“a judge should be free from governmental and political pressure likely to affect, or perceived to affect the judge in exercise of his judicial functions.”
“…governmental power must be exercised according to law”
In a major ruling handed down on Friday, April 19, 2013, Supreme Court Justice Oswell Legall overturned a portion of the Belize Constitution Sixth Amendment, particularly sections 15 and 16, which the judge found to be “unconstitutional, null and void,” and which he furthermore found were contrary to clauses in the Constitution that assure justices of the Court of Appeal security of tenure and which mandate the government to observe the rule of law.
The provisions are intended to ensure that judges don’t show undue bias in favor of the government when cases to which they are party come before the court; but they are also intended to foster and maintain public confidence in the judiciary.
However, Justice Legall demonstrated how confidence in the judiciary could be eroded by the new provisions of the Constitution, because with the change of Court of Appeal appointments to as short as one year, a judge may feel “political or governmental pressure” to get an extension beyond a year and may therefore comply with the wishes and dictates of the executive—in this case, the Barrow administration.
At the time the Sixth Amendment took effect, there were four sitting justices: Denys Barrow, SC, who was hired until he is 75, but who left the Court of Appeal early, in January 2011, to return to private practice and who now serves as government’s lead private attorney; Dennis Morrison, who was last issued an appointment in 2004 but reappointed in 2011 to serve another four years; Justice Manuel Sosa, the new president, who has an appointment instrument until age 62; and former Court of Appeal president, Elliott Mottley, whose appointment instrument, like Morrison’s, had no specified duration and who resigned in protest five months after the Sixth Amendment.
Mottley had tendered his resignation in October 2010 after learning from an unofficial source that the Barrow administration had moved ahead with major changes in the Constitution that would directly impact on their tenure of service by reducing the appointment, in his case, to one year from the date the law was changed.
The Sixth Amendment introduced a clause that said that where no date is specified on the instrument of appointment, those judicial appointments would be for only one year. At the time, two of four justices on the bench, Mottley and Morrison, had such appointments.
Government had argued in court that the appointments for Mottley and Morrison were “acts of nullity” because no such open-ended appointments could have been made. It went on to claim this was done in “sheer inadvertence…an error that went unnoticed.”
The court lamented that new instruments were not made to correct what Government claimed was a mistake; Legall noted that the constitutional amendment caused the then Court of Appeal president to resign effective December 31, 2010.
Justice Mottley, who first came to serve in Belize in 1999, had said publicly on his departure that he was resigning after having received information from the former Chief Justice, Dr. Abdulai Conteh, that the new amendment places a 1-year limit, as opposed to the prior lifetime tenure implied in the Constitution.
Of note is that the changes to the Belize Constitution were actually put into effect in April 2010, 5 months prior, and it meant that the appointments of Mottley and another Court of Appeal judge, Dennis Morrison, would expire in April 2011 and renewed only if the Prime Minister recommends that renewal to the Governor-General.
Legall said, in Friday’s ruling, that it “would be perceived by any reasonably well informed observer that the executive pressure was being put on the judge,” and “to that observer, the judge may reasonably be perceived as not independent and impartial.”
The Belize Bar Association challenged the constitutionality of the provisions of the Sixth Amendment in the Supreme Court, and Legall issued the stinging decision in their favor on Friday.
“This is a very important ruling, as it upholds the Rule of Law and is a vindication of the Association’s position, long held, that short-term appointments of judges undermines the independence and impartiality of our courts,” said Eamon Courtenay, SC, president of the Bar and lead attorney for the case.
Legall asserted, in his ruling, that “…governmental power must be exercised according to law.”
He also emphasized that “a judge should be free from governmental and political pressure likely to affect, or perceived to affect the judge in exercise of his judicial functions.”
Legall urges a change in the way justices are appointed. He said that judicial appointments should be recommended by an independent body drawn from organizations that are, likewise, independent.
“Politicians, whether on the Government or Opposition sides, should have no legislative authority in the process of appointing judges, because such authority can be perceived by reasonably well informed Belizeans to have some effect on the independence and impartiality of judges,” Legall said.
He added that perhaps the time has come for Parliament to revisit Sections 97(1) and (2) addressing the appointment of Justices of Supreme Court and 101(1) of the Belize Constitution, addressing appointment of Justices of Appeal.
The first subsection says 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.”
The second says that “Justices of the Supreme Court other than the Chief Justice shall be appointed by the Governor-General, acting in accordance with the advice of the Judicial and Legal Services Commission and with the concurrence of the Prime Minister given after consultation with the Leader of the Opposition.”
The third stipulates that, “The Justices of Appeal 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…”
In all cases, the major political powers have substantial say in who gets appointed and for how long.
Courtenay told us, however, that Opposition Leader Francis Fonseca had indicated at the time new appointments were made in 2011 that he was concerned over the short-term appointments that were being made. Apart from Morrison, Justice Douglas Mendez was appointed until 2014 and Justice Samuel Awich has reportedly been given an even shorter term, said Courtenay.
Courtenay said that a primary issue the court highlighted was security of tenure for the justices of the Court of Appeal, indicating that judges should have security of tenure until retirement age.
He also told us that the court could be moved to revisit rulings by judges who do not have such security of tenure and there are legal precedents for such challenges to be put to the court.