An appeal heard today in the current session of the Court of Appeal hits home for that court, concerning as it does the issue of security of tenure for judges appointed to sit there. In April of 2013, then-Supreme Court Justice Oswell Legall ruled for the Bar Association of Belize, concerning an amendment to the Constitution varying the length of appointment for judges of the Court of Appeal which directly affected two interested parties in the case: former President of the Court Elliott Mottley and appeal judge Dennis Morrison. Both had already demitted office at that time although Morrison would later be reappointed. Justice Legall used the ‘basic structure’ doctrine to declare unconstitutional the Barrow administration’s closing open-ended appointments to the Court to one year in the case of both judges and further declared that the age limit for appointment of judges to the court should be 75. The Government of Belize vehemently disagreed and vowed to vigorously appeal the case. That appeal came up today. Senior Counsel Michael Young represents the Government.
“Essentially, our position is that the basic structure ,in relation to the appointment of justices of the Court of Appeal, was set from 1981 when the Independence Constitution was prorogated. The amendments which were comprised in the Sixth Amendment of the Constitution were for the particular circumstance where judges of the Court of Appeal were appointed without the specific period of the duration of the office being inserted into the instrument of appointment. There were cases in which this was done and it raises questions as to whether the appointments were effective and that in itself could have very serious consequences. Thus, the legislature plugged the loop hole by providing that in such cases, the appointment s would be deemed to be for a certain term.
President Mottley resigned in 2010 while Morrison stayed on until April of this year. Their colleagues on the court at the time, now-President Manuel Sosa and Denys Barrow, were given longer terms of appointment although Barrow also resigned. Senior Counsels Eamon Courtenay and Godfrey Smith represent the Association. Smith argues that for courts to retain their independence and impartiality in deciding disputes, their officers must not be subject to the whim and fancy of the Executive.
” The potential is there. Not everybody who is appointed for a year. Even that, we made the point that where you have the situation where certain Court of Appeal judges have appointments where they have them on the bench until they hit seventy two or seventy five years. It is improper for others to be on one year periods of appointment with the expectation that they don’t know if they will be appointed for another period of one year and that kind of thing. So , we are saying that that amendment creates an internal inconsistency – an internal tension in the Belize Constitution , which requires that when somebody goes before a court, that court is independent and impartial. This whole case was about what does Independence mean. We are saying that it is an objectives thing, you have to have security of tenor and one year periods of appointments flys in the face of that.”
The panel hearing the case – Justices Christopher Blackman, Minnet Hafiz-Bertram and Murrio Ducille, the last one of two recent appointments to the court – has reserved its decision.