By LEANDRA ROLLE 

Tribune Chief Reporter 

lrolle@tribunemedia.net

LAWYERS across The Bahamas scrambled yesterday to assess the fallout from a major Court of Appeal decision that declared judgements delivered by retired Supreme Court judges unconstitutional.

The five-member panel, convened because of the case’s constitutional significance, ruled 4-1 to strike down a $575,000 award issued by retired Justice Ruth Bowe-Darville nearly three years after she left the bench.

It was not immediately clear how many cases could be affected. One lawyer told The Tribune she has been waiting ten years for a judgment.

Chief Justice Sir Ian Winder told The Tribune a “proper assessment” will now be required and acknowledged that some matters remain without written judgments, though oral decisions had been given in most. Lawyers said Justice Bowe‐Darville is not the only judge to have issued rulings after retirement over the years, suggesting the implications could be far‐reaching.

The Court of Appeal itself acknowledged the potential breadth of the impact. In their 96‐page judgment, the justices noted that this was “not an uncommon occurrence” and warned that the issue has been “continually under challenge in other matters.” They declared: “The time has obviously come for this unconstitutional practice to be brought to an end.”

The decision also highlighted long‐standing concerns about the strain on the judiciary. National Security Minister Wayne Munroe, a former Bar Association president, said yesterday that he has long argued that overworked judges and lawyers are more likely to fall behind, creating the kind of delays now under scrutiny.

“When I was in practice, I often said that we work our judges far too hard,” he said. “In other countries, they get time off to write their judgments. We give them reading days, and then lawyers like me beg them to hear an urgent case on their reading days, and soon they have none.”

The case stemmed from a lawsuit filed by former immigration detainee Dahene Nonord, who had successfully sued for constitutional breaches and misfeasance in public office against several government officials, including the then‐Prime Minister and the Minister of Immigration.

Justice Bowe‐Darville, who was appointed to the Supreme Court in 2019 and retired on December 3, 2021, did not deliver her oral or written ruling in Ms Nonord’s case until August 2, 2024.

In its 96‐page decision released July 30, 2025, the Court of Appeal noted that while a judge who gives an oral ruling before retirement may later issue written reasons, a judgment first delivered after leaving office is unconstitutional and void. It ruled that Article 96 of the Constitution leaves no room for judges to issue rulings after they demit office.

Judges must retire at 65, extendable to 67 under special conditions, and Article 96(2) allows temporary extensions to complete pending matters, but only while the judge remains in office. The majority stressed that the long‐standing practice of post‐retirement rulings is unconstitutional and can no longer be saved by the de facto officer doctrine.

The court further cautioned that any future attempts to issue judgments after retirement without first pronouncing them orally will result in nullities, warning that public confidence in the courts now depends on strict adherence to the “mopping‐up” regime under Article 96(2).

Mr Munroe said he could not predict how many cases might now be vulnerable.

“I would think one of my colleagues who is litigiously minded, Fred Smith, being involved, that it may have one more stop before it’s finished, to the final court of appeal for this country, which is the Privy Council,” he said.

He said while serving as Bar Association president, he argued for a UK‐style system in which part‐time “recorders” can step in to help overburdened courts.

“A judge may sit in court for only six or seven months out of the year if he has a heavy caseload,” he said. “Then, in the intervening months, you have recorders, often senior counsel or future King’s Counsel, who fill the court so there isn’t a vacuum.”

The Court of Appeal has remitted Ms Nonord’s case for a fresh hearing before a Supreme Court justice.

Former Prime Minister Dr Hubert Minnis appointed Justice Ruth Bowe‐Darville to the bench in 2019 just one week before she reached the mandatory retirement age, requiring her tenure to be immediately extended to 67.

At the time, Mr Davis criticised the move. “To appoint a judge to a substantive post with only what I’d call the residual two years left – which requires an extension at the behest of the prime minister after consultation with me – I think on the matter of principle, is rather unfortunate,” he said.

“It doesn’t speak well to the process. I know Mrs Ruth Bowe‐Darville very well, this has nothing to do with her, but this is a rather strange phenomenon and goes against principle.”