I think that as Belizeans, few of us know and understand our Constitution and worse yet, the concept that it is the SUPREME law of Belize. Unlike in the United Kingdom where Parliament is supreme, in Belize we did not leave such unfettered power in the hands of the politicians. However, our Constitution is of little use if we, the people, do not learn it, know what is in it, understand it and use it. It is user-friendly, and so Belizeans need to debug that myth that only the legally-trained can understand it and appreciate it.
About the Judiciary
In our Constitution, Sections 94 to 104 unquestionably recognize the need for an independent Judiciary and as such address the need for there to be a Supreme Court of Judicature (the system of law courts that administers justice and constitutes the judicial branch of government) and a Court of Appeal. Section 95 outlines that the Chief Justice is the head, and as many other judges as the National Assembly prescribe. However, it also cautions that the office of a justice shall not be abolished while there is a substantive holder in it.
Our legal system has been inherited from the British Common Law:
95.-(1) The Supreme Court shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law and such jurisdiction and powers as may be conferred on it by this Constitution or any other law.
Our democracy is built on the rule of law and us, the people, having enshrined in our Constitution our fundamental rights and freedom. But the only institution which can ensure that these are protected is an independent Judiciary. It is so important to be able to turn to the Judiciary to enforce our rights that access to a court is also one of our fundamental rights. Section 6(1) states:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.
Subsection 2 of Section 6 details a person’s rights before a criminal court and specifies all that said accused is entitled to – from time to prepare a defense to the right to an interpreter.
However, even before any authority from a tribunal to a court room, in non-criminal matters a person’s rights to a fair hearing is still protected. This is unequivocally stated at Sec. 6(7), thus even a school disciplinary board needs to give an accused person a right to be heard.
6(7) Any court or other authority prescribed by law for the determination of the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other authority, the case shall be given a fair hearing within a reasonable
time.
Our Judges
Now the legal system we operate in is nothing without the right men and women on the bench. Thus, one way of ensuring that the persons who are appointed judges are not held to ransom by any political power, capitalist interest or corrupt drug dealers and criminals, is to ensure that their tenure is secure. Of course, the issue of due compensation is another issue for another time.
Thus at Section 97 it states that the Chief Justice shall be appointed by the Governor-General, acting in accordance with the advice of the Prime Minister given after consultation with the Leader of the Opposition. What is “consultation” needs to be defined in our laws, since it was the basis on which February 17, 1999, Chief Justice Manuel Sosa was unceremoniously removed.
Then at Sub-section 2 it outlines how the other Justices must be appointed – that is, be appointed by the Governor-General, acting in accordance with the advice of the Judicial and Legal Services Section of the Public Services Commission and with the concurrence of the Prime Minister given after consultation with the Leader of the Opposition.
In my humble opinion – this still lends room for favoritism and truly, the Opposition has no say. Plus, between GOB and the Opposition, the usual political bantering will occur, so there should be an independent third party to have a professional input. However, unfortunately, the Bar Association is seen as so politically divided that they are not seen with the credibility that they must be seen with – even if it is only a matter of wrong perception, they just need to work on the public confidence.
Then again, maybe only a matter of wrong perception, the Legal Service Commission and Public Service Commission have the majority of their members appointed by the government of the day, and so are seen as only fulfilling the wishes of the government of the day. This does not mean that deserving people are not appointed – it only means that there is room for maneuvering and an already cynical society to have less faith in the fairness of the process.
About Justice
Now for us to truly believe in justice, we need to feel that even the people who are to dispense justice are treated justly. Thus, it is important to know what security of tenure they have to make them feel safe enough to do the right thing. But note, that while the law can legislate some of these checks and balances – it surely cannot legislate integrity, propriety and honesty – either you have it, or you don’t, so judges must bring that with them. If they do not have it, then do not expect that by virtue of being on the bench, they will acquire it.
Thus Section 98 seeks to offer that security. By setting the age of retirement at 65, it was to ensure that other than for misbehavior and inability to perform his functions, the judge did not have to worry about being pressured out of office by having a contract hanging over his head. However, the age of 65 is only a partial protection, since for the judge’s tenure to be extended after 65, he will be at the mercy of the political directorate again.
In the case of the Chief Justice, he can only continue in office if the Prime Minister after consultation with the Leader of the Opposition tells the Governor General to extend the appointment. And the other judges get the extension of such appointment upon the advice of the Judicial and Legal Services Commission with the concurrence of the Prime Minister and in consultation with the Leader of the Opposition. The Bar Association, through its representative on the commission, has a say, but it is not enough to stop the appointment.
But Section 98 goes a step further; it creates an opening to allow the Chief Justice to remain in office a little after his birthday, not so much to safeguard him, but to ensure that persons whose cases he is dealing with do not have their matters abruptly disrupted. It reads:
98(2) “Notwithstanding that he has attained the age at which he is
required by or under this section to vacate his office, a person holding the office of a justice of the Supreme Court may continue in office for so long after attaining that age as may be necessary to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before him before he attained that age.”
Those who surely do not know the reality of the job need to know that it is a very tedious job for those who take their work seriously and honourably. Also, Belizeans cannot begin to comprehend the magnitude of the workload cast on them, especially as Belizeans learn more about their rights and seek access to the courts, which is the right they have enshrined in our Constitution.
Thus, it matters not what anyone’s interpretation of how the Chief Justice should leave office is; ultimately, it is Section 98, which is unambiguous, that sets the standard. This therefore means that up to the last day before his birthday, the CJ can take on new cases, which he will be allowed to complete and then demit office, thus the provision in Subsection 2.
I end by reminding all what the Constitution, the ULTIMATE bastion of justice in this country, says at Section 2:
“This Constitution is the supreme law of Belize and if any other law is inconsistent with this Constitution, that other law shall, to the extent of the inconsistency, be void.”
It may be time to reconsider how our Justices are appointed, and we must do so with a view to ensure maximum protection from political interference, and it should be in such a way that the least competent are not appointed and allowed to sit in office and dispense “injustice.”