ON THE MATTERS RELATING TO THE APPOINTMENT OF A COMMISSION UNDER THE JUDGES REMUNERATION AND PENSIONS ACT
 

WEDNESDAY, 15TH NOVEMBER, 2006

Mister Speaker,

1. Pronouncements by the Honourable Mr. Justice John D. Lyons have been the subject of much debate in the country since they were made last week on the 6th November.

2. The first pronouncement came within the context of the expected start of a criminal trial in the Supreme Court at Grand Bahama.  Before adjourning that matter to a date to be fixed, the Hon. Justice took the opportunity to express certain concerns in writing when presiding over a call over of criminal matters for the purpose of setting trial dates in the future.  The Crown was represented on that by occasion by an officer of the AG’S Office.

3. The second pronouncement Mr. Speaker, followed shortly after the learned Justice adjourned the criminal trial concluded the call over and had turned his attention to a civil matter before the court involving issues between two private parties and in which the Government had no involvement.

4. Mr. Speaker, at this time I would not go into the content or merits of the two pronouncements or what transpired before the Honourable Justice except in so far as I consider is necessary to acquaint members of what has ensued since the 6th November to the present time.  This circumspection is due to the deference the Government always has to decisions of the Courts of The Commonwealth of The Bahamas and therefore a reluctance to discuss those decisions in this place and also to the fact that on the 7th November 2006, the day after the pronouncements of the Honourable Justice, The Bahamas Bar Council filed proceedings in the Supreme Court against the Rt. Honourable Prime Minister, The Rt. Honourable. Leader of the Opposition, Your Honour the Speaker and the Honourable President of the Senate.

5. Mr Speaker, those proceedings assert and relate to issues addressed by Mr. Justice Lyons on the aforementioned occasions.

6.  Many outside of this place have expressed their views on what has been called a ‘constitutional crisis’.  It is the position of the Government of The Bahamas that no such constitutional crisis exists, and I have indicated as much in my formal response to members of the press and the public at large.

7. Nonetheless, I feel beholden to lay before this Honourable House, to the extent that I possibly can, bearing in mind that some of these issues are before the courts, the history of this matter and how we have arrived to this point.
Mister Speaker,
8. The Judges Remuneration and Pensions Act was originally passed on 23rd March 1988 and brought into force on 1st May of the same year. Having followed the stories in the press, it appears that there is a prevailing misconception among some members of the public that this Act applies to all members of the judiciary. This is not the case. The Judges Remuneration and Pensions Act only applies to the Justices of the Supreme Court and, by an Order of extension, to the Justices of the Court of Appeal.

9. This Act has never had any application to either:-
(i) members of the Industrial Tribunal;
(ii) Circuit Magistrates;
(iii) Stipendiary Magistrates;
(iv) Other Judicial Officers including Registrars of the Supreme Court and Court of Appeal;

This is important to note for reasons that will be addressed further on.

10. Further, it must be borne in mind that the original Act made no provision for the appointment of a commission (which I shall refer to as the “Judicial Review Commission”) to review, among other things, the salary of Justices of the Supreme Court and the Court of Appeal. This did not take place until 2000. Therefore, for decades up until 2000, an increase in the salary and related benefits for all members of the judiciary, including the members of the higher judiciary, was decided by the Government of the day in similar manner as it would have for members of the Civil Service.

11. Indeed for the Circuit Magistrates, Stipendiary Magistrates, the President and Vice President of the Industrial Tribunal and Registrars of the higher courts, a review of salaries and increases thereto are still made at the instance of the Government. To do so has not, as far as I am aware, been called into question, before now.
12. On 19th April 2000, an ad hoc body was appointed by the then Prime Minister, the Right Honourable Hubert Ingraham to review the salaries and other benefits payable to the Justices of the Supreme Court and the Court of Appeal.

