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The Bahamas Independence Order 1973

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PART 2Court of Appeal

Establishment of Court of 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 site 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 have all the powers of such a court.

Justices of the Court of Appeal

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 shall be such as may be prescribed by any law for the time being in force;

Provided that—

(i)a person shall not be qualified for appointment as a Justice of Appeal unless he holds or has held high judicial office; and

(ii)a person who has been appointed as a Justice of Appeal may continue in office notwithstanding any subsequent variations in the qualifications so prescribed.

Other arrangements for appeals

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 (1) of this Article may provide that the jurisdiction conferred on any such court as is referred to in that paragraphs 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 Bahamasincludes the Court of Appeal established by this Part of this Chapter.

Acting Justices of Court of Appeal

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 his 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 appointment as a Justice of Appeal to act as a Justice of Appeal, and any person so appointed shall, subject to the provisions of paragraph (5) of Article 102 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 of Appeal 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.

Tenure of office of Justices of Appeal

102.—(1) Subject to the provisions of paragraph (4) to (7) (inclusive) of this 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 recommendation 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 relating 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 misbehaviour, 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 the 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 misbehaviour.

(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) represents to the Governor-General that the question of removing a Justice of Appeal from office for inability as aforesaid or for misbehaviour 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) or 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 enquire 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 Commissions of Inquiry Act(1) 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 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 Appeal 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 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 Minister 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 not 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.

Oaths to be taken by Justices of Appeal

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.

(1)

Statute Law of the Bahama Islands, Revised Edition 1965, Cap. 180.

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