The Tribune

By RASHAD ROLLE

Tribune Staff Reporter

rrolle@tribunemedia.net

THE Bahamas Bar Association, in a letter to Attorney General Carl Bethel, has expressed “deep-seated concern and alarm” that Prime Minister Dr Hubert Minnis has failed to recommend someone for the substantive post of chief justice.

The letter, dated February 13, 2018, came the same day The Tribune reported some senior lawyers are concerned about the matter. Maurice Glinton, QC, Alfred Sears, QC, and Wayne Munroe, QC, have all told The Tribune Dr Minnis’ appointment of Justice Stephen Isaacs as acting chief justice should be remedied immediately.

Yesterday, Progressive Liberal Party Leader Philip Davis said he too has concerns that the substantive post has not yet been filled.

Kahlil Parker, president of the Bar, told The Tribune he did not authorise the public release of his letter to Mr Bethel, and he declined to discuss the matter further when contacted.

Yesterday, Anthony Newbold, the prime minister’s press secretary, said Dr Minnis is acting within his legal authority to appoint someone acting chief justice.

“The prime minister, after consultation with the leader of the opposition, has exercised a lawful and constitutional power to recommend the appointment of an acting chief justice, pursuant to Article 95(1),” Mr Newbold said. “The governor general has acceded to that recommendation and made the appointment. The post of acting chief justice is thus an appointment recognised in the Constitution; and the acting chief justice in the performance of his office has all the protections afforded by the Constitution to ensure the independence of the judiciary while he holds that office.”

However, Mr Davis hit back at any suggestion he was complicit in the matter.

“The appointment is the prime minister’s appointment, not the leader of the opposition,” a statement from Mr Davis said. “When will the prime minister simply accept responsibility for his own actions or omissions? Every answer to every uncomfortable question is it’s the PLP’s fault. They can’t be serious. I share the concern about an acting appointment for an inordinately long period of time.”

When contacted yesterday, Mr Bethel said this is not the first time an acting chief justice has been appointed in the absence of a substantive office holder. “Under the PLP, Sir (Philip) Telford Georges was appointed acting CJ initially,” he said.

Sir Philip served as chief justice between 1984 and 1989.

In his letter to Mr Bethel, Mr Parker said: “Article 95 (1) of the Constitution may be prayed in aid of the decision to appoint an acting chief justice. However, maintenance of the intended and proper constitutional order requires that a suitable qualified person be appointed to the office of chief justice and assume the functions forthwith.

“It is neither my intention, nor my role, to lecture one as learned as you (Carl Bethel) in constitutional matters and varied requirements of the rule of law. It is however my duty, as chairman of the Bar Council and president of the Bahamas Bar Association, to speak out on behalf (of) the legal profession and the wider public with regard to the administration of justice.

“I write to convey, on behalf of the Bar Council and the Bahamas Bar Association, our deep-seated concern and alarm that the prime Minister has apparently not yet been advised to recommend a suitable candidate to her excellency the governor general, after consultation with the leader of the opposition, for appointment as chief justice. I have also not seen any invitations for applications or advertisements that would suggest the requisite transparent and open selection process, which might have explained the delay.

“His Lordship Senior Justice Stephen Isaacs has both served as acting chief justice on several occasions and is himself more than qualified for appointment to the substantive Office of Chief Justice. The status quo, however, is wholly unacceptable. Continued deferment in this matter has a compounding deleterious effect not the perception of the independence of our Judiciary and thereby the rule of law. There is no room for further delay.”

The issue of delayed appointments to senior judicial positions has been a controversial matter in Jamaica and Guyana recently.

Last year, the president of the Caribbean Court of Justice (CCJ), Sir Dennis Byron, criticised Guyana’s history of filling top positions in the judiciary with people in “acting” roles, arguing such circumstances are beyond “what ought to be acceptable in a modern democracy where respect for the rule of law is maintained.”

Controversy also continues to rage in Jamaica where critics have warned that Jamaican Prime Minister Andrew Holness’ appointment of an acting chief justice impinges on the independence of the judiciary. Mr Holness’ explanation of his decision prompted a major meeting of judges Monday that effectively brought that country’s system of judicial administration to a halt.

The corruption trial of Shane Gibson is being heard in front of Justice Isaacs; Mr Munroe has said given the “political overtures” of the case, he plans to raise concerns about Justice Isaacs’ “acting” chief justice role during the next hearing.