A local attorney on Wednesday, questioned whether the constitutional appointment of judges by the Prime Minister ensured the independence of the judiciary.
Addressing the Rotary Club of East Nassau Wednesday, on “The Weakness of Judicial Independence in The Bahamas”, Raynard Rigby, partner in the law firm, Gibson, Ribgy, and Co. said that there must be a new and open process for the appointment of judges.
“I trust that the present Government will be wise and engage the public in such a vitally important discussion. However, I must air one caution, and that is, ultimately judicial independence depends on how judges perceive and respond to their duty to repel any attempts by the Executive to erode the substance and value of their independence,” he said.
He told Rotarians that the provisions in the constitution which afford judges security of tenure, by themselves merely go to allow them opportunity to assert independence.
“They do not make them independent,” he said
“Judges are perceived as persons who have made tremendous personal and financial sacrifice when they become judges. Whilst this may be true, any sacrifice should not be perceived as a necessary evil to justify the appointment of those legally and morally disqualified to shoulder the responsibility for the third branch of Government,” Mr. Rigby said.
He said that the current process practised in The Bahamas with regard to the appointment of judges, has in many respects, led to judicial independence being tied to political bias.
“In some respects, judges have come to see themselves as wards of the political directorate,” he said.
Mr. Rigby said that he was of the opinion that the constitutional provisions which are articulated to guarantee this security, as well as the insulation from direct and indirect political interference in the performance of their duties, in fact weakens the judiciary and its independence.
He said that a vibrant and strongly truly independent judiciary is vitally imperative as it serves as the ultimate custodian of the fundamental rights and freedoms of those residing in a democratic state.
“It can be argued that unless such provisions that allow for security of tenure are supplemented by a process of appointment that insists upon strict accountability of judges as to their moral, ethical and intellectual propensities, then even the boundaries of their constitutional independence will become forever blurred,” continued Mr. Rigby.
“Herein lies the danger. The consequences for our democracy are anarchy and political instability . Therefore, as accountability is compelled upon the political directorate, there exists no justifiable reason why such compelling accountability ought not to be thrust upon those that occupy judicial office,” he said.
Mr. Rigby said that The Bahamas judiciary presently lacks such accountability, and has its own institutional identity.
“There is no self-portrait as long as the judiciary and the politicians allow for the appointment of judges under a disguise of utter secrecy. There still exist today, occasions when lawyers and Bahamians have to resort to a newspaper to have notice of an appointment of a judge. It is wrong then and it remains wrong today,” he added.
He continued that attempts by politicians to Bahamianise the judiciary by granting non- Bahamians permanent residency status and citizenship is but a regression of the value of the constitutional supremacy of judicial independence.
Mr. Rigby advocated that “a judge’s inner strength has more to do with his sense of himself within the context of his personal and professional experiences as a member of the community in which he is engaged. He must be deeply wrapped in the historical and sociological sentiments of the community and thereby able to understand and define the character of the community and its aspirations.”
