In a lengthy letter to the editor of The Bahama Journal, attorney Maurice Glinton claims that all new matters heard by Hon. Mr. Justice Maurice A. Churaman after he reached the age of 70 earlier this year are called into question.
But Bar Association President Wayne Munroe said that there are various interpretations of the article of the Constitution that has to do with judgesﾴ tenure and the Association would have to seek an opinion from a committee of senior legal minds before reaching any such conclusions.
Article 102 of the Constitution states that a Justice of Appeal may hold office until he or she attains the age of 68.
However, the governor general acting on the prime ministerﾴs recommendation after consulting with the leader of the opposition may permit a Justice who reaches 68 “to continue in office until he has attained such later age, not exceeding 70 years, as may have been agreed between them.”
In his letter, Mr. Glinton notes that, “The Constitution is precise as to the purpose for which a permitted extension of a Justiceﾴs tenure beyond 68 may be agreed with the governor general.”
He noted that it must “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.”
Mr. Glinton further asserts, “If a Justice of Appeal is to be permitted to continue in office beyond the age of 68 for any of the purposes which the Constitution specifies, an agreement to that effect between him (or her) and the governor general must have been in place prior to the Justice attaining his (or her) 68th birthday; and in no event is a permitted extension of that tenure, singularly or cumulatively, to exceed the point in time at which a Justice attains the age of 70.”
The governor general granted Justice Churaman, who was appointed in March 2000, an extension from the 15th day of February, 2003 until the 15th day of February, 2005, when he would have turned 70.
The governor general granted him a later extension to 31st July, 2005 to enable him to deliver judgment or to do any other thing in relation to proceedings that were commenced before he reached 70.
“I respectfully suggest by no strained interpretation of the relevant provisions of the Constitution can this attempt to prefer Justice Churaman be justified in law,” Mr. Glinton claims in his letter.
“What is beyond any doubt as to the effect, regardless of the stated purpose, is that the additional extension takes him over the five-year service in office timeline thereby qualifying him for an annual $90,000 pension.”
He also charged that new cases heard by the Court of Appeal consisting of Justice Churaman after February 15th, 2005 are called into question because “the Court was not only illegally constituted, but the decision in those cases are liable to be set aside.”
Mr. Glinton said, “This is particularly true for those cases in which the state or the executive branch of the government was an opposing party (as in practically all criminal appeals.)”
Mr. Munroe, in an interview with The Bahama Journal, said that the Bar Association is fully aware of the seriousness of the issue being raised by Mr. Glinton, a well-respected member of the Bar.
“His view on [Article 102 of the Constitution] is that thereﾴs a maximum age of 70,” Mr. Munroe said.
“There is another view that you could be extended beyond 70. It is a matter of sufficient importance that it is likely the Bar Council at its next meeting in September will seek to have a panel of senior seasoned lawyers in the area look at the issue and [deliver] a report.
“It is not a matter where it should be determined based on what my view is or any other individualﾴs view is. Itﾴs a very important issue and I agree that it requires deliberation by Bar Council as to how we ought to approach it.”
The Bar Association president was also asked to respond to Mr. Glintonﾴs conclusion that appeals heard by Justice Churaman after he reached 70 are in question.
“In this case, we will have to consider [this matter] because it involves one of the members of the judiciary and it is always important for us to make sure that the Bar is seen to be concerned with the administration of justice. The judge himself cannot weigh in on the issue nor any other judges for that matter,” he said.
“That is why itﾴs important for the Bar Council to look at it.”
Mr. Glinton said that this is a matter that the authorities must address.
“At the very least the Chief Justice and or the Attorney General ought to confirm and report to Bar Council (if not the individual attorneys concerned) the appeal cases which Justice Churaman participated in the hearing and determination of as a member of the Court during the period since 15th February 2005 with a view to securing a rehearing, if that is desirable, before an independent Courtﾅ” he wrote.
One of the proposed amendments to the Constitution in 2002 was for the extension of the ages at which judges are required to vacate office.
But that referendum failed.
Candia Dames, The Bahama Journal
