On June 19, 2004, Chief Justice Marston Gibson weighed in on the dispute that BU has been covering for some time. That of the Constitution vs the Legal Profession Act Cap 370A. BU has obtained a letter from the CJ to Mr Barry Gale QC, the president of the Bar Association – see letter sent by the CJ to Barry Gale.
The history of the Constitution and the Legal Profession Act goes back to the very beginning of the Act and the formation of the BA. The BA’s first president, Mr Jack Dear QC (later Sir John Dear) realising that the Act was fatally flawed and would not stand up to a constitutional challenge, declined to challenge attorneys who opted not to join the BA, most notably Mr Bobby Clarke, who has never been a member of the BA and between whom and Jack Dear, there was no love lost. If anything there was a mutual and well-known animosity. Successive presidents of the BA have also declined to involve themselves in a face-to-face fight against the Constitution, until the advent of Mr Leslie Haynes.
Chief Justice Douglas refused to involve himself, as did Chief Justice Williams and BU has already published the minutes of the BA in which a consultation between the Registrar, Simmons CJ and Simmons CJ’s then prospective son-in-law and BA president Wilfred Abrahams (now Senator Abrahams) in which the advice of Simmons CJ was to, in effect, left it lone – see Tales From The Courts &ndash XII;Barbados Bar Membership Revisited – Registrar and Sir David Simmons, Wilfred Abrahams Exposed
In order to practice law in Barbados, it is necessary to satisfy the Government, not the Courts, that you have the required qualifications, whereupon you pay your fees for a practice certificate that is issued by the Government, not by the Courts. That done, you have the right to practice. The determination of whether or not an attorney has the right to practice is a matter for GOVERNMENT, not the CJ.
The Constitution of Barbados, Chapter III PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF THE INDIVIDUAL Section 21, specifically confers the right of association and assembly, OR NOT, except in specific cases, all of which involve matters of defence, public safety, public order, public morality or public health; or that is reasonably required for the purpose of protecting the rights or freedoms of other persons; or that imposes restrictions upon public officers or members of a disciplined force. Attorneys do not come under any of those classifications.
In which case, the BA is a trade union and the right to opt out of membership of the BA is a fundamental human right given under the Constitution that cannot be overset by any other legislation.
In pursuance of its report into this issue and the letter from the CJ, BU has taken advice from two senior judges within the Commonwealth who are authorities on constitutional law. These, having expressed their astonishment and dismay at the CJ’s letter, have posed two questions in relation to the CJ’s letter and BU now passes these on.
On what authority does the CJ think he can revoke and nullify an attorney’s practice certificate?
In as much as a ruling on the matter requires a declaration from the Court, such a declaration can only come as a result of proceedings in court in which there is an applicant (the BA) and defendant(s) the dissenting attorneys. Has any such proceeding been brought?
If the CJ does not have the authority to revoke the practice certificates of attorneys and no proceeding has been brought, then the CJ has acted extra judicially and outside of the scope of his authority. Worse still, as he is CJ, he has rendered it impossible for any member of the judiciary to hear such a case, because of prejudice. Worst of all, he has denied the Constitution.
We all know that the Constitution was changed to allow Marston Gibson to take on the job of CJ. However, the changes to the Constitution that would give legitimacy to his latest faux pas would put Barbados at odds with the dictates of the United Nations in respect of the fundamental rights and freedoms of the individual and cause considerable international censure and concern.
It is well known that the CJ has failed to obtain any support from the members of the Bench and support organisations, because he has shown no competence or understanding of the job he was hired to do, which is NOT to be an adornment on the cocktail circuit, as he seems to think. The only decision the CJ, the head of the judiciary, has given in his years in office has been to read a decision written by Williams AJ (ret’d). The CJ is yet to deliver a single decision under his own authorship. Instead, this head of the judiciary occupies his few judicial hours dealing with bail applications which, apparently, prevents him from responding in public to the concerns raised recently by the DPP, amongst others. He has seemingly decided that the role of CJ should be that of a glorified magistrate.
His letter to Barry Gale must be seen, therefore, as being political and not judicial and an attempt to garner support from those licensed legal practitioners who have chosen to be members of the BA (which is their right under the Constitution, in the same way that it is the right of other licensed legal practitioners NOT to be members of what is in effect a trade union).
Therefore, by acting extra-judicially, the CJ has conducted himself in a manner that constitutes gross misconduct and that brings the judicial system into disrepute.
Bajans of all walks of life have long been aware that the CJ has exhibited a total lack of competence and has no clue what his job is, or should be. It is time he went, which was not going to be so straightforward, until now. Now, the PM has all the grounds he could possibly need to either demand a resignation or to start the process of dismissal of Marston Gibson. And as Barbados’ foreign investment continues to decline to the extreme prejudice of the country and its peoples, we call on the Prime Minister to invoke the very Constitution that the CJ has decided to ignore (or doesn’t understand) and get rid of this blot on our justice system.