Prime Minister Gaston Browne Wednesday ridiculed a call issued by the Antigua and Barbuda Bar Association (ABBA) for him to ‘withdraw the threat’ he made against a sitting judge of the Eastern Caribbean Supreme Court.
The ABBA said that it is also wants the head of government to ‘publicly affirm that no immigration or other executive power will be used to influence, intimidate, punish or remove a judicial officer because of decisions made in the lawful exercise of judicial office’. In a three page statement on Wednesday, the ABBA had earlier said it ‘noted with deep concern’ Browne’s statement made at a National Security meeting on Monday regarding the ‘short sentences’ being meted out by judges despite Parliament passing legislation to allow for harsher penalties related to the increase in gun crime and violence.
Prime Minister Browne in addressing a judge whom he did not identify by name, said ‘Brother man, if you cannot follow the lead of parliament to give longer sentences, leave our country voluntarily otherwise we are going to deport you and make you persona non grata. You know who you are. This is the Prime Minister of the country saying this.’
The ABBA said that although the Prime Minister stated that he did not intend to interfere with the judiciary, ‘the threat of deportation cannot be reconciled with that assurance’.
But in an almost immediate response to the ABBA’s position, Prime Minister Browne took to his Facebook page, in which he referred to the ABBA as being ‘defunct’ adding ‘Here is my response to your request for an apology: Piss off’.
The ABBA had said it had considered Browne’s statement as constituting ‘a grave threat to the independence of the judiciary and is incompatible with the constitutional separation of powers, and the rule of law’.
It said that the Antigua and Barbuda Constitution permits Parliament to make laws for the ‘peace, order and good government of Antigua and Barbuda, but it follows that neither Parliament nor the executive may act in a manner that is inconsistent with the constitutional order, and any attempt to do so is without legal foundation’.
It said that the separation of powers is a basic principle of law on which constitutions modelled on the Westminster system, including that of Antigua and Barbuda, are founded.
‘It has been judicially affirmed that Parliament cannot, consistent with that principle, transfer from the judiciary to an executive body which is not qualified to exercise judicial powers a discretion to determine the severity of the punishment to be inflicted upon an offender.’
The law association said that Prime Minister Browne’s statement, in directing a judge to ‘follow the lead of parliament’ on sentencing, ‘is precisely the kind of executive encroachment upon judicial power that the separation of powers is designed to prohibit’.
It said that the determination of the severity of a sentence imposed upon a convicted offender is, by constitutional principle, a function that belongs exclusively to the judiciary.
‘It has been held that the determination of the duration of a sentence must remain in the hands of the court and not those of the executive. Any arrangement by which the executive or legislature dictates or coerces the outcome of sentencing decisions violates the common law constitutional principle that underpins the separation of powers.’
The ABBA said that a judge who imposes a sentence in accordance with the law, including the Sentencing Guidelines, and the evidence before the court ‘is performing precisely the constitutional function that the separation of powers requires of the judiciary’ and that the ‘Prime Minister’s statement inverts this constitutional order by treating judicial independence as a form of insubordination’.
It said regarding the threat to deport the judge and declare that individual persona non grata for exercising judicial independence ‘is, on any proper analysis, an attempt to coerce the judiciary by executive action.
‘Such a threat strikes at the very foundation of judicial independence. A judge who faces the prospect of expulsion from the jurisdiction for delivering judgments within its discretion, that displeases the executive cannot be said to be independent. The rule of law requires that judges be free to decide cases according to law, without fear of personal consequences imposed by the executive.’
‘The Prime Minister’s statement is a direct and public threat against an identifiable judge, made for the express purpose of influencing the exercise of judicial power. The violation of constitutional principle is manifest’.
The ABBA said that when the executive publicly threatens a member of the judiciary with expulsion from the jurisdiction for exercising judicial independence, ‘it undermines not only the individual judge but the entire constitutional order.
‘It signals to the judiciary, as a whole, that compliance with executive preferences is a condition of continued tenure and residence. This is antithetical to the rule of law and to the constitutional framework within which the courts of Antigua and Barbuda operate.
‘The Prime Minister’s statement is irreconcilable with that doctrine. Parliament may legislate to set maximum or minimum sentences within constitutional limits, but it may not, through the executive, direct individual judges to impose sentences of a particular severity in particular cases and threaten those judges with expulsion for declining to do so. This is unacceptable in a fair and democratic society,’ the ABBA said.