Adderley’s purported appointment not in the best interest of an Independent of the Judiciary!

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Elsworth Johnson<<< Elsworth N. Johnson.

Dear Bahamas Press,

Please allow me an opportunity to express my opinion on an issue that is of significant importance at this stage of the development of my beloved country. Indeed, at the heart of any constitutional democracy is an independent, impartial and fearless judiciary which has as its foundation the guiding principal of integrity.

I have followed the saga involving Mr. Malcolm Adderley and the Progressive Liberal Party (PLP), who both in my humble opinion have strayed from the ideology and philosophy of the pre 1967 PLP! Be that as it may, I vividly recall Mr. Adderley’s anecdotal story after the 2007 general elections about the difficulties he would have faced in being re-elected to parliament. Mr. Adderley with a degree of style and class has always demonstrated his disenchantment with the leadership of the PLP. Now, with the artistry of Master Sun and the treachery of Machiavelli, the final arrow has hit its would be target. That is poetic politics my dear public!

Article 94 of the Constitution of the Commonwealth of The Bahamas provides that Justices of the Supreme Court shall be appointed by the Governor-General by instrument under Public Seal acting on the advice of the Judicial and Legal Services Commission. Lord Diplock in Thomas v. A.G. of Trinidad and Tobago, emphasize the “crucial significance” of the selection process and the role of the commission. The purpose is to insulate members of the Judiciary from political influence exercised directly upon them by the government of the day. The means adopted for doing this, was to vest an autonomous commission, to the exclusion of any other person or authority, power to make appointments to the Judiciary. In respect of the autonomous commission, the Constitution contains provisions to secure its independence from both the executive and the legislature.

The aforementioned process was designed to eliminate what is known as the “spoil” system. A system by which the government of the day without the protection that our constitution offers would be able to use such appointments as political rewards and there by subordinate the sovereignty of the country to the furtherance of the political party’s aims. Without condescending to the particular, considering all of the circumstances surrounding Mr. Adderley’s purported appointment one just might be able to say that in this case, “’to the victor go the spoils”!

While I acknowledge the fact that true judicial Independence cannot be totally guaranteed by constitutional provisions, because judicial independence lies in the heart of the individual, I submit the following; Inherent in the Westminster model system is the separation of powers, security of tenure of justices and the selection process which all combine to secure the independence as well as the integrity of the judiciary. Having regard to the significant role that the judiciary is called upon to play as guardians of those sacred principles out lined in our constitution. I submit, that the process by which it would appear that Mr. Adderley is going to be admitted to the bench, should he decide to so do may make the entire process a mockery.
Signed,

Elsworth N. Johnson, LLB, LLM.

6 COMMENTS

  1. Whereas the appointments of Herpburn and Barnett were questionable Adderleys is frightening as he has espewed too much hatred.No one can feel comfortable going b4 him on any issue concerning the Govt and getting a fair trial.He should have just resigned and kept his mouth.Plus he only resigned when challenged by thoses with authority in his party.

  2. The real issue and the final conclusion must be the unsuitability of anyone who would foster such a mockery of the process. The initiator and the receiver.

  3. Good article , I would have also appreciated reading it  on the appointment of both Claire Hepburn and Mr. Barnett.

    • Good article for sure.  But if you understood it, you would realize that it  applies to neither Justice Hepburn nor Sir Michael.   Those who attempt to make a political spectacle out of these appointments often disregard the legal acumen of these two judges, and tend to rely on the aphorism: “not only must justice be done; it must also be seen to be done”.  Lord Hewart, in R v. Sussex Justices, ex parte McCarthy, when he authored this paraphrased aphorism, clearly would not have applied it to the appointment of Sir Michael as Chief Justice,.  Lord Hewart himself left the British Cabinet and the Office of Attorney General on 6th March, 1922 and became Chief Justice on 8th March, 1922…two days later.The political ramblings on this point are really beginning to sound silly.  We as a people must mature politically and celebrate the achievement of our bright and expert professionals.

      • Even though Justices Herpburn and Barnett might be above reproach when PAPA fired McKinney and Russell from ZNS on a platform then fired many others ; stopped reviewed and cancelled many projects mistrust for anything he did set in and is likely to remain until his defeat in the General Elections of 2012.PAPA has caused serious damage to the psyche of Bahamians and only prayers,counselling and strength will help us regain our confidence.PAPA must mature and stop acting like a banana republic despot and the people will follow. 

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