Court agrees with Bar and calls for security of tenure for judges

The Bar Association of Belize has won a landmark case against the government of Belize with wide ranging implications for judges of the Supreme Court and the Court of Appeal as well as the public at large. Today, Justice Oswell Legall ruled to overthrow government’s sixth amendment to the Constitution which effectively allowed the executive to determine the term of service of judges. The challenge was mounted by the Bar Association in 2010, with Justices Elliot Motley and C. Dennis Morrison as parties to the litigation, and though it is long in coming, the Bar Association says it is a vindication of the Association’s long held belief that judges must have security of tenure. Freelance reporter Mike Rudon sat down with two of the attorneys for the Bar Association today and got the story.

Mike Rudon, Reporting

The sixth amendment to sections fifteen and sixteen of the Constitution asserted firstly that if no term of service was specified in the instrument of appointment of a judge, his term would then be seen to be one year; secondly, that any appointment of a judge after the amendment would be seen as a one year appointment and thirdly, it allowed government to appoint a judge without stating a term of service, meaning that the length of service would be at the whim of the executive.

Eamon Courtenay

Eamon Courtenay, Attorney for the Bar

“The Bar took a decision that it should challenge this amendment. The basis of the challenge was essentially that any judge appointed to the Court of Appeal must enjoy security of tenure in order that he or she can be regarded by the litigating public and the public at large as being independent and impartial, and a person cannot by definition be regarded as an independent judge if he or she is serving for only one year, especially when he or she will be hearing cases brought by the government, or against the government. This morning Mr. Justice Legall handed down his decision and agreed with the Bar and declared the amendment to section fifteen and sixteen unconstitutional, so you can no longer have these short term appointments.”

Andrew Marshalleck, Attorney for the Bar

“That’s a principle I think that no lawyer would argue with, that judges should be independent or impartial. Translating the principle into practice is where the disagreement normally comes into play. What I think Justice Legall makes very clear is that a very short appointment such as a one year appointment is clearly unacceptable and clearly does not meet the requisite standard.”

Andrew Marshalleck

And while the judgment of Justice OswellLegall will directly affect only Justices Elliot Motley and C. Dennis Morrison, it is an important decision with very distinct and wide ranging implications.

Andrew Marshalleck

“The direct impact of it is that the appointment of Mr. Justice Morrison goes back to what it was, and had the president, Mr. Elliot Motley, not resigned, his appointment would have reversed in a like fashion. So the impact of the amendment was on those two specific appointments, but the decision is more important for its wider effect and its recognition that these short term appointments can’t serve the constitutional requirements of independence and impartiality.”

Eamon Courtenay

“What the judge has said is that it is his opinion that a judge, to enjoy security of tenure, should be appointed up to the age of seventy-five. It seems to us that this judgment has vindicated a position that has long been held by the Association that judges both at the Supreme Court and at the Court of Appeal should not be appointed for contracts of one year or two years or three years…even four years. There is no reason why you do a vetting of a judge, find that he or she has the qualifications, find that he or she has the expertise and the independence and integrity…you must appoint that person with security so that person should never have to wonder whether or not if I give a decision one way or the other somebody will be annoyed with me, upset with me and my continued service would be in question. It is also very important for the public. When you are standing before a judge of the Supreme Court or the Court of Appeal that you don’t have to wonder whether this judge is on a long contract or a short contract, whether your decision is going to be affected because this judge may think…if I rule one way, they may not renew my contract. That essentially is what is called independence and impartiality and it can only be achieved by security of tenure. The sixth amendment which allowed specifically for government to ensure one year appointments can no longer stand, and I think the impact of the decision is that government ought to consider even those judges who are sitting with appointments of two years and three years and four years, whether or not they are sufficiently independent and impartial.”

Courtenay took the opportunity to cite the case as only one example of how the Bar Association does work to defend the public interest.

Eamon Courtenay

“I will take this opportunity, of course, to say that there were five attorneys acting for the Bar. Mr. Marshalleck, myself, Godfrey Smith, we also had Jackie Marchalleck who was president of the Bar when this thing started and we also had Magali Marin-Young. And this is but one example of issues, where the Bar takes up issues in the public interest and this is why we were saying that it is a bit disappointing for us when criticism was leveled at the Bar. In fact we do things, free of charge, in order to serve the public interest.”

Mike Rudon for News Five.