House of Assembly
Nassau

30th April 2008

On the Supreme Court (Amendment) Act 2008

This is a simple amendment.  But there is always a reason for an amendment.  I start where I have started many times before with regard to these bills.  The objects and reasons clauses are deficient.  They do not tell Members of Parliament what the bill is about.  If there are to be objects and reasons then they should do more than simply recite what the bill itself says.  It should give the objects and the reasons.  For example when you look at the objects and reasons in this bill, who in this Parliament beside the lawyers would know what a master of the court is and what a master does.

A master of the court is an officer in the courts in England who has the power to do what Judges can do in Chambers, dealing with mainly procedural and interlocutory matters and also taxation of bills of costs.  It does not include the power to grant an injunction.  I believe that is still reserved for judges alone.

This bill gives rise to the wider discussion about the Supreme Court.  The Supreme Court is very much in the news as it relates to the appointment of Judges and judicial officers.  It is also in the news because the government brought into force what we consider an ill advised piece of legislation to lower the size of juries.  That came into force on 7th April 2008.  I also want to discuss the question of the sub judice rule that has exercised this Parliament and the press and what it means for proceedings in the Supreme Court.

On the question of judges and judicial officers.  There is no secret about my personal view and I think that many in my party are coming round to that view that there needs to be a more open and transparent process for the appointment of judges.  The Judicial and Legal Services Commission on the face of it appoints judges.  It was the late Sir Leonard Knowles, the first Bahamian Chief Justice in an independent country who complained that the executive was very much into the business of appointing Judges.  He was not simply talking about the control input by the two appointments by the Prime Minister on the Commission.  There was an administrative mechanism whereby once an appointment was made by the Commission, the Department of Public Service got involved and referred the matter to the Secretary to the Cabinet, which means the Prime Minister, to say whether the post could actually be filled.  It was by that mechanism that judicial appointments were controlled, supported or reversed by the Prime Minister.

When we were in office, the present Chief Justice objected to this and proceeded to appoint a number of Judges on the authority of the Commission.  The Cabinet office did not agree with his view.  The matter was referred in our time to the government’s lawyers and the then Attorney General, the now Member for Ft. Charlotte agreed that the Chief Justice was right.  We do not know what the position is today.

I support an amendment to the constitution that would provide for public scrutiny of every judge who is being appointed, including the previous decisions and most important their philosophy and - I would say on this occasion - as well as their temperament.

It seems to me that in the case of justice being done and being seen to be done, judicial temperament is most important to the idea of fairness and the perception of fairness.  You have heard Members of this Parliament who are practitioners and practitioners who come from abroad complain that the judicial temperament of too many judges is simply appalling.  This is a particular complaint in the Court of Appeal where it appears that the complaint is that in too many cases you or your client can’t get off first base.  There is a lack of respect for the attorneys; on many occasions, the Court will simply not listen to the arguments.  And in too many cases recourse has to be had to the Privy Council, that has in strong terms criticized the lack of courtesy and decorum in that court.  Yet the complaints continue, the disrespect continues and there is no recourse for the practitioner save for the expensive remedy of the Privy Council.

I believe that no Judge should sit on a court who is not patient and who is not prepared to listen.

Then you have on the other hand Judges who simply talk too much.  You appear before them for what is the briefest of applications, and you are taken all around the mulberry bush, as if the Supreme Court Bench is a soapbox for every political and personal opinion under the sun, every opinion from the personal to the public interest issues.  In one case, a Judge of one of the courts personally attacked the Leader of the Opposition by name and our party from the bench.  I found it extraordinary.

And yet an extension has been granted for that Judge to continue to serve on our bench.  Temperament is most important, and ill tempered people should not be on the bench.

It seems to me Mr. Speaker that this applies to all judicial officers.  In this case, we are dealing with registrars, who can do what a Judge does in chambers.

The complaint from practitioners here is that it often takes too long for decisions by the courts to be written and communicated to the lawyers.  The lawyers are afraid to press the issue because they know how people in this country go.  The thought is that they will find an excuse to rule against you because you trouble that judicial officer for a timely ruling.  So while you are sticking up for your client’s rights, you may be prejudicing their case.  You choose to remain silent.  You appear before the courts, finish your submissions, you have to wait for weeks and weeks, sometimes months up to 18 months for a decision and there is no way through the system to address it or to get redress.

