SUPREME COURT JUSTICE CHALLEGES GOVERNMENT

C O N F I D E N T I A L NASSAU 001712 SIPDIS SIPDIS STATE FOR WHA/CAR RCBUDDEN, INL/LP E.O. 12958: DECL: 11/13/2016 TAGS: PGOV PHUM PREL KDEM KJUS SUBJECT: SUPREME COURT JUSTICE CHALLEGES GOVERNMENT INFRINGEMENT ON JUDICIARY Classified By: Deputy Chief of Mission Brent Hardt for reasons 1.4(b) and (d) ¶1. (C) SUMMARY: In two rulings November 7, a Bahamian Supreme Court Justice lashed out at the Government in a forceful assertion of judicial independence, initially generating fears of a temporary shutdown of the Supreme and Magistrate courts. One ruling challenged the Attorney General's implementation of her "Swift Justice Program," which creates short-cuts in prosecution of a case and evaluates judges for their conviction rates and speed. Another ruling declared the Supreme Court -- and by extension the lower Magistrate Courts -- unconstitutionally subject to legislative pressure as a result of Parliament's failure to call for a review of judicial salaries. While the courts have thus far continued to operate with only minor disruption, the issues raised by the justice's rulings have not yet been addressed by the government. Simultaneously, the Bar Council submitted a list of salary and benefit demands on behalf of judges to a stunned Government. As election season approaches, the move on salaries could be seen as similar to industrial action by teachers, electrical and other government workers looking to leverage salary increases from a Government hoping to gain reelection support. However, the constitutional issues raised are significant and go to the heart of judicial independence. END SUMMARY. Swift Justice Initiative an Attack on Judicial Independence? -------------- -------------- ¶2. (U) In the first of two recent rulings that sent shock waves through the Bahamian political system, Justice John Lyons hit out at the government's "Swift Justice Program" -- established earlier this year by the Attorney General to decrease delays in trials by auditing the judiciary, rating judicial performance and creating procedural shortcuts in prosecution. Calling the program an attack on judicial independence and meddling by the Executive Branch, Justice Lyons returned nine cases to the lower Magistrate Courts for lack of appropriate prosecution and prosecutor failure to provide the Court and defense sufficient time and information to prepare. Lyons said he was particularly concerned that the Attorney General's Office reviewed judges based upon convictions rather than fairness while creating shortcuts in due process. Bristling at the Attorney General's recent press release noting her improvement of Government agency efficiency in convictions, Lyon's opined: "The Judiciary is not an agency of Government. It is an independent body established under the Constitution. The role of a judge is to ensure a fair trail. . . . A judge is never to be judged by a conviction rate." Parliamentary Refusal to Provide Salary Review Shuts Down Courts -------------- -------------- ¶3. (U) In his second ruling, Lyons ruled that the Supreme Court was unable to issue fair rulings because of Parliament's repeated refusal to appoint a compensation committee to review judicial salaries. The Judges Remuneration and Pensions Act requires that Parliament convene a panel to review judicial salaries at least once every three years, but Parliament has not done so since 2000. Lyons called this an attempt to influence the courts and said, "[i]f this was a deliberate attack by Cabinet, then (and there is no dull edge to this) this must be considered a deliberate attack on the independence of the judiciary. And that, in turn, is an attack of the fundamental constitutional rights enjoyed by all persons in this country." Following his ruling, the Magistrate court judges made conflicting announcements regarding the ability of the Magistrate courts to operate. However, the courts have continued to operate normally, if a bit uneasily. Lyons and other judges have called for a constitutional change to remove the issue from the purview of Parliament. ¶4. (U) The same day as Lyon's rulings, the Bahamas Bar Council filed suit supporting Lyon's claims about failure to follow the Remuneration and Pensions Act in 2003 and 2006 and the lack of separation of powers created by Parliamentary power of the purse. The suit requests that the judges be paid better than the Prime Minister, and further requests housing allowances, increased pensions, automobiles, housing staff, chauffeurs and full-time personal security guards. The Government had no substantive response to the demands other than reassert its commitment to an independent judiciary and reassure the public that courts will continue to function. NOTE: The detailed papers of the lawsuit, presented when Lyons' ruling was made public, were clearly drafted in advance of Lyon's rulings and part of a coordinated effort to address judicial salary demands. Placing the matter of judicial compensation before a judge also creates an end-run of Parliament likely to elicit a response. END NOTE. Election Year Money-Grab, True Constitutional Crisis or Both? -------------- -------------- ¶5. (C) COMMENT: The action of the judiciary may be in part a calculated industrial action aimed at increased pay and benefits. As elections approach, teachers, electrical workers, nurses and other government workers have all successfully leveraged the Government for salary increases through threatened industrial action that would mar reelection bids. Thus the ruling and coordinated Bar Council suit can be seen an election-year salary bid by yet another set of government workers. That said, Parliament's intrusions into the judiciary are notable, particularly the Swift Justice Initiative and Bahamian prosecutor's efforts to take control of judicial procedure. Combined with Parliament's apparent use of the Judicial Remuneration Act to exert influence, judicial action is more than a simple industrial action -- it is a sign of a healthy democracy with an independent judiciary insistent upon its rights. The rulings have already given rise to calls for another minister to be given responsibility for supporting the judiciary to draw a clearer distinction between the law enforcement role of the Attorney General. At a minimum, the episode has left one more impression of a government that has overstepped its authority, which could generate fallout at the polls when elections are called early in the New Year. END COMMENT. ROOD