Hugh Small, QC, a former Justice of the Supreme Court of The Commonwealth of The Bahamas, recently spoke to Earl Moxam, Special Assignments Editor, on the matters of judicial salaries and whether judges should be free to express their views on certain matters of public interest.
The interview arose after The Gleaner reported that Chief Justice Bryan Sykes had "rebuked" Supreme Court Justice David Batts for writing a letter, published in The Gleaner, concerning the matter of judicial salaries.
Justice Batts, in his letter, had challenged the notion that a recently announced increase in judicial salaries was in keeping with the recommendation of the Ninth Independent Commission set up for that purpose.
Chief Justice Sykes, in his response to the publication of Justice Batts's letter, was quoted saying "It sets an undesirable precedent. It also demonstrates a lack of collegiality," after he had privately advised his colleague against writing the letter.
Some other members of the judiciary have reportedly disagreed with the Chief Justice on the matter, with one telling The Gleaner "Judges cannot be muzzled by anyone and have a democratic right to speak out or make a correction as long as it is within the confines of the law."
Below is the transcript of the interview in which Mr Small shared his perspective, starting with his opening comments:
SMALL: Let me start by expressing my own view. The issues that have arisen in this matter are issues that have arisen in many Commonwealth jurisdictions. To my certain knowledge, there was in The Bahamas at the time when I was appointed a judge of that court, and assurances had been given to the President of the Court, who was then our own Eddie (Edward) Zacca (former Chief Justice of Jamaica), that whatever recommendations were made by the Commission would be implemented in full, and the President of the Court Appeal, as he was, urged me to accept the appointment that had been offered to me by the Judicial Services Commission, on the basis that the then low salaries would be significantly improved. When the matter came before the Cabinet of the Bahamas, they did not implement the Commission’s recommendations, but only 15 per cent of what had been recommended.
The issue also came up in the courts of British Colombia about ten or eleven years ago, and came back before the courts of British Colombia and the Supreme Court of Canada, and as recently as last year the Supreme Court of Canada pronounced on the matter.
So, I think it’s very important for us to understand that these issues are issues that have arisen in other jurisdictions like our own that are constitutional democracies.
In the judgment of the Supreme Court of Canada… last year they had other matters to consider, and specifically whether or not the minutes of the Cabinet meeting should be disclosed. But on the issue of judicial independence, they said as follows (at paragraph 31 of their judgment):
“The three core characteristics of judicial independence are security of tenure, financial security and administrative independence. The characteristic at issue in this appeal – financial security – in turn has three components ‘which all flow from the constitutional imperative that the relationship between the judiciary and other branches of government be de-politicised’. First, absent a dire and exceptional financial emergency, precipitated by unusual circumstances, a government cannot change judicial remuneration parameters without first seeking the recommendations of an independent body – a commission; secondly, judges cannot engage in negotiations with the government over remuneration; and finally, judicial remuneration cannot fall below the basic minimum required of the office of a judge.”
MOXAM: Are there circumstances in which the authority of the Chief Justice could be undermined by another judge speaking out in public on a particular matter? How would you view this particular issue in that context?
SMALL: The Chief Justice is the constitutional head of the judiciary. He’s also the chairman of the Judicial Services Commission that makes judicial appointments, and obviously some deference must be extended to him in respect of those offices. I think there is room for differences of opinion on questions of what are appropriate judicial salaries. If it is that the Chief Justice was reluctant to speak out on the way in which the government had treated the recommendations of the commission then unless there’s a collegiate agreement among the judges that no one will speak on the matter, I don’t think that a judge speaking on the matter undermines the authority of the Chief Justice. Each of them and all of them are affected by the decision and I think there’s need for collegiality, that is to say not only to respect the fact that the Chief Justice is the head of the judiciary but also for there to be a tolerance towards there being different points of view amongst the judges.
MOXAM: Not to belabor the point, but it seems that the Chief Justice, having expressed his views on the matter privately to Justice Batts, seemed to have been taken aback by the fact that Justice Batts went ahead with his letter to the Editor on the matter. Does that change, in any way, your views about collegiality and tolerance for differing views?
SMALL: If the Chief Justice expressly said to Justice Batts that he thinks that in the circumstances it would be inappropriate for him to make an individual statement, then I think Mr Justice Batts ought to have respected that, because what we don’t want to see is where each and every judge just speaks on his or her own behalf on the question of judicial salaries. I do think that this puts a great focus of public attention on the difficulties of managing the judiciary and also the difficulty of judicial officers having to restrain themselves on matters that are of public importance.
MOXAM: Principle and practices evolve over time, even within in a tradition-bound field such as the judiciary. Do you think that this matter will now cause some sort of reflection, introspective, and perhaps a conscious decision to make certain changes?
SMALL: I think that we need to reflect on the time in which we are now. The resources that are available to the central government are severely limited by the slowdown in the economy and the overall global recession that has been caused by the pandemic, and the review of judicial salaries this time has to be taken into account, in the context of the review of all other salaries that are paid out of the Consolidated Fund. I’m not sure that what has happened in this particular instance is going to have any long term impact; however it of some importance I think that the whole way in which judicial salaries are reviewed should be made more transparent, and that the recommendations which are made by the Commission to the executive arm of government should be made public, because no doubt these recommendations are principally about salaries, but they also perhaps have other implications for the public purse in non-salary matters.
MOXAM: If nothing is done substantially, going forward, in respect of judicial salaries, is there a risk of not being able to attract top talent in this very important field?
SMALL: In recent years there has been a continuation of a tendency that developed just after Independence; in fact there has been an acceleration of a tendency to have judges appointed who have most if not all of their professional experience in the public bar, either as prosecutors or as lawyers in the Office of the Attorney-General, which advises the government. One of the things that we need in the judiciary is diversity. We need judges who have had practical experience in all aspects of law prior to their assuming judicial appointment. We also need to ensure that there is a better balance of gender. There was a time when we only had male judges, and this changed; there was a kind of balance but today very few men are seeking appointment to the bench, and this is a matter that should be of concern. I’m not sure the extent to which salary is the only consideration but it is very important to ensure that we have salaries that will entice those members of the bar who have had successful practices and who want to serve in a judicial capacity, that will entice them to give up remunerative work private practice and give service on the bench at different levels in our country.
Please click on the audio icon above to access Earl Moxam's interview with Hugh Small, QC.