I do not appear before Judges in court, at some considerable impact on my potential income because I am now of the view that I should be free to discuss this and other matters about the judiciary without having to concern myself about that issue of prejudice.  This is all the more reason that the times demand full time Members of Parliament.

I think it is time for a statutory code of conduct for Judges and Judicial officers generally.  This would give the right to lawyers and litigants to complain to the Judicial and Legal Services Commission where some judges and judicial officers have simply abused their positions by their lack of respect and courtesy to lawyers and litigants and for other disciplinary infractions on their part.  Some of these political statements by Judges from the bench should be sanctioned and should lead to disciplinary action against them.  Stay out of politics.  If you want to be a politician then run for office; otherwise stay out of it.

I want to make an appeal here for the Government’s Minister of Justice to look into the continued delays with regard to probate applications and the need for legal reform in this area.  There must be a simpler way and a cheaper way and a more timely way for these applications to be processed.  Probate applications are still taking up to 18 months to be completed.
 
The government has now brought into Force the legislation to lower the size of juries in the Supreme Court.  We warned that this would not do a thing to speed up trials in the courts.  We will see but what we do know is that the anecdotal evidence is there - and I have no doubt that this will be confirmed by the statistical evidence - that the problem in the courts is not juries but the ability of the Crown to get its act together and present cases for trial.  The backlog is still there.  It has gotten worse in the criminal courts since we debated this matter last year.  There is no end in sight.  They blamed the PLP but they have had 12 months now to do something about it but nothing has been done.  The Judges still complain that they are there twiddling their thumbs because the Crown can’t get their case in order for trial.

I raised publicly the question of a recent case where the Crown’s star witness went cold and reversed himself in a murder trial that had just begun.  The Crown entered a writ of nolli prosequi and then recharged the state’s former witness and the others and charged them for murder and conspiracy.  They then took the matter to a Magistrate and a date for a preliminary inquiry was given.  I asked then and no one answered; what in the heck do you need a Preliminary Inquiry for, if you were ready to try the matter?  Obviously, the file must be in order, just go to the Supreme Court and start the trial.  It is that kind of administrative issue that the public sees and this brings about the frustration and the backlog.  When we appeared before the Government’s crime Commission headed by Bishop Simeon Hall, we made that point.  The fault is clearly not in the Courts but in the Office of the Attorney General and its’ ability to coordinate its cases with the police to get them ready for trial.

That is what Senator Allyson Gibson’s swift justice programme was about when she was Attorney General.  We are told that the state of morale at that office has plummeted to an all time low, with petitions and complaints being written to the Prime Minister about the conduct of the affairs of that office.

There is no doubt that there is a connection between the Courts and the crime.  Judges have been quoted in the press as saying that people want to blame the courts for crime.  I do not go that far.  But I do think that the courts have a role in fighting crime.  That much is clear.  The timely disposition of cases is important in the fight against crime.  I believe that we all know that much of the delay arises because of the difficulties that occur when the police finish their investigations and the matter comes to court.  The previous Attorney General sought to get the two sides together from the start of the cases so that when they reached the courts, the files were organized properly to take the case forward.

But the view of the criminal and I would say the average citizen would say that delay is the friend of the criminal.  The criminals then, even the alleged murderer knows that in this system, delay is their friend.  We have not been able to conquer delay.  It leads to justice being denied.

What is also happening though is that there is not enough civic activism on the part of NGOs about this matter.  You have the odd outcry from those of us who dabble in the profession and I think that the younger lawyers just don’t do enough.  It appears that many of them are quite content with life as it is.  You have the occasional outcry from the victims and their relatives but there has been no sustained public pressure to do something about the delays in our system that infects the entire public service.

In the mean time, you have a public that seems increasingly immune to the violence and the human degradation that is involved.  The most recent case of the taxi driver 63 year old Herbert Winter, led the ZNS TV news to do a man and woman on the street interview.  There was a split between men and women.  The women expressed the fears that you would normally expect as a result of this continuous orgy of violence in our society.  The men, without exception, that they did not have any fear, that crime was a normal feature of life in the kind of society we have, that crime was all around the world.  With the greatest of respect to them, I cannot possibly see how that could be so.

I want on behalf of our side to express the heartfelt condolences to the family of Mr. Winter who simply died too soon.