13. Its members were:-
(i)  Sean McWeeney, Former Attorney General, Chairman
(ii) Mr. Joseph Strachan, CMG, retired Supreme Court Justice
(iii)  Ms. Jeannie Thompson, now an Honourable Justice of the Supreme Court,
(iv) Mr. Brain Moree, distinguished Attorney
(v) Ms. Sharon Brown, Senior Banker

14. On the 30th June 2000, the said Act was amended to provide for the appointment of the Commission to review the salaries, allowances, and other benefits of members of the judiciary and to make recommendations in relation thereto.  This is now section 4 of the consolidated text of Judges Remuneration and Pensions Act, which is at the centre of the ongoing debate. Because of which Mister Speaker, I would like to read section 4 of the said Act in its entirety.

15. Section 4 of the Act reads as follows:-
   (1) The Governor-General shall, within six months after the coming into force of this section and thereafter within six months after the 1st day of April in every third year or at such earlier times as may be expedient appoint a Commission to –
i. enquire into the adequacy of the salaries, allowances and pensions payable under this Act and the adequacy of benefits generally;
ii. Make such recommendations as the Commission considered appropriate in relation to the matters specified in paragraph (a).
(2) A Commission referred to in subsection (1) shall be appointed by instrument in writing and shall-
(a) consist of no less than three or more than five members, one of whom has held judicial office:
(b) hold office for such period as may be specified in the instrument of appointment;
(c) Within three months of the date of appointment submit to the Prime Minister a report containing the recommendations referred to in subsection (1) (b).
(3) The Prime Minister shall lay before the House of Assembly for its approval the report referred to in subsection (2) (c) for giving effect to such report.
(4) Where the Governor-General is satisfied after consultation with the Commission that it is equitable that any recommendation contained in a report laid under subsection (3) should have retrospective effect in order to confer a benefit upon or remove a disability attaching to any person such recommendation may be given effect for that purpose.
(5) No recommendation under subsection (4) shall have retrospective effect unless it has received the prior approval of the House of Assembly signified by resolution.”

16.    Members will recall my statement earlier in this Communication that the ad hoc committee was appointed in April 2000, before the amendment became effective on June 30th, 2000.  ,. Subsequently pursuant to the amendment the Governor General on 23rd November 2000 statutorily appointed the members of the ad hoc committee as the first Judicial Review Commission.

17.    The Commission was appointed to specifically:
a. Enquire into the adequacy of the salaries, allowances and pensions payable under the Judges Remuneration and Pensions Act and the adequacy of benefits generally.
b. Make such recommendations as the Commission considered appropriate in relation to the matters specified above.
18.            This first Judicial review was the Commission contemplated by s.4 of the Judges Remuneration and Pensions Act and its mandate was a s. 4 mandate.

19.            On the 21st December 2000, the Judicial Review Commission submitted its report to the Office of the Prime Minister.

20.            On the 4th April, 2001, the then Prime Minister tabled the Judicial Review Commission’s Report in the House of Assembly.  During a Communication to Parliament about the report, the Right Honourable Hubert Ingraham said “my government accepts the recommendations of the Report with 2 exceptions….”.

21.            The then Prime Minister said, “The government accepts the need to increase judicial salaries, though not by the full amount recommended by the Commission in that regard. The government is unable to agree to increases in salaries of between 35.5% in the salary of the Chief Justice to 40.5% for Justices of the Supreme Court. Such increases are outside the Government’s ability to afford at this time.” He went on to say “…the Government has agreed in like manner to increase salaries in the judiciary by 20% to be applied in two instalments of as 1 July, 2000 and 1 July 2003. Given that general Public Service increases in the normal course would be around 7% my government feels that a 20% increase for judicial officers (or “the Judiciary”) would be reasonable and appropriate.”

22.             Note therefore, that the Government did not accept the report in its entirety. Instead of proposed salary increases of 35.5% - 45%, the then Prime Minister indicated that the Government would agree to increase salaries of the higher judiciary by 20%. Also note that the lesser sum than that recommended was to be to be implemented in two (2) instalments. The first to be effective as of 1st July 2000 (retroactive) and the second instalment effective 1st July 2003.
 

23.            A full debate of the report by the Judicial Review Commission was envisaged; however no debate specific to this report ever occurred.

