POLITICAL INTEREST IN JUDICIAL APPOINTMENTS:
A CASE FOR REFORM
By: E. Andrew Marshalleck
Like many official acts in the public interest in Belize, the appointment of judges
to the Supreme Court of Belize attracts little or no meaningful public attention,
any public commentary being limited to obvious political rhetoric and casual
editorial remarks presented under the guise of daily news. Meaningful public
attention will generally come only after the ill effects of a poor appointment are
directly felt by a sufficiently large number of people notwithstanding that judicial
appointments are obviously of critical importance to the country as a whole.
The Belize Constitution is founded on the principle of separation of powers
which requires that the judiciary be independent from the executive branch of
government. The separation of powers is indispensable to the proper working of
the Constitution and by extension to the proper functioning of a democratic
society. This separation is considered of such importance and so complete that
in one Caribbean jurisdiction the Chief Justice required that government licence
plates be removed from all vehicles used by the members of the judiciary and
replaced with a new ones marked “judiciary”.
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The separation of powers is sought to be secured by the Belize Constitution (and
others like it) by conferring on judges security of tenure so that judges cannot be
removed from office at the whim of the executive. A judge then cannot be fired
for not doing what the executive wants done, at least not openly.
While in theory the constitutional framework should safeguard judicial
independence, in practice true independence comes only by way of quality
appointments to judicial office. This becomes obvious when it is recognized, as it
must, that a constitutionally appointed judge with minimal skill can pander to
executive will effectively yielding judicial power unto the executive through his
exercise of the powers of office. The motive for so doing has in the past varied
from a simple sense of loyalty to a political party to a more selfish desire to
secure favours from the executive effectively in exchange for decisions.
The scope for such subversion of the Constitution lies in the slippery concept of
justice coupled with the complexity of legal reasoning and jargon. Neither the
concept of justice nor the process for achieving it is precise, much less scientific.
There is always scope for argument and the attraction of arguments changes
with culture and time. It would accordingly be entirely uneventful if five identical
claims with identical evidence presented before five different judges at different
times result in five very different decisions all doing “justice” between the parties.
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The personal disposition of a judge undoubtedly plays a role in his decision
making and there is often adequate scope for a personal agenda within the loose
confines of legal principle and reasoning as well as of “justice”. In fact judicial
talent may well lie in an ability to balance competing interests within established
legal principle and notions of justice.
The foregoing is no secret and it has therefore been of historical importance to
governments in many countries to appoint to judicial office persons subject to
control or at the very least persons sharing government’s disposition on various
issues.
In the U.S., for instance, when President Barack Obama recently
proceeded to make a number of judicial appointments, the ideology of
prospective appointees was openly discussed and it was publicly debated
whether an appointee’s appointment would assist or detract from the
government’s agenda. Consideration of the competence of prospective judges
and any willingness to do justice often take a back seat to considerations of
political expediency in making appointments.
This may well fuel a tacit
acceptance that there is in fact no justice and that the concept resides in
perception only.
In Belize, absent the public debate, the same considerations have applied and
continue to apply when making judicial appointments. Successive governments
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have sought to appoint judges they believe they can control or who they are
convinced are sympathetic to the policies of the administration then in power.
The practice subverts the constitutional framework and, like political decisions
generally, is motivated by an overwhelming desire to cling to power. Such
decisions are hardly in the interest of the noble objectives set forth in the
Constitution. The need for constitutional reform stripping the power of judicial
appointments from politicians is therefore manifest.
The approach in many jurisdictions has been to make judicial appointments by
way of a judicial services commission on which executive officers serve but do
not control. The Belize Constitution has adopted this approach in part but the
Judicial Services Commission in Belize has itself, like other supposedly
independent institutions, been historically controlled by the executive. In any
event, the Commission gets no say whatsoever in relation to the appointment of
the Chief Justice of Belize. That is by the terms of the Constitution reserved for
the politicians.
It is clear that opposition politicians just as those in government also have a
direct and obvious personal interest in judicial appointments. As explained by Dr.
Kenny Anthony, the former Prime Minister of St. Lucia and a former member of
the faculty of law of the University of the West Indies, in a recent television
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interview, a culture of non cooperation between the Executive and the Opposition
has moved the battleground for opposition into the Courts. This of course is not
news in Belize where government decisions have been and continue to be
regularly challenged in court for political reasons. The Opposition then is always
keen to ensure that the playing field in the Courts remain at least level in the
interest of politically laden legal challenges just as the executive is keen to keep
it favourable. This latter proposition has held true regardless of which political
party has been in power in Belize so much so that party advocates for both sides
may well now be regarded as hypocritical. Doing the right thing after all is always
easier said than done.
The current Chief Justice of Belize, Dr. Abdulai Conteh, reaches the age of 65
years on 5th August, 2010. By the provisions of Section 98(2) of the Belize
Constitution he holds office of Chief Justice until he reaches age 65 and, unless
the Governor General permits an extension, he continues in office thereafter only
for the purpose of dealing with matters commenced before him before he
attained that age.
The Governor General is to permit an extension of Dr. Conteh’s tenure in
accordance with the advice of the Prime Minister given after consultation with the
Leader of the Opposition. While extensions have been readily available to other
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judges, the Prime Minister has clearly indicated that he will not be advising the
Governor General to permit Dr. Conteh to continue in office past the age of 65
years.
Dr. Conteh has clearly fallen out of favour with the Prime Minister
although no reason has been offered for not extending Dr. Conteh’s tenure in
office. As soon as Dr. Conteh is finished with pending matters before him he shall
therefore be vacating the office of Chief Justice and a new or acting Chief Justice
will have to be appointed.
The Belize Constitution provides that the Chief Justice is appointed by the
Governor General acting in accordance with the advice of the Prime Minister
after consultation with the Leader of the Opposition. Given the political culture
that exists in Belize, which well exceeds the culture of non cooperation referred
to by Dr Anthony and more closely resembles personal animosity, the Prime
Minister will entirely have his way with the new appointment. In the absence of
the necessary reforms to the constitutional provisions governing judicial
appointments in Belize, only history will tell whose interests the appointment will
have ultimately served. My guess is that the appointment will be in the current
legal interests of the ruling political party. What’s yours?
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