The appointment of Justice Ruth Bowe-Darville
It is a matter of regret and concern that the appointment of Justice Ruth Bowe-Darville was made just days before she attained the age of 65. It is our understanding that Bowe-Darville had made it known to the Judicial and Legal Services Commission (J&LSC) her interest in being appointed a justice of the Supreme Court some time ago. Given the perennial complaint of backlog in the court’s calendar, it is difficult to understand why the appointment of a person as suitable as Bowe-Darville could not have been made some time ago.
The lethargic attitude toward making this appointment to the bench is similar to the lethargy which delayed the confirmation of the appointment of the last chief justice, Stephen Isaacs, only weeks before his demise from a long-time illness, and which continues now to delay the appointment of a substantive chief justice, extending the ill-advised practice of acting judicial appointments.
The mandatory age for retirement of justices of the Supreme Court is 65. The tenure of a justice may be extended by the governor general for an additional two years, subject to the recommendation of the prime minister after consultation with the leader of the opposition.
The leader of the opposition has commented elsewhere of the high regard in which he holds the new justice, but revealed his reservations about the appointment of a justice so close to the constitutionally prescribed mandatory retirement age.
The trend of appointing persons who are about to attain the age of 65 is becoming the rule as opposed to the exception. Justice Rubie Nottage was appointed a justice of the Supreme Court by the J&LSC in May 2008, some five months before her 65th birthday. Justice Roger Gomez was appointed at age 64, and Justice Keith Thompson was appointed four months before he attained the age of 65.
Whilst there is a lot to be said for appointing persons as justices who have much experience as lawyers, it cannot be in the public interest to have persons appointed as justices who are approaching the mandatory age of retirement.
There is an urgent need to amend the constitution to increase the retirement age of justices as was proposed by the FNM government in the 2002 referendum, and opposed by the PLP at that time. Before the last general election, the Constitutional Commission appointed by the PLP government recommended an increase in the mandatory retirement age of justices. The recommendation therefore seems to now have bipartisan support.
It is our view that public debate would be better served by focusing not on the fact that Bowe-Darville was appointed just days before her 65th birthday, but rather on the need to amend the constitution to increase the mandatory retirement age for justices.
We will return to the important subject of constitutional reform of the judicial system particularly to bring greater transparency to the appointment process and further to remove the requirement for the approval of the prime minister for an extension of a justice’s term at the age of 65 in the case of the Supreme Court. Similar amendments ought to be considered with regard to the Court of Appeal.