24.            Rather, the recommendations of the Judicial Review Commission were considered during the Budget Debate for the year 2001/2002.

25.            The House of Assembly passed a resolution on 20th June 2001 approving the increases of salaries and allowances to the Justices of The Supreme Court and Court of Appeal consistent with the figures presented by the then Prime Minister in his communication to the House of Assembly on 4th April 2001.  (See in particular page 7 of that Communication).

26.             On 22nd June 2001, the following Statutory Instruments were gazetted giving effect to the Resolution passed by the House of Assembly, namely:-
(i) The (Judges Remuneration and Pensions  Act (Amendment to Schedule) Order;
This instrument provided for the increases of salaries for the Justices of the Supreme Court. In particular, it detailed the retroactive increase effective 1st July 2000 as well as the future increase effective 1st July 2003.
(ii) The (Judges Remuneration and Pensions Act (Allowances) Order;
This instrument provided for an increase of the responsibility allowance afforded to the Justices of the Supreme Court and also the implementation of the non-contributory medical and hospitalization insurance scheme.
(iii) Judges Remuneration and Pensions Act, (Extension to Justices of Appeal) (Amendment) Order, 2001
This instrument provided for the increases of salaries for the Justices of the Court of Appeal. In particular, it detailed the retroactive increase effective 1st July 2000 as well as the future increase effective 1st July 2003.

This Instrument provided that the Justices of the Court of Appeal would also be covered by the non-contributory medical and hospitalization insurance scheme.

27.            Members should note that 2003 holders of judicial office received a salary increase.

28.            On 5th March 2004, Cabinet advised that at its 7th Meeting it considered a memorandum by the Attorney General and Minister of Education, ICM (03) 1013, and approved the appointment of a Commission to consider issues mentioned therein.

29.            The mandate of this Commission was extensive. In addition to a review of the salary and conditions of the Judges of the Supreme Court and the Court of Appeal, it was also expected to review and report on the salaries and conditions of the other Judicial and Legal Officers, including:-
a. President and Vice President of the Industrial Tribunal;
b. Stipendiary and Circuit Magistrates;
c. Registrars of the Supreme Court and The Court of Appeal;
d. Public Legal Officers including legal staff in the Office of the Attorney General
and make recommendations in respect thereof.

30.            The members of this Commission were appointed by the Prime Minister and included the following persons:-
a. Sean McWeeney (Chairman) – Former Attorney General of The Bahamas;
b. Mr. Wayne Munroe, President of the Bahamas Bar Association and distinguished Attorney at-Law;
c. Mr. Ednol Smith, Partner of Price Waterhouse Coopers
d. Ms. Malvern Bain, VP at British American Bank
e. Mr. Milton Evans, distinguished Attorney at-Law

31.            While this Commission was not appointed under the auspices of the Judges Remuneration and Pensions Act, it is inaccurate for persons to paint the impression that a salary review for the Justices of the higher courts was not performed during this Administration’s term of governance. Indeed, the government not only commissioned a review of the salaries and conditions of Justices of the Supreme Court and the Court of Appeal, but also that of the Circuit and Stipendiary Magistrates and members of the Industrial Tribunal, who do not enjoy many of the privileges and benefits afforded the higher judiciary.

32.            On the 18th May 2005, this Commission provided an interim report dealing exclusively with legal officers in the Office of the Attorney General. In its interim report, the Commission anticipated providing a full report before the end of June 2005.

33.            This did not happen. A full report was not provided until 15th May of the following year, 2006. I wish to express Mister Speaker  that the timelines set out herein are important and noteworthy having regard to the :-
a. Extensive scope of their review;
b. the other responsibilities and obligations that these distinguished members must have had; and
c. that as there is no other benefit than, as the Honourable Justice Lyons put it, ‘the pleasure to serve’.

