When Justice is Deaf, Dumb and Blind

APR

Written by: Godfrey Smith Tuesday, April 24, 2012

Prime Minister Dean Barrow is particularly fond of saying that while he cannot vouchsafe the incorruptibility of his ministers, he himself can never be accused of any corruption. That he genuinely believes this can only mean that his pocket guide contains a rather narrow definition. The working man's understanding of corruption involves a public official receiving some valuable consideration in exchange for allowing himself to be influenced in the performance of his public duties. There are, however, subtle acts of corruption far more menacing to democracy and the rule of law than the familiar kickbacks-for-contracts. The latter capture headlines; the former lie hidden, insidiously poisoning public sector institutions. Knowingly and deliberately promoting a judge with a bad track record of adjudicating to a higher court that requires intellectual skills and acumen that judge does not possess is as deceitful an act as knowingly appointing a dishonest person to be a judge. The intent (and effect) in both cases is the same: the undermining of the rule of law. The appointment of judges to Belize's Court of Appeal is made by the Governor-General acting in accordance with the advice of the Prime Minister given after consultation with the Leader of the Opposition. In practical terms, this means that the Governor General appoints whoever the PM advises him to, after the PM has given the Opposition Leader the opportunity to express his views on a proposed appointment. On April 11th 2012 Mr. Barrow wrote to the Leader of the Opposition, Francis Fonseca, seeking his views on the proposed appointment of Mr. Samuel Lungole Awich, a judge of the Supreme Court, as a justice of the Belize Court of Appeal. Mr. Fonseca, in turn, wrote to the President of the Bar Association seeking its views. Of the Bar members canvassed, only three were in support of the appointment of Justice Awich to the Court of Appeal. In replying that he was unable to support the appointment, Mr. Fonseca cited the views of the Bar. The Bar Association of Belize, frequently divided along political lines, is united in its opposition to Mr. Awich's appointment to the Court of Appeal. It believes that a judge who barely passes muster as a judge of the Supreme Court, takes years to deliver judgments and lacks important judicial attributes should not be rewarded with a promotion to a higher level in the hierarchy of courts. The chief justice is probably bristling at the thought of Justice Awich sitting in review on appeals from his decisions; the president of the court of appeal no doubt recoiling at this barefaced dilution of his court already weighed down by a backlog of appeals. More importantly, he should ask why. Mr. Awich's chronic constipation in passing timely judgments obliged the Court of Appeal to administer a judicial laxative in 2008, describing his delay in the George Betson case as "shocking and inordinate". With forensic elegance, the court drizzled sarcasm, as caustic as muriatic acid, over Mr. Awich's long 70page judgment which it described "as a monumental effort demonstrating stamina". In another case (Albert Neal v Macaw Farms) the Court of Appeal, prompted by that judge's long delay in delivering judgment, cautioned that such long delays were a "violation of the constitutional rights" of parties, "undermined public confidence in the administration of justice" and "seriously compromised" the effectiveness of the judiciary.

Proving that justice is not only blind but can sometimes be also stone deaf, the judge remained impervious to the withering criticisms coming down from the court of appeal. The Bar in September 2009 tabled and considered a resolution expressing the view that his "failure to deliver outstanding judgments amounts to misbehavior in office" and that he should "forthwith resign from office". Though the resolution was ultimately shelved, the messy affair played out fully in the local evening news exposing the extent of the Bar's lack of confidence in Mr. Awich as a judge. Under the glare of the public and pressure from Chief Justice Conteh, Mr. Awich managed to write a few of his outstanding judgments. Not surprisingly, after so much time, a number of these were appealed on the ground of - delay. The outcome of a case from Belize (Mayan King v Reyes) argued just last week before the Caribbean Court Justice may turn on the excessive delay by Mr. Awich in delivering his judgment. Mr. Barrow replied to Mr. Fonseca on April 19th stating that he remained "convinced that Justice Awich is eminently suitable for appointment to the Court of Appeal". Mr. Barrow (to borrow one of his favorite phrases) is either a fool or a knave. As he is keenly aware of the situation regarding that judge, he cannot claim ignorance. His motive for insisting on promoting a struggling judge whose credibility lies in tatters is, at best, suspicious. On the heels of the PM's response to the Opposition Leader, the Bar Association passed a resolution opposing Mr. Awich's elevation to the Court of Appeal, stating that he "lacks the judicial wherewithal required of a justice of appeal" and urging the government to reconsider the appointment. If appointed, Mr. Awich would be on a two year contract. This puts him at the mercy of the government for the renewal of his contract. Judges are human beings after all and the best of them can, under the uncertainty of contract renewal, be unconsciously prejudiced in the adjudication of cases involving the government without any actual interference by the state. Where this occurs, it corrodes the rule of law. Recognizing this, the United Nations Convention Against Corruption requires state parties to strengthen the system for the promotion of their public officials, "basing it on principles of efficiency, transparency and objective criteria such as merit, equity and aptitude". If Mr. Barrow proceeds with the appointment of Mr. Awich to the Court of Appeal it will be a breach of public trust and an abuse of his high office, a bit more subtle but far more treacherous and corrosive than any of the news-grabbing, pedestrian acts of corruption for which he has sacked his ministers.