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CHAPTER VII
THE JUDICATURE
Part 1
The Supreme Court
93.
(1) There shall be a Supreme Court for The
Bahamas which shall have such jurisdiction and powers as may be conferred upon it by this
Constitution or any other law.
(2) The Justices of the Supreme Court shall be the Chief Justice
and such number of other Justices as may be prescribed by Parliament.
(3) No office of Justice of the Supreme Court shall be abolished
while there is a substantive holder thereof.
(4) The Supreme Court shall be a superior court of record and, save
as otherwise provided by Parliament, shall have all the powers of such a court.
94.
(1) The Chief Justice shall be
appointed by the Governor-General by instrument under the Public Seal
on the recommendation of the Prime Minister after consultation with
the Leader of the Opposition.
(2) The other Justices of
the Supreme Court shall be appointed by the Governor-General by
instrument under the Public Seal acting on the advice of the Judicial
and Legal Service Commission.
(3) The qualifications for
appointment as a Justice of the Supreme Court shall be such as may be
prescribed by any law for the time being in force:
Provided that a person who has been appointed as a Justice of the
Supreme Court may continue in office notwithstanding any subsequent variations
in the qualifications so prescribed.
95.
(1) If the office of Chief Justice is
vacant or if the Chief Justice is for any reason unable to perform the
functions of his office, then, until a person has been appointed to
that office and assumed those functions, they shall be performed by
such other person, qualified under paragraph (3) of Article 94 of this
Constitution for appointment as a Justice, as the
Governor-General, acting in accordance with the advice of the
Prime Minister may appoint for that purpose by instrument under the
Public Seal.
(2) If the office of a Justice of
the Supreme Court is vacant, or if any such Justice is anointed to act
as Chief Justice or as a Justice of Appeal, or is for any reason
unable to perform the functions of this office, the Governor-General,
acting on the advice of the Judicial and Legal Service Commission, may
by instrument under the Public Seal appoint a person qualified under
paragraph (3) of Article 94 of this Constitution for appointment as a
Justice to act as a Justice of the Supreme Court, and any person so
appointed shall, subject to the provisions of paragraph (5) of Article
96 of this Constitution, continue to act for the period of his
appointment or, if no such period is specified, until his appointment
is revoked by the Governor-General
acting on the advice of the Judicial and Legal Service Commission.
(3) Any person appointed to act as a
Justice under the provisions of this Article may, notwithstanding that
the period of his appointment has expired or his appointment has been
revoked, sit as a Justice for the purpose of delivering judgment or
doing any other thing in relation to proceedings which were commenced
before him while he was so acting.
96.
(1) Subject to the provisions of
paragraphs (4) to (7) (inclusive) of this Article, a Justice of the
Supreme Court shall hold office until he attains the age of sixty-five
years:
Provided that the Governor-General, acting on the recommendation
of the Prime Minister after consultation with the Leader of the Opposition,
may permit a Justice who attains the age of sixty-five years to continue
in office until he has attained such later age, not exceeding
sixty-seven years, as may (before the Justice has attained the age of
sixty-five years) have been agreed between them.
(2) Notwithstanding that he has
attained the age at which he is required by or under the provisions of
this Article to vacate his office, a person holding the office of
Justice of the Supreme Court may, with the permission of the
Governor-General, acting in accordance with the advice of the Prime
Minister, continue in office for such period after attaining that age
as may be necessary to
enable him to deliver judgment or to do any other thing in relation to
proceedings that were commenced before him before he attained that
age.
(3) Nothing done by a Justice of
the Supreme Court shall be invalid by reason only that he has attained
the age at which he is required by this Article to vacate his office.
(4) A justice of the
Supreme Court may be removed from office only for inability to
discharge the functions of his office (whether arising from infirmity
of body or mind or nay other cause) or for misbehavior, and shall not
be so removed except in accordance with the provisions of paragraph
(5) of this Article.