34.            The Report of the Commission was brought to the attention of Cabinet in May 2006.

35.            Cabinet at its 13th meeting in May 2006 considered a memorandum by the Attorney General and Minister of Legal Affairs ICM (06) 194 and agreed to the interim payment for legal officers in the Office of The Attorney General, as recommended. Increases of salary scales within the Office of the Attorney General were implemented by April 2006 and were retroactive to June 2005, which was contemporaneous to when the Report was issued.

36.            As I indicated previously, the Commission’s full Report was provided in May 2006.

37.            The Cabinet at its 35th Meeting considered a memorandum by the Attorney General and Minister of Legal Affairs ICM (06) 591 and “noted as Interim Measure, the Registrars and Magistrates would receive salary adjustments and allowances with effect from 1st July 2005.”  Cabinet’s decision is being implemented.

38.            Therefore, to suggest that the Government has not taken the recommendations of this Commission into consideration is again, misleading. This Government has increased the salaries of legal officers based on these recommendations. Interim increase for Magistrates and Registrars were advanced, based on the recommendation of this Commission.
39.            On the 26th September 2006, Cabinet approved the appointment of the Judicial Review Commission 2006, i.e. the Commission contemplated by s.4 of the Judges Remuneration and Pensions Act.

40.            Pursuant to Cabinet’s said decision, The Judicial Review Commission was appointed by His Excellency the Governor General on 10th November 2006.

41.            The Members of the Commission are:
(i) Mr. Joseph Strachan CMG, Retired Justice of the Supreme Court, Chairman
(ii) Mrs. Rubie Nottage, Provincial Chancellor of the Anglican Church in the Province of the West Indies,  Chancellor of the Diocese of The Bahamas including the Turks and Caicos, distinguished Attorney, Secretary General of the College of The Bahamas and Law Lecturer
(iii) Mr. Anthony McKinney, distinguished Attorney, Chairman of The Bahamas Maritime Authority
(iv) Rev. Timothy Stewart, Officer of the Progressive National Baptist Convention, Senior Pastor of the historic Bethell Baptist Church, and holder of many other offices in the Bethell Baptist Communion, Minister of Religion
(v) Mrs. Wendy Craigg, Governor of The Central Bank

42.            The Office of the Attorney General does not agree with the views expressed by Mr. Justice Lyons. We have sought the advice of pre-eminent counsel in the Caribbean, United Kingdom and from pre-eminent and learned counsel at the Bahamas Bar. They also do not agree with the views expressed by Mr. Justice Lyons.  Accordingly, the government will pursue the requisite legal steps and appeal.
 
43.            Mr. Speaker I consider that I have dutifully given an update and while cognizant of the constraints as regards matters sub-judice I do believe it would be remiss of me should I refrain from expressing deep concern over certain of the statements made in one of the pronouncements of Mr. Justice Lyons.

44.            Those statements are capable of being interpreted as imputing criminal acts to the Government of this country.

45.            This Government unreservedly respects the integrity and independence of the members of the Judiciary and their right and indeed constitutional duty to give expression to views pertinent to matters before them.

46.            Bahamians also respect judicial pronouncements, even if individually or collectively they may exercise their right to disagree with those pronouncements.
 
47.            Therefore to speculate that a Judge in this country, merely because he or she may rule in a matter against the Government or make statements critical of governmental action would be subjected to what would amount to criminal acts by members of the Government is to make imputations which are inimical to the culture, tradition and indeed polity of our country and of our society.

48.            Mr. Speaker, The Bahamas is a great country.  Our people have enjoyed approximately 280 years of continuous parliamentary democracy.  This is a longer period than that which has been enjoyed by the USA and many other countries.  An independent judiciary is a bullwark of democracy.  The Government acknowledges and thanks those hardworking judges who today continue to sit in our courts, making it clear that the courts are open and operating in accordance with our Constitution, and that the third branch of governance, the judiciary, is in independent and capable hands.

49.            Mr. Speaker, Proverbs 4:7 reads “Wisdom is supreme: therefore get wisdom.  Though it costs you all you have, get understanding.”  This is my prayer today for all persons within our boundaries.

50.            May God bless The Commonwealth of The Bahamas.

Date: 14th November 2006