By P.J. Malone

Now that you understand the basis for the judicial review (from the last two Clifton Review articles “What A Hullabaloo” and “Hullabaloo Part II”) that Save The Bays brought against the Government of The Bahamas through their attorney and Director, Fred Smith, let’s get into some of the nitty gritty; first, here’s a few more details.

In addition to the initial judicial review we already discussed, Save The Bays filed several more judicial reviews against the Government of The Bahamas. So, there are approximately four more judicial reviews—I stand corrected.

As a reminder, in Judicial Review 1, The Rt. Hon. Perry G. Christie, Prime Minister of The Commonwealth of The Bahamas—in his capacity as the Minister Responsible for Crown Lands—is named as the first respondent, as well as in other judicial reviews that were filed.

In January of this year, the Prime Minister, through his attorneys, filed an application requesting that the Judge, who has been assigned to all of the Judicial Reviews, recuse herself from presiding over the Judicial Review cases.

The Recusal Application explained that “Her Ladyship has reached the age of retirement for a sitting judge in the Supreme Court of The Bahamas.” The basis for their information is that the Chief Justice of The Bahamas stated at the opening of the legal year that “Her Ladyship has applied for an extension as a Supreme Court Judge of The Bahamas.”

The attorneys assert the following as a part of the “Facts” of their application:

“That the pay and benefits paid by the public purse to a serving and sitting Supreme Court judge is higher than that paid by the public purse to a retired Supreme Court Judge.

“That the First Respondent is being asked to give Her Ladyship a pecuniary benefit, or put another way the request put to the First Respondent, if granted, would result in a pecuniary benefit.”

Pecuniary as defined by dictionary.com is “of or relating to money; consisting of or given or exacted in money or monetary payments”.

The attorneys expounded further in the section titled “The Law”:

“The law in this area is clear on the issue of recusal. The authorities referenced herein show that where there is a pecuniary interest involved, the judge is automatically disqualified.

“The general thinking is that if an informed and balanced member of the public were to be enlightened to the facts surrounding the issue, and where the informed and balanced member of the public would or may conclude bias was apparent and unavoidable, as circumstances exist that give or may give rise to justifiable doubts as to impartiality. Those doubts about impartiality may involve apparent bias, not actual bias, but can include unconscious bias. Then in those instances, it is appropriate for the judge being asked to recuse, to do so.”

The attorneys reference a few cases to support their argument. They also stated, “We submit that the First Respondent’s application for recusal is of moment and one that ought to be considered as being valid in the circumstances. It is said that judicial recusal occurs when a judge decides that it is not appropriate for him to hear a case listed to be heard by him.

“A judge may recuse himself when a party applies to him to do so. A judge must step down in circumstances where there appears to be bias, or, as it is sometimes put, “apparent bias”. For the reasons as mentioned herein, it is said that judicial recusal is not then a matter of discretion.”

The attorneys for the Prime Minister also represented the other 4 Government Respondents who, as it states, do not oppose the application for recusal.

As expected, Save The Bays presented its counterarguments to the Prime Minister’s application during last week’s trial to decide the matter.

A decision is expected by the Justice in this matter any day now.