Tales from the Courts – Mars(ton) and Pluto Were Inside the Closet Part XVIII
For some years now BU has been highlighting the issue of the almost terminal state of our justice system. We have been highlighting, among other things, the backlog of cases both before the High Court and the Court of Appeal, the complete inefficiency of the Registry with its loss of files and procrastination, the mess that is the Bar Association and the clear conflict between Bar Association enforced membership and the Constitution; but most importantly, we have been highlighting the quality of our judges, both at High Court and Appeal levels.
A very short while ago, attorneys-at-law from Barbados raised the issue of delays in both getting matters heard and in receiving the judgements on those matters with CCJ Justice Saunders at one open forum. Justice Saunders opined that it was because Barbados judges were not scheduling their time properly. Meanwhile, in another forum, CCJ President Sir Denis Byron advised that appeals to the CCJ from Barbados had risen by 350%.
Having read some of the CCJ decisions in right of Barbados, we have to say that Justice Saunders was being diplomatic, for these judgements do not censure delay alone, but the lack of quality of the judgements themselves, judgements that in any other jurisdiction would lead either to the judge being asked to resign or to his/her dismissal.
Sir Denis, we suggest, was also being kind, in that he attributed the 350% increase in appeals to the CCJ to the fact that such appeals are both easier to file and much less expensive than appeals to the Judicial Committee of the Privy Council. We have no doubt that Sir Denis is absolutely right. However, we suggest that this is only a part of the reason. The other part is the lack of quality of the decisions handed down by the Barbados courts.
The crusade by BU to sensitize relevant parties about our judicial system seemed to be finally penetrating the consciousness of the legislature, with some words on the subject coming from Prime Minister Freundel Stuart on his recent visit to Toronto. Of all people, the PM knows that the state of our judicial system, more than any other single factor, has all but decimated our overseas investment market and our offshore banking market and this must be a major concern to the Government. To many, the PM’s words may have sounded slight, given the magnitude of the problem. However, the PM is known (and has been criticised) for NOT often enough sharing his concerns publicly and his comments must be seen as a strong warning to the bench that judicial independence is not absolute and that the Prime Minister can act in the interests of the taxpayers who pay the wages and pensions of members of the Bench. With a different prime minister, it might be seen as empty rhetoric. With Freundel Stuart, it is more likely to be a statement of intent.
Meanwhile, in the Senate, Senator Wilfred Abrahams has jumped on the bandwagon created unapologetically by BU and made the reform of the judicial system his priority. BU tends to discount the words of Senator Abrahams, because a man who (as president of the BA) seeks legal opinions from the Chief Justice and Registrar as reported in a BU blog on April 07, 2013 would appear to be deficient in actually knowing what these reforms should be and how these reforms should be formulated and implemented. It has to be discounted as nothing but political rhetoric and an attempt to lead the now nationwide attack on the failings of the judicial system.
Meanwhile, Chief Justice Marston Gibson, his feet firmly planted in the cocktail circuit, talks of ADR and bail hearings by videoconference, which is akin to, “Take a couple of aspirin and call me in the morning,” to someone suffering from cardiac arrest. And our judicial system IS suffering from cardiac arrest and by this time the patient, like our judges, is brain-dead.
Even the Nation Newspaper has finally allowed Bajans to know that there are grave problems in the judiciary, problems spoken of a long time ago by people like Sir Roy Marshall and Sir Frederick Smith.
So, can we look for changes (and those changes need to be drastic)? The Prime Minister is the only person with the constitutional authority to make changes. So we watch and we wait.
Heretofore, the courts have been shrouded in mystique and mystery and, latterly, undeserved respect. We, most of us, will remember our parents and grandparents and teachers telling us that “Respect must be earned.” However, our judges do not seem to even want to earn the salaries, perquisites and pensions they are being paid by the taxpayer, far less the respect of the taxpayer. But, with the advent of the Worldwide Web where, at the click of a button, their failings can be exposed to all, they are living in the past and in a state of denial. And BU intends to do its best to drag them kicking and screaming, if necessary, into this time frame. Or assist in creating an atmosphere where they will be either asked to resign or suspended, pending the due process prescribed in the Constitution.
It is from England that we take our justice system. And therefore we look to England to see how the justice system there is coping with the demands of our time. In a recent Daily Mail offering, the Mail is patting itself on the back for having exposed a serious miscarriage of justice – read article. And the actions of the Mail in exposing this matter and bringing it to the public attention is PRAISED by one of England’s foremost lord justices. BU will now wait, without holding its breath, for someone on the Bench to praise it.
But the point is that the British Press (as in the British equivalent to the Nation) holds the justice system up to scrutiny, whereas, in Barbados, all the Nation is interested in, is scoring political points for its favoured party, while it watches arguably our most important institution float down the drain. The legislature and the press, like Nero, have been fiddling while Barbados’ justice system burns.
Also in the Mail, it has started another crusade, this time for the UK to withdraw from the European Court of Human Rights. There have recently been a spate of rulings handed down by the body that the Brits see as a threat to their sovereignty, their way of life and, most importantly, their national security and safety. However, we learn in the Mail all about the British judge at the ECHR, Paul Mahoney. A man who is paid £150,000 a year, had two years practice in law in the UK, before decamping to Brussels as a bureaucrat for the EU, has never held a judgeship and who advocates his right to make new law, exclusive of the legislature – read article. Ring any bells? Let us help you, as if you need it.
A Chief Justice who is, like Mr Mahoney, an Oxford graduate, has never practiced law, has never held a judgeship, who has worked as a lecturer in law and a glorified researcher for judges in New York and is a devotee, not of CARICOM, but of the cocktail circuit and who is clearly completely out of his depth having, in 2 years, delivered not a single Court of Appeal judgement. AND a bench comprised of political hacks from places like the Solicitor General’s office and former registrars who have distinguished themselves by creating what today is the Registry who have little or NO practice experience and little or NO familiarity with the Rules or the Constitution.
Andrew Pilgrim has suggested the appointment of more judges, and he may be right. But, as we have abundant experience to know full well, the problem there is in the quality of the judges appointed. They must not be political hacks or party-faithful members of the bureaucracy. They need to be experienced jurists with an excellent record of practice. And there is no doubt that there are MANY such in Barbados who will not be considered, because they do not toe any political line.
Guyana has legislated as to the time in which judges MUST give decisions in cases. The Nation opposes similar legislation for Barbados. But at the end of the day, it may come to that. For, as Prime Minister Freundel Stuart pointed out in Toronto, it affects (negatively) litigants. Thus we interpret that to mean that it affects their families, their hopes and their aspirations, sometimes for as much as half the life-span that they can realistically expect, and even after death, to the extent of holding up people for years on probates of estates. It also affects all Bajans through our foreign investments and off-shore.
The truth is that Barbados and its peoples are being held to ransom by a deficient judicial system peopled by incompetents.