Identifier
Created
Classification
Origin
06NASSAU1712
2006-11-15 16:11:00
CONFIDENTIAL
Embassy Nassau
Cable title:  

SUPREME COURT JUSTICE CHALLEGES GOVERNMENT

Tags:  PGOV PHUM PREL KDEM KJUS 
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RUEHGE/AMEMBASSY GEORGETOWN 3588
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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)


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