The problem about the crimes against the person in this country is the fact of the randomness of it.  There is property crime that is out of control and goes largely unsolved, even unreported.  The fact is crime also looms much larger in the media of The Bahamas as an event.  It is frightening.  Every day, the front pages are replete with murder, mayhem and robbery.  Old women in their homes, murdered.  A minister of the government coming home from a rally murdered.  A man sitting down to lunch in Subways, murdered.  A couple in a car coming from church, robbed.  That is how it is reported.  You could easily get the impression that no one is safe.  No place is safe.  That it is not even safe to walk the streets.  The crime is unpredictable, and the public believes that there is a confluence of politicians, lawyers, judges and police officers that make the consequences of crime escapable.

There have been Commissions and Committees, studies and investigations.  But what we know is that it has not stopped and it continues to rise unabated.  There will have to be more studies done of course because it is an evolving problem, with new faces and attitudes.  The government that resolves this problem and it is now the FNM’s time to fix it will have done some justice for this society.  We in the PLP thought we had it right.  The solutions are long term, an intervention directly with the people who are the potential criminal pool and their families.  But instead of building on what we left, that has all been scrapped in favour of a direction we know not what, but we watch with bated breath.

I want also to revisit the issue of the misunderstanding that the public, the press and even the legislature and it seems the Speaker has about the question of the criticism of the Courts and Judges.  In this modern democracy, there is no judge’s decision that is beyond reproach.  The public pays for the administration of justice and it is simple as this: if they don’t like it, they have right to say so.  If they like it, they also have a right to say so.

I met recently with one of the publishers of the newspapers and told him that I was deeply disappointed by the position that the press has taken because of the filing of the writ by the Member for Marco City.  We have had a similar experience in here.  Where public discussion of a matter of clear public interest was simply shut down because a writ was filed in the Supreme Court.

This was done despite the fact that in our case May’s Parliamentary procedure says that there is a clear exception where there is no substantial risk of prejudice of a fair trial and that is clear in this case.  There is no substantial risk.  The rule envisages that where civil trials are involved and there is no jury, the question of substantial prejudice and risk does not arise, and particularly where the writ has not been served and no trial date is near.  It leads one to the conclusion that the idea was simply to shut down public discussion.  No House should fetter its discretion to discuss matters of public interest.

This is an extension of the misguided view that Judges and their decisions are not subject to public criticism.  I have said that all of this needs to be put on a statutory basis to make it clear what the law is.  I also believe that the contempt jurisdiction should be severely limited.  The other day, I was appalled that it appeared that the courts were threatening to lock up a preacher because he dared to make a public comment about a judicial decision.  Get real.  This is 2008.

One thing I said to the publisher is that there is a double standard operating.  If it had been a PLP involved in an allegation of abuse of public office, you would never have heard the end of it.  In fact, I find it interesting that the Member of Parliament for Marco City says he is going to sue more people.  No sub judice rule stopped them from printing that though, but on the central allegation they have shut off the public discussion because of the sub judice rule.

The press should not do the public this disservice.  It must carry out its role of exposing pubic malfeasance wherever it is.  And there is a big difference between the titillation of their readers about alleged private peccadilloes and the question of the malfeasance of a minister’s conduct in office.  The latter is clearly a matter of the public interest.

The House of Lords in the case Jameel vs. the Wall Street Journal reviewed and approved what it called the Reynolds’s Privilege.  This shields journalists from the attacks of defamation suits where they have acted reasonably in publishing even defamatory material.  I would argue that if you publish what is on the record in the case of the Mona Vie scandal from this place, it is enough to show due diligence in that regard, and any writ in libel can be safely ignored.  This so called Reynold’s privilege has been extended by the Privy Council on Appeal from the Court of Appeal in Jamaica in the case Edward Seaga vs. Leslie Harper (2008) to protect politicians.  It says that once you have acted reasonably and done fact checking then you can avail yourself of this privilege.  I believe that the fact checking can be shown from the very record of this House and so it is clear that in this instant matter of Mona Vie, the Reynold’s privilege is available.

In the Edward Seaga case he lost on the facts because he repeated the information without checking.

The same goes for the sub judice rule.  There is no substantial risk of a trial being prejudiced and the press and this Parliament must be allowed to carry out its public duties.

We support the amendments.