Former PLP Senator Damian Gomez (Journal file photo)
Gomez Declines Judge Appointment
Slamming the government’s response to the controversial declaration last November by Justice John Lyons that the judiciary in The Bahamas is not independent, former PLP Senator Damian Gomez has written to the governor general expressing a change of heart about becoming a Supreme Court judge.
"While I am grateful for having been considered for the appointment to the Supreme Court of the Commonwealth of The Bahamas and so appointed, personal considerations of conscience compel me to desist from swearing the judicial oath in the circumstances…," Mr. Gomez said in his letter, which stated he was resigning from the Supreme Court of the Bahamas.
He also wrote, "The executive branch of government continues to publicly posture itself as the panacea for the impediment now faced by the higher judiciary. This state of affairs is most inappropriate to our avowed system of government."
Mr. Gomez resigned from the Senate in September after accepting a seat on the bench. He told The Bahama Journal at the time that he planned to take his judicial oath in early 2007.
He is also the attorney representing the Bahamas Bar Council in a lawsuit challenging the government for allegedly breaching the independence of the judiciary.
Mr. Gomez’s letter indicates that he would not become a Supreme Court judge because it is his view that the government has compromised judicial independence in The Bahamas.
The former senator repeats some of the points made by Justice Lyons in two controversial rulings in early November when he said the failure of the government to appoint a commission to review the salaries of judges had compromised the independence of the judiciary.
Mr. Gomez noted that in the year 2000, parliament enacted amendments to the Judges’ Remuneration and Pensions Act which improved the conditions of service of members of the higher judiciary by creating a contractual and statutory right to an independent triennial review of salaries and allowances.
In the year 2000, an independent commission was appointed in accordance with the Act, but unfortunately the executive and legislative branches of government interfered with the process by withholding sums that the independent commission had recommended to be paid to members of the higher judiciary, Mr. Gomez wrote to the governor general.
"To add insult to injury, in the years 2003 and 2006 the executive branch of government did not even appoint the respective triennial independent commissions in accordance with the Act. In the same period, a commission was appointed to review salaries and allowances for lawyers at the Attorney General’s office, Stipendiary and Circuit Magistrates, Registrars of the Supreme Court and the Court of Appeal, and members of the Industrial Tribunal together with members of the higher judiciary," he added.
"There was a complete confusion of powers. The independence of the higher judiciary was further compromised. These matters have been the object of judicial notice, and as such are now a matter of public record."
Mr. Gomez said the public spectacle of this "pandemonium" and the threat to the litigation public being deprived of an independent Supreme Court and Court of Appeal enticed the Bahamas Bar Council to commence proceedings in respect of these matters on November 7.
Private litigants also sought the redress set out in Article 28 of the 1973 Constitution, he noted.
"The executive branch of government on the 10th day of November 2006 purported to arrogate to itself the remedial powers exclusively reserved for exercise by the higher judiciary and appointed a commission chaired by the Honourable Mr. Justice (Joseph) Strachan (now retired)," Mr. Gomez wrote.
"It is impossible to ascertain how this new commission’s appointment is intended to remedy the failures to appoint two commissions in accordance with the Act in 2003 and 2006. Clearly, the members of the higher judiciary have to their detriment been deprived of their constitutional, contractual and statutory right to two independent triennial reviews."
Mr. Gomez said, "It is my view that absent Article 28 remedies for members of the litigation public and the incumbents on the Supreme Court and Court of Appeal, our higher judiciary will continue to suffer from the illegal appearance and reality that their conditions of service are determined at the whim and fancy of the executive branch of government contrary to the separation of powers doctrine and Article 135 of the 1973 Constitution.
"Such a resolution is apparently years away from being achieved and in any event, unlikely to be reached by the 1st day of June 2007. This is an untenable set of persistent circumstances in which to honestly swear an oath requiring my independence from the other branches of government."
Mr. Gomez said it was with "the utmost profound regret" that he was declining to accept an office that has been and continues to be at the pinnacle of his lifelong dreams and aspirations.
Early last month, Senior Justice Anita Allen addressed the very issues that had become the subject of heated debate following Justice Lyons’ rulings.
Justice Allen said in a ruling of her own that the government’s failure to appoint a commission in accordance with the law to review the salaries of judges "is egregious and a potentially serious threat to the health of judicial independence in the Bahamas", but she said she did not see how the government’s failure to follow the law would result in the fair-minded informed observer concluding that she was not independent as a judge.