Tales From the Courts – The Idiocy of Chief Justice Marston Gibson XXV
The CJ seems intent to blunder from one piece of stupidity to another. Recently, he welcomed a group of pre-teen children to the courts and gave them a lecture on Magna Carta which, this year, is 800 years old. The thrust of Magna Carta […]was to protect the freedoms and human rights of the people of England, or the majority of them anyway. Whether it was successful or not is not relevant to this report. What IS relevant, in terms of the UK, is that Magna Carta forms the bedrock of the UK’s “flexible” and unwritten constitution and has been adopted worldwide, even in the USA.
In 1652, many of the clauses of Magna Carta were adopted by Barbados’ Treaty of Oistins. Considering that by that time, well over 75% of the population of Barbados were slaves, it has to be asked exactly what freedoms and human rights were being protected? Or was it just a political tactic at a time when Barbados was being impacted by the English Civil War? Seems that even back in 1652, the political class in Barbados was thriving and passing laws to protect their own agenda and not to protect the good of the population. And so it is today, even in the judiciary where the CJ, who appears not to have realised that he is not in the USA any longer where judges are elected, seeks political allies to shore up his crumbling position for which he is willing to disregard constitutional and human rights.
The CJ now enjoys, personally, a substantial backlog of cases awaiting his decision for years. And, as we know, the High Court enjoys a record backlog of over 3,500 cases and growing daily, which, in far too many cases, date back over 20 years. So, in his lecture to pre-teen children, no doubt the CJ skipped over (or obscured or simply failed to mention) Section 40 of Magna Carta which translates roughly “(40) To no one will we sell, to no one deny or delay right or justice.” This is a principle also enshrined in the Barbados Constitution breach of which constitutes a breach also of human rights. But what the hell. Why should the man entrusted with the justice system of Barbados allay his political and social ambitions to attend to and redress breaches of human rights? After all, he might have to miss out on a cocktail party or a trip overseas to somewhere like China, just to address pesky little concerns such as constitutional and human rights.
In his pursuit of political allies, the CJ has formed an alliance with the Bar Association, hoping thereby to enlist the support of the BA, itself a fatally flawed organisation, to ensure the continuation of the CJ’s own brand of total and catastrophic incompetence. BU has received a copy of an e-mail sent by the CJ on 11 July 2014 from Trinidad to that decaffeinated journalist Mr Sanka Price, the text of which goes as follows:
“I would be grateful if you would publish the contents of this email unedited so that my response will be read by the public of Barbados in the same way as it was able to read the article published in yesterday’s Sunday Sun. It has been my policy, in the spirit of Alternate Dispute Resolution (“ADR”), to avoid disputes if there is another way to resolve them by private meetings. But there are times when that policy must yield to a public explication of positions I have taken. As we “speak”, I am presently in Port-of-Spain, Trinidad attending a Caribbean Heads of Judiciary meeting about locating money for justice improvement given the present economic crisis. However, I received calls at my hotel regarding the article and felt that an urgent response was necessary. At the outset, let me express my deep disappointment at the article. The newly elected Bar President, Mr. Tariq Khan, and the Bar Council were voted into office on 30 June 2014. A week later, Mr. Khan requested a meeting with me and I readily agreed to have the meeting on 23 July 2014. In addition, I indicated to him that we would schedule a meeting of the Judicial Council for early September 2014 since I neither wished to meet in the August vacation nor to meet at a time when judges were of on vacation leave in July. I am, therefore, not sure what the publication of the article accomplishes when we have not yet met and the date is but 10 days away. But since we are in the public arena, let me say now what my wish list is for that meeting on 23 July. First, 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. The problem is that the Disciplinary committee of the Bar, under the indefatigable leadership of Mrs. Marguerite Woodstock-Riley QC, has been unable to get its head above the staggering backlog under which it labours. Yes, the Disciplinary Committee has a huge backlog of complaints against lawyers! Doubtless, several of the those complaints will be found meritless, but several require investigation. This is an issue which the Bar has not dealt with, at least not publicly, and the Disciplinary Committee needs help. Too many Barbadians view attorneys as belonging to some sort of secret organisation which protects itself even when its members commit defalcations against clients accounts. Nothing could be further from the truth. The Disciplinary Committee meets in the Supreme Court building every Tuesday and works until late in the evening. The suggestion which I plan to make on an interim basis is for volunteer lawyers to assist the Committee with its work but a long term solution is desperately needed if the Bar is not to lose out in the crisis of trust which presently exists. The Disciplinary Rules require that complainants complete an affidavit but we may need to consider the possibility of permitting “whistleblower” complaints by lawyers against lawyers on a confidential basis. Even I have heard of lawyers who owe hundreds of thousands of dollars and who are being permitted to repay the money piecemeal, without any formal complaint being filed with the Committee. This is intolerable and cannot be permitted to continue.
Secondly, the issue has arisen where certain attorneys have refused to pay their annual Bar fees despite the clear language of the Legal Profession Act. I have recently sent a letter out to the Judges and Magistrates directing that such lawyers have no right of audience in the Courts. To their credit, the two Presidents of the Bar with whom I have worked have raised this as a major issue but until recently with the suggestion of Mr. Barry Gale QC, there has been no discussion of the appropriate remedy. This is another matter which I wish to have discussed at our 23 July meeting.
As to the other issues raised by the Bar, I say only two things. With regard to security, I have toiled over this one. I am aware that the lawyers are reluctant to be searched before entering the Supreme Court building but an incident occurred two years ago where an attorney walked into the Supreme Court building with knives. Now truth be told, the knives were to be used as evidence in a case, but the fact that he never voluntarily put the knives through the magnetometer, or even alerted the custodial staff remains a huge problem for us. Security is a major matter of concern and I can tell you that in some metropolitan countries, all persons entering court buildings, including lawyers, are subject to search. As to the parking, it continues to be a bugbear. I note only that when we occupied the old building at Coleridge Street, there was literally no parking, and we managed.
There are some other minor issues with which I will not