CCJ Sides with Government Whilst Issuing Strong Recommendations on the 6th Amendment

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Updated: February 16, 2017

The Caribbean Court of Justice yesterday made a ruling regarding the constitutional motion filed by the Belize Bar Association as it relates to the appointment of a Justice of Appeal.  The Bar’s argument was that the sixth amendment was unconstitutional and violates the rule of law, the separation of powers principle and the basic structure of the Constitution of Belize.  The CCJ dismissed the claim yesterday; that dismissal was accompanied by strong recommendations as they relate to the appointment and the tenure of Justices of Appeal with an aim to provide them with security of tenure and a selection process outside Government’s influence.  One point of contention for the Bar was the one-year appointments to the Court of Appeal which they noted undermined the security of tenure, politicized appointments and re-appointments and takes away from making the Court of Appeal independent and impartial.  The Government rebutted by saying that the move was done merely to correct alleged invalidity of the appointments of two sitting judges and to prevent the future appointment of judges with no specified period of tenure.  In its judgement the CCJ noted several points including that while the re-appointment of judges by the Government ‘lends fragility to judicial independence’, the amendment could not be deemed as unconstitutional as the power to reappoint judges did not derive from the amendment.It agreed with the Belizean Court of Appeal’s findings and ruled also that the Sixth Amendment was not a removal provision. The Court noted that neither of the two judges, who would have been affected, had been removed from their posts.  They added that although they have come to the conclusion that the impugned (Sixth Amendment) legislation as such is not unconstitutional, it is clear that one-year appointments under the Constitution, thus amended, could be in breach of the Constitution, in particular section 6 subsection seven.  And with that they recommended a further evolution of the concept of judicial independence so that Justices of Appeal have the same security of tenure as Supreme Court judges. The CCJ added that Belize is moving towards a Court of Appeal Bench with non-resident fixed term judges serving alongside permanent Belizean appointees; adding that it is desirable that the executive system of judicial appointments in respect of resident and non-resident judges be replaced by an independent appointing body such as the Belize Judicial and Legal Services Commission that deals with appointments to the Supreme Court Bench.This independent Commission should appoint non-resident persons to the Court of Appeal until the normal retirement date or the extended retirement date of Supreme Court judges but would require non-resident judges to sit only as and when invited to sit by the President of the Court of Appeal.  The Court also recommended that shorter periods of tenure could be offered to appointees over the age of 75.  Arguing on behalf of the Bar were Senior Counsels, Eamon Courtenay and Andrew Marshalleck.