Judge not, that ye be not judged. For with what judgment ye judge, ye shall be judged and with what measure ye mete, it shall be measured to you again.
Matthew 7, 1-2 : The Holy Bible (King James Version)
The news of the resignation of President of the Court of Appeal, Mr. Justice Elliot Mottley, blew through the legal community like a cheap plastic kite on a breezy March morning in the Jewel – fast and erratically. To the cognoscenti, such an act of judicial seppuku was not unexpected. Honor was at stake, and the President is the most honorable of those on the Bench in Belize.
It did mean however that both in the Supreme Court and the Court of Appeal, the top spots must now be filled – in an unusual legal synchronicity. Once again there was a peerless jurist on whom a power-drunk Executive had set its merciless gaze. For the third time this year, a judge's position was targeted. Happy Independence, indeed.
The Attorney General (for whom the Constitution was amended and who was supposed to be above the hurly burly of politics) was dispatched to see the President. The message was that after the slash and burn constitutional "regularization" of the once lifetime appointment had been concluded, His Lordship's services would not be required any longer. His Lordship's appointment would not be renewed.
Today, at the Special Sitting of the Court of Appeal to mark the departure of the President, his Lordship in an economical summation, devoid of emotion, stated flatly that he had been informed by CJ Conteh that the Government had unilaterally altered the terms and conditions of his appointment. His Lordship made it clear that this was done without his knowledge or consent. Mr. Justice Mottley said that once he became aware of this, he determined then to resign his office. What else was an honorable man to do?
In stark contrast, the Government of Belize drank too deeply of its own dishonorable propaganda and belched forth an attempted spin, declaiming via press release issued on October 15, 2010, "President Of The Belize Court of Appeal Retires" and wishing him "a happy retirement". Indeed.
The GOB press release states that "The President of the Belize Court of Appeal, Justice Elliot Mottley, will be retiring from the Court effective 31st December, 2010". But if it is not to take effect until the end of the year, why make the announcement mid-session during the last sitting of the Court of Appeal for the year? The timing was most curious – strange, unexpected, and hard to explain.
Curiouser yet was the backdrop against which the announcement came. It came after the forced departure of Justice Boyd Carey and the indecently hastened departure of the Chief Justice. It also came hot on the heels of a move by the Prime Minister of Belize to consult the Leader of the Opposition as to a new and temporary judge for the Court of Appeal.
This latest attempt, by the Prime Minister of Belize, to appoint a sitting judge of the Supreme Court as a temporary Court of Appeal judge, after the start of the current sitting of the Court of Appeal, is either an act of blind hubris or a deliberate autocratic exercise.
Breathtaking ignorance of the law could not possibly be ascribed to so eminent a constitutional lawyer, and in any case, of all Belizeans, the PM could not avail himself of the defence.
The Lawyer in Chief and Prime Minister who famously declared that he had to "almost come loose from my constitutional moorings" has in fact slipped the surly bonds of the law and has driven the ship of state right onto the rocky shoals of Mr. Elrington's metaphorical reef.
Why is the attempted appointment wrong? Let us count the ways. Not only is the Prime Minister bound to consult the Leader of the Opposition, but the President of the Court of Appeal as well, in the matter of such an appointment. There was absolutely no indication that this was or would be done – in fact, in a previous appointment, this requirement was reportedly conveniently ignored.
Secondly, the letter written to the Leader of the Opposition by the Cabinet Secretary at the behest of the Prime Minister made it clear that Justice Legall would be appointed to sit to hear Civil Appeal No 29 of 2008. This was not the first time that the Government was appointing a judge to hear one case. Justice Alleyne was appointed, earlier this year, to hear only one case – Civil Appeal No 8 of 2010. But that was in a special sitting – and only one case was listed in that particular session of the Court of Appeal.
In this particular instance, the Court of Appeal was already here, from October 4, 2010 with a full calendar of cases. It is not right for the Executive to choose to appoint a judge to hear one single case selected from the Court of Appeal list. The Constitution does not allow the Executive to make temporary appointments of Justices for one particular case. This would be a blatant violation of the doctrine of the Separation of Powers doctrine which underpins our political system of a parliamentary democracy.
Thirdly, it must be noted that Justice Legall is the least senior member of the Supreme Court bench. It is also of critical importance that this particular judge already had a very heavy calendar of cases for October. He was to be appointed to serve on the Court of Appeal while simultaneously serving on the Supreme Court. Leaving the issue of whether that is even possible or if it is appropriate aside, as a purely practical matter, appointment to the Court of Appeal on a temporary basis, even if for only one case, would result in delay and inconvenience to other litigants already scheduled to appear before him in the Supreme Court. Justice delayed, is after all, Justice denied.
Fourthly, no basis was cited by the Prime Minister upon which Justice Legall was selected. It is necessary to point out, that even though this judge did not request an extension for his contract, he was given a three year instrument of appointment after he has already attained the age of 65. Chief Justice Conteh was given no such consideration. I made note of the circumstances surrounding that appointment in the Senate when the matter came for ratification to the upper house of parliament.
Fifthly, the appointment purported to be for the "duration of the October 2010 sitting of the Court of Appeal." This was most curious, because the PM's letter did state that the sitting commenced on October 4, prior to the date of the letter.
The President of the Court of Appeal resigned in mid-session, on Friday, October 15, 2010, incidentally, just after this letter and the response of the Leader of the Opposition to that letter has been published in the Belize Times.
The Honorable Bernard Quentin Augustus Pitts, Attorney General of Belize, said at yesterday's special sitting to mark Justice Mottley's farewell, “You are a legal giant. Our Prime Minister and the government and people of Belize are extremely thankful for the service which you have provided.“ Indeed, as to His Lordship's stature. And as to the gratitude? Strange thanks to refuse to have such sterling service in our highest resident court.
He also said, "You have done an excellent job and have left indelible imprints on our judicial sands of time. One has only to survey if even concerning the many judgments which you were given and it should be without difficulty to observe that not only were they impressive but they were sound and full of learning and instruction especially to those of us who resorted to your court. You will long be remembered not only for your seriousness in posture but also for the serious attitude you displayed." Indeed, but was anything learned by GOB?
Mr. Justice Denys Barrow, Justice of Appeal said on the same occasion, “It seems to me that what the judiciary and the society now need are the calm composition and restraint that Justice Mottley has personally practiced, and with which he has presided over the Mottley court Indeed and agreed. So why then was his appointment altered? Why tamper with perfection?
Mr. Justice Mottley leaves Belize on Thursday, October 21, 2010. He is being awarded an honorary Doctor of Laws form the university of the West Indies. He has served with distinction, not only in Belize, but on the Courts of Appeal in several other Caribbean jurisdictions. We shall not see his like again. He cannot be readily replaced. WE are the losers. Those who sing glorious paeans to his service to the extent that they were complicit in any way in his departure are nothing but rank hypocrites.
As a coda, it must be said that the PM pulled back on the Legall appointment, citing that the session was now almost over. In a masterpiece of bellicosity and pomposity, the 'consultation' was ended with much self-righteous huffing and puffing, by letter to the Leader of the Opposition filled with hot air and grandiose reproach. Sic transit gloria justitiae…
Judge not so, Prime Minister lest ye be judged and measured by your own measure.
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Source: The Belize Times
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