted to continue in office until he has attained such later age, not exceeding sixty-seven, as may ( before the Justice has attained the age of sixty-five) have been agreed between them. The underlining is mine.

There can be no doubt that a Justice vacates his office at age sixty-five unless certain steps are taken before the Justice reaches the age of sixty-five. It is also clear that these steps were not taken before the Chief Justice attained that age. We find ourselves in the position where the Chief Justice on attaining age sixty-five ceased to be a Justice and was therefore not in a position to continue in office.

I deeply regret the position that the Government's negligence has created for our former Chief Justice. Mr. Telford Georges has served our country with distinction and commanded the respect and admiration of the Official Opposition and all others in our country. Indeed it was our hope that not only would our former Chief Justice continue in office (which under the circumstances is not now possible) but that he would have been appointed to the Court of Appeal where his excellent legal mind and appreciation for our laws would have contributed to the further development of our society. It is still our hope that the talents of Mr. Georges may be utilized in some other capacity without any loss of personal emoluments.

For the reasons stated herein I am constitutionally unable to concur in extending the tenure of the former Chief Justice the Hon. Telford Georges. Notwithstanding my personal preference, the Constitution of the Bahamas must be upheld.

Yours faithfully,

Cecil V. Wallace Whitfield

Leader of the Opposition.”

4 The Prime Minister, obviously believing that he had fully discharged his duty of consultation with the Leader of the Opposition in terms of the proviso to Article 96(1), proceeded to make the necessary recommendation to Governor General to permit the Chief Justice to continue in office until a sixty-seventh birthday. The Governor-General then needed to conform to Article 79(5)(b) of the Constitution, which is now quoted in its context –

• “(5) Where the Governor-General is directed to exercise any function on the recommendation of the Prime Minister after consultation with the Leader of the Opposition, the following steps shall be taken –

  • (a) the Prime Minister shall first consult the Leader of the Opposition and thereafter tender his recommendation to the Governor-General;

  • (b) the Governor-General shall then inform the Leader of the Opposition of that recommendation and if the Leader of the Opposition concurs therein the Governor-General shall act in accordance with the recommendation;

  • (c) if the Leader of the Opposition does not concur in the recommendation the Governor-General shall so inform the Prime Minister and refer the recommendation back to him;

  • (d) the Prime Minister shall then advise the Governor-General and the Governor-General shall act in accordance with that advice.”

5 The Governor-General, in accordance with Article 79(5)(b) informed the Leader of the Opposition of the Prime Minister's recommendation. The r of the Opposition then honored Article 79) 5)(c) by communicating his non-concurrence to the Governor-General by way of a letter dated 25th January, 1988 which read –

6 “Your Excellency,

7 Thank you for your letter dated the 19th January, 1988, concerning the recommendation of the Prime Minister to continue Mr. P. Telford Georges in office as Chief Justice until his sixty-seventh birthday on 5th January, 1990.

8 The Prime Minister wrote to me on the 8th January, 1988, which letter was delivered on the 12th January, 1988, to consult me pursuant to the provisions of Article 96(1) of the Constitution on the continuation in office of Mr. P. Telford Georges as Chief Justice until his sixty-seventh birthday.

9 I was informed by the Prime Minister, inter alia, that Mr. Georges had attained the age of sixty-five on the 5th January, 1988, and Mr. Georges was willing to continue in office until age sixty-seven. The Prime Minister also stated that he forgot to mention this when he visited with me.

10 The lateness of the Prime Minister's consultation dated the 8th January, 1988, when the Chief Justice had already attained the age of sixty-five on the 5th January, 1988, has put me in a difficult constitutional position in that Article 96(1) of the Constitution states very clearly that a Justice who has attained the age of sixty-five may be permitted to continue in office until he has attained such later age, not exceeding sixty-seven, as may ( before the Justice has attained the age of sixty-five) have been agreed between them. The underlining is mine.

11 There can be no doubt that a Justice vacates his office at age sixty-five unless certain steps are taken before the Justice reaches the age of sixty-five. It is also clear that these steps were not taken before the Chief Justice attained that age.. We find ourselves in the position where the Chief Justice on attaining age sixty-five ceased, to be a Justice and is, therefore, not in a position to continue in office.

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