(5) A Justice of the Supreme
Court shall be removed from office by the Governor-General by
instrument under the Public
Seal if the question of the removal of that Justice from office
has, at the request of the Governor-General, made in pursuance of
paragraph (6) of this Article, been referred by Her Majesty to the
Judicial Committee of Her Majesty's Privy Council and the Judicial
Committee has advised her Majesty that the Justice ought to be removed
from office for inability as aforesaid or for misbehavior.
(6) If the Prime Minister (in the
case of the Chief Justice) or the Chief Justice after consultation
with the Prime Minister (in the case of any other Justice) represents
to the Governor-General that the question of removing a Justice of the
Supreme Court from office for inability as aforesaid of for
misbehavior ought to be investigated, then-
(a) the Governor-General shall appoint
a tribunal, which shall consist of a
Chairman and not less than two other members, selected by the
Governor-General acting in accordance with the advice of the Prime
Minister
(in the case of the Chief Justice) or of the Chief Justice (in the
case of any
other Justice) from among persons who hold or have held high judicial
office;
(b) that tribunal shall inquire into
the matter and report on the facts thereof to the
Governor-General and recommend to the Governor-General whether he
should
request that the question of the removal of that Justice should be
referred by
Her Majesty to the Judicial Committee; and
(c) if the tribunal so
recommends, the Governor-General shall request that the
question should be referred accordingly.
(7) The provisions of the Commissions
of Inquiry Act (a) as in force immediately before the appointed day
shall, subject to the provisions of this Article, apply as nearly as
may be in relation to tribunals appointed under paragraph (6) of this
Article or, as the context may require, to the members thereof as they
apply in relation to the Commissions or
Commissioners appointed under that Act, and for that purpose
shall have effect as if they formed part of this Constitution.
(8) If the question of removing a
Justice of the Supreme Court from office has been referred to a
tribunal appointed under paragraph (6) of this Article, the
Governor-General, acting in accordance with the advice of the Prime
Minister (in the case of the Chief Justice) or of the Chief Justice
after the Chief Justice has consulted with the Prime Minister (in the
case of any other Justice), may suspend the Justice from performing
the function of his office.
(9) Any such suspension may at any time
be revoked by the Governor-General, acting in accordance with the
advice of the Prime Minister or the Chief Justice (as the case may
be), and shall in any case cease to have effect-
(a) if the tribunal recommends to the
Governor-General that he should not request
that the question of the removal of the Justice from office should be
referred by
Her Majesty to the Judicial Committee; or
(b) the Judicial Committee advises Her
Majesty that the Justice ought not to be
removed from office.
(10) The Provisions of this Article shall be
without prejudice to the provisions of paragraph (2) of Article 95 of
this Constitution.
97. A Justice of the Supreme
Court shall not enter upon the duties of his office unless he has
taken and subscribed the oath of allegiance and a judicial oath in
such form as is prescribed by any law in force in The Bahamas.
Part II
Court or Appeal
98. (1) There
shall be a Court of Appeal for The Bahamas which shall have such
jurisdiction and powers as may be conferred upon it by this
Constitution or any other law.
(2) The Justices of Appeal of the Court of Appeal shall
be-
(a) a President;
(b) the Chief Justice by virtue of his office
as head of the Judiciary but who,
however, shall not sit in the Court of Appeal, unless he has been
invited so to
sit by the President of the Court; and
(c) such number of other Justices of Appeal
as may be prescribed by Parliament.
(3) No office of Justice of Appeal shall be
abolished while there is a substantive holder thereof.
(4) The Court of Appeal shall be a superior court
of record and, save as otherwise provided by Parliament, shall save
all the powers of such a court.
99. (1)
The President of the Court of Appeal and other Justices of Appeal
shall be appointed by the Governor-General by instrument under the
Public Seal on the recommendation of the Prime Minister after
consultation with the Leader of the Opposition.
(2) The qualifications for appointment as a
Justice of Appeal may continue in office notwithstanding any
subsequent variations in the qualifications so prescribed.
100. (1) Notwithstanding anything contained in this
Part of this Chapter, Parliament may make provisions-
(a) for implementing arrangements made between the
Government of The
Bahamas and the Government or Governments of any other part or parts
of the
Commonwealth relating to the establishment of a court of appeal to be
shared
by The Bahamas with that part or those parts of the Commonwealth, and
for
the hearing and determination by such a court of appeal of appeals
from
decisions of any court in The Bahamas; or
(b) for the hearing and determination of appeals
from decisions of any court in The
Bahamas by a court established for any other part of the Commonwealth.
