Andrew Marshalleck
The Prime Minister currently has power to recommend the appointment of judges to the Court of Appeal, after consulting with the Leader of the Opposition, while the Judicial and Legal Services Commission has power over appointments to the Supreme Court. More importantly, by making only recommendations and not orders, Marshalleck concedes that only when the C.C.J. receives a case under the terms of the amendment could it rule specifically. But he argues that the Government should not run that risk. Marshalleck says that the ruling governs appointments going forward and the result is a safeguard against threats to judicial independence, such as performance for renewal.
Andrew Marshalleck, Represented Bar Association
“The one-year appointments were frowned upon and there was only one instance when I think, according to what they say, it would be permissible and that is where after a judge reaches retirement age and a commission is appointed, a commission can consider that kind of short, fixed-term appointment for that kind of judge. Otherwise it should not be pursued; undermines independence and impartiality of the court. So given that the object of the challenge was to provoke reform in the manner in which judges of the Court of Appeal are to be appointed, we think that the challenge has been most successful and will benefit everyone at the end of the day, which was the object of the Association. Where we are is that the short-term appointments afford the opportunity for renewal and the decision to renew can be perceived as a gift from the Executive, if you behave appropriately. And this affects the appearance of independence and impartiality of the court—and I say appearance because there are two aspects to independence and impartiality. There is the actual independence and impartiality of the particular judge and there is also the appearance of independence and impartiality to the objective observer looking at how the court is operating. And where we are, we are talking about the appearance of impartiality; we haven’t attacked or sought to impugn the independence or impartiality of any person. We’re saying that given the way things were happening and the provisions and the law, it would appear to the impartial observer that the Court of Appeal lacked the requisite independence and impartiality required by the Constitution. That was rejected by the court, but while rejecting it on the one hand, it accepted on the other that there are serious concerns about what is taking place and that it needs to change.”
The ruling was unanimous. Senior Counsel Denys Barrow and Naima Barrow appeared for the Government, replacing the late Michael Young. During the delivery of the judgment it was noted that Justice Nelson, a founding member of the Court, was approaching retirement himself and this would be his last case on the C.C.J. bench.