Tales from the Courts – Chief Justice Marston Gibson Puts Foot in Mouth XXIII
In a statement from Trinidad extracts which are published in the Nation and Barbados Today, the Chief Justice has said:
“I want to find out what is the Bar’s plan to tackle the growing instances of attorney dishonesty. The twitter in Barbados is that there are several attorneys who are in the same position as the attorney whose case is presently pending before the Court of Appeal,” he said.” [BU’s EMPHASIS]
BU stands to be corrected, but does the CJ not chair the panel of the Court of Appeal before whom this case, recently highlighted by BU has commenced and been adjourned?
If this is indeed the case, for the Chief Justice Gibson (CJ) to allude to it publicly in any way, far less in a press release/statement, is highly improper if he is sitting on the hearing. It is highly improper for any judge to allude in public to a case on which he is sitting – such statements can and must only come from the Bench. And the CJ, not only was not on the Bench, but out of jurisdiction. However, for the CJ, who is head of the Court of Appeal, to make such a statement, especially to the Press, is not only gross misconduct, but brings the courts into disrepute. That is grounds for dismissal from office.
BU poses our concern to the Prime Minister – how much more does he intend to allow of Marston Gibson to bring the courts further and further into disrepute, usurping the powers and prerogatives of the executive and generally making Barbados into an international laughing stock, before he, as PM, give him the sack. There are now abundant grounds to do so. Swift action taken now would reassure the international financial community that Barbados is determined to cure our terminally-ill justice system. Procrastination will merely confirm the international view that Barbados has become a banana republic. As we said before, PM, we have ears to hear and we are listening.
What really bothers many, is the total lack of comprehension that Marston Gibson has displayed as to what his job is. His suggestion that he and the BA will work things out. We refuse to believe that representations have not been made on many occasions by the BA on the matter of failing to call and constitute a meeting of the Judicial Council in contravention of Section 93 of the Supreme Court of Judicature Act, Chapter 117A, of the Laws of Barbados. For the BA to even consider arising from their habitual lethargy to take a vote to sue the CJ means that he has had countless requests to comply, and has refused or ignored them.
He will work it out? He was brought here to fill the role of CJ, not to stand for political office as some judges have to in the States. And yet without exception everything he has done since taking office has been political in nature, the agenda of which has been directed solely towards the Marston Gibson Political Party. His recent statement is political – he tries, unsuccessfully, to divert attention on to other areas of concern, like teefin lawyers and the matter of BA membership, the first of which is none of his business unless and until the matter comes before the courts and the second is none of his business, unless and until the BA files legal proceedings before the court against the dissenting lawyers. And Marston Gibson would never have taken the time and effort to tear himself away from the cocktail circuit around the world, this time Trinidad where doubtless the CCJ is laughing at him, and us, behind his back, unless politics, not concern for the justice system, made it essential.
Of course, he trots out the tired old chestnut of ADR. The same ADR he has been going on about ad nauseam for the last three years, as if it is the Holy Grail of jurisprudence. ADR is something that can only work if all parties agree to what is suggested in the mediation sessions by the mediator. If they do not agree, the matter comes before the courts. In any case, compulsory ADR prior to filing court proceedings, can only really be effectively used in matters of family law. But the CJ trots it out every time he needs to cover up for his incompetence and complaints about the backlog, as if it were the universal judicial panacea, which it is not, nor can it ever be. This time, he has trotted it out in relation to the BA’s possible legal action against him. BU has been made aware that proceedings in ADR are confidential and without prejudice – so Gibson now seeks to have the case decided, as it were, secretly and away from the eyes and knowledge of the Bajan taxpayers who pay his salary and his multitudinous perquisites and foreign trips.
It is like watching a not-too-bright young lawyer just out of university trying to run what is in effect the largest law firm in Barbados and turning that law firm into a standing joke both at home and abroad, at the expense of the very people who finance it – and Marston Gibson has the nerve to talk about teefin lawyers as he presides over the wasting of public funds. In a private law firm, irrespective of size, Marston Gibson would be given the order of the boot. BU fails to see why that is not being done by the chief executive, the Prime Minister. After all, when the opposition was in government, they gave us David Simmons and to date have not made any attempt to apologise. The PM changed the Constitution to give us Marston Gibson and it has clearly not worked out t’all, t’all, t’all. For the PM to remove him, far from giving political ammunition to the opposition, would demonstrate to the electorate that the PM has the balls it takes to make a difference – and the opposition is hardly in any position to say anything, given their appointment of David Simmons.
But it gets worse. Take another look at Gibson’s June 19 2004 letter to Barry Gale as published by BU. The game here is spot the error. In his letter, Gibson refers to Section 45(3) of the Legal Professions Act. CONTRARY to what Gibson has said, that section states:
“(3) A Practising Certificate issued to an attorney-at-law shall be of no effect until the annual subscription required by section 44 has been paid.”
Section 44, the relevant part of it, states:
“(1) An attorney-at-law shall, on each occasion on which a Practising Certificate is issued to him, pay to the Bar Association the annual subscription which is or would be payable by him under section 45 as a member of the Association, and shall thereupon (if not already a member), notwithstanding anything in any by-law, ordinance, order, rule or regulation of the Association, become by virtue of this section and without election or appointment by the Association, a member of the Association.”
Therefore, to any reasonably cognitive person, except apparently our honourable chief justice, this would be interpreted as meaning that for any attorney to practice law, he must be issued with a Practicing Certificate (by the executive) only after which can he join the BA. But the Constitution specifically provides the right of association or NON-association, except in specified classes, of which the practice of law is NOT one.
And at the end of the day, what happened to Gibson’s June 19 letter by which (presumably by copy to her, but she is not listed as having been copied on his letter) he instructed the Registrar to inform non-BA members of his decision? The Registrar informed him that she would not do it, as she did not have the authority to do any such thing. She refused! Now, we will wait to see if the judges of the Court of Appeal and the High Court similarly refuse to accept Gibson’s instructions, on the basis that he lacked the authority to issue such instructions in the first place.
Meanwhile, last week, Mr Hal Gollop QC, who is not a member of the BA, appeared in the Court of Appeal and the panel was chaired by none other than Gibson himself. Mr Gollop QC is not a member of the BA and is on Gibson’s list provided to him by Barry Gale. And did Gibson refuse Mr Gollop audience? NO!In fact, Gibson even issued a few orders in the case, before it was adjourned.
It is appropriate at this time to revisit the matter of the BA’s Disciplinary Committee, or as many people refer to it instead, the “Get Out of Jail Card for Teefin Lawyers” (“GOJ” for short). The Act requires that the members of the GOJ be nominated by the Council of the BA. Yet, instead of nomination as is clearly and indisputably required by the Act, the BA has chosen, in defiance of law, to elect at AGMs the members of the GOJ, so, instead of it being a body nominated by the BA council to hear the complaints of the general public, it is instead a matter of political lobbying, a practice close to the American heart of our Bajan born CJ. After the last elections, cash and favours for votes was on the minds of all Bajans. Is there anyone who thinks for one moment that the same sort of thing does not happen with the GOJ? Might this not explain why so very few teefin lawyers are brought to justice?
So, Prime Minister, you are a senior lawyer, but our question is put to you as Prime Minister. How long are we going to have to put up with a CJ whose paucity of knowledge of the law and the rules, guidelines and limitations of the justice system has now brought the courts into extreme national and international disrepute? For, if the CJ does not know and is incapable of doing his job, how in hell can you expect anyone else to? And how can you tempt foreign investors to any country when the justice system is that of a banana republic? We have ears to hear, Prime Minister, we are listening most attentively.