(2) A law enacted in pursuance of paragraph
81) of this Article may provide that the jurisdiction conferred on any
such court as is referred to in that paragraph shall be to the
exclusion, in whole or in part, of the jurisdiction of the Court of
Appeal established by this Part of this Chapter; and during any period
when jurisdiction is so conferred to the exclusion of the whole
jurisdiction of the said Court of Appeal, Parliament may suspend the
provisions of this Part establishing that Court.
(3) In paragraph (1) of this Article the expression
"any court in the Bahamas" includes the Court of Appeal
established by this Part of this Chapter.
101. (1) If the office of President of the Court
of Appeal is vacant or if the President of the Court of Appeal is for
any reason unable to perform the functions of this office, then, until
a person has been appointed to that office and assumed its functions
or, as the case may be, until the President of the Court of Appeal has
resumed those functions, they shall be performed
by such other person, qualified under paragraph (2) of Article 99 of
this Constitution for appointment as a Justice of Appeal, as the
Governor-General, acting in accordance with the advice of the Prime
Minister, may appoint for that purpose by instrument under the Public
Seal.
(2) If the office of a Justice of Appeal (other
than the President) is vacant, or if any such Justice is appointed to
act as President of the Court of Appeal, or is for any reason unable
to perform the functions of his office, the Governor-General, acting
on the advice of the Judicial and Legal Service Commission, may by
instrument under the Public Seal appoint a person qualified under
paragraph (2) of Article 99 of this Constitution for appointed shall,
period is specified,
until his appointment is revoked by the Governor-General acting on the
advice of the Judicial and Legal
Service Commission.
(3) Any person appointed to act as a Justice of
Appeal under the provisions of this Article may notwithstanding that
the period of this appointment has expired or his appointment has been
revoked, sit as a Justice for the purpose of delivering judgment or
doing any other thing in relation to proceedings which were commenced
before him while he was so acting.
102.
(1)
Subject to the provisions of paragraph (4) to (7) (inclusive) of his
Article, a Justice of Appeal shall hold office until he attains the
age of sixty-eight years:
Provided that the Governor-General, acting on the recommendations
of the Prime Minister after consultation with the Leader of the Opposition, may permit a
Justice of Appeal who attains the age of sixty-eight years to continue
in office until he has attained such later age, not
exceeding seventy years, as may (before the Justice of Appeal has
attained the age of sixty-eight years) have been agreed
between them.
(2) Notwithstanding that he has attained the age at
which he is required by or under the provisions of this Article to
vacate his office, a person holding the office of Justice of Appeal
may, with the permission of the Governor-General, acting in accordance
with the advice of the Prime Minister, continue in office for such
period after attaining that age as may be necessary
to enable him to deliver judgment or to do any other thing in relation
to proceedings that were commenced before him before he attained that
age.
(3) Nothing done by a Justice of Appeal shall be
invalid by reason only that he has attained the age at which he is
required by this Article to vacate his office.
(4) A Justice of Appeal may be removed from office
only for inability to discharge the functions of his office (whether
arising from infirmity of body or mind or any other cause) or for
misbehavior, and shall not be so removed except in accordance with the
provisions of paragraph (5) of this Article.
(5) A Justice of Appeal shall be removed from
office by the Governor-General by instrument under the Public Seal if
the question of the removal of that Justice of Appeal from office has,
at the request of the Governor-General made in pursuance of paragraph
(6) of this Article, been referred by Her Majesty to the Judicial
Committee of Her Majesty's Privy Council and the Judicial Committee
has advised Her Majesty that the Justice of Appeal ought to be removed
from office for inability as aforesaid or for misbehavior.
(6) If the Prime Minister (in the case of the
President of the Court of Appeal) or the president of the Court of
Appeal or the Chief Justice after consultation with the Prime Minister
(in the case of any other Justice of Appeal) represented to the
Governor-General that the question of removing a Justice of Appeal
from office for inability as aforesaid or for misbehavior ought to be
investigated, then-
(a) the Governor-General shall appoint a tribunal,
which shall consist of a
Chairman and not less than two other members, selected by the
Governor-General acting in accordance with the advice of the Prime
Minister
(in the case of the President of the Court of Appeal) of the President
of the
Court of Appeal (In the case of any other Justice of Appeal) from
among
persons who hold or have held high judicial office;
(b) that tribunal shall inquire into the
matter and report on the facts thereof to the
Governor-General and recommend to the Governor-General whether he
should
request that the question of the removal of that Justice of Appeal
should be
referred by Her Majesty to the Judicial Committee; and
(c) if the tribunal so recommends, the
Governor-General shall request that the
question should be referred accordingly.
(7) The provisions of the Commission of Inquiry Act
(a) as in force immediately before the appointed day shall, subject to
the provisions of this Article, apply as nearly as may be in relation
to tribunals appointed under paragraph (6) of his Article or, as the
context may inquire, to the members thereof as they apply in relation
to Commission or Commissioners appointed under that Act, and for that
purpose shall have effect as if they formed part of this Constitution.
(8) If the question of removing a Justice of
Appeal from office has been referred to a tribunal appointed under
paragraph (69 of this Article, the Governor-General acting in
accordance with the advice of the Prime Minister (in the case of the
President of the Court of Appeal) or of the President of the Court of
Appeal after the President of the Court of Appeal has consulted with
the Prime Minister (in the case of any other Justice of Appeal), may
suspend the Justice of Appeal from performing the functions of his
office.
(9) Any such suspension may at any time be
revoked by the Governor-General, acting in accordance with the advice
of the Prime Minster or the President of the Court of Appeal (as the
case may be), and shall in any case cease to have effect if-
(a) the tribunal recommends to the
Governor-General that he should not request
that the question of the removal of the Justice of Appeal from office
should be
referred by Her Majesty to the Judicial Committee; or
(b) the Judicial Committee advises her
Majesty that the Justice of Appeal ought no
to be removed from office.
(10) The provisions of this Article shall be
without prejudice to the provisions of paragraph (2) of Article 101 of
this Constitution.
(11) The provisions of this Article and of Article
103 of this Constitution shall not apply to the Chief Justice.
103. A Justice of Appeal
shall not enter upon the duties of his office unless he has taken and
subscribed the oath of allegiance and a judicial oath in such form as
is prescribed by any law in force in The Bahamas.
Part III
Appeals relating to fundamental rights and freedoms.
104. (1)
An appeal to the Court of appeal shall lie as of right from final
decisions of the Supreme Court given in exercise of the
jurisdiction conferred on the Supreme Court by Article 28 of
this Constitution (which relates to the enforcement of fundamental
rights and freedoms).
(2) An appeal shall lie as of right to the Judicial
Committee of Her Majesty's Privy Council or to such other court as may
be prescribed by Parliament under Article 105(3) of this Constitution
form any decisions given by the Court of Appeal in any such case.
105.
(1) Parliament may provide for an appeal to lie
from decisions of the Court of Appeal established by Part 2 of this
Chapter to the Judicial Committee of Her Majesty's Privy Council or to
such other court as may be prescribed by Parliament under this
Article, either as of right or with the leave of the said Court of
Appeal, in such cases other than those referred to in Article 104(2)
of this Constitution as may be prescribed by Parliament.
(2) Nothing in this Constitution shall affect
any right of Her Majesty to grant special leave to appeal from
decisions such as are referred to in paragraph (1) of this Article.
(3) Parliament may by law provide for
the functions required in this Chapter to be exercised by the Judicial
Committee of Her Majesty's Privy Council to be exercised by any other
court established for the purpose in substitution for the Judicial
Committee.
106.
References in this Part to "the Court of Appeal" include
references to a shared court of appeal established under Article
100(1) of this Constitution when exercising jurisdiction in respect of
The Bahamas.
Arrangement
of Articles 1
2
3
4
5
6 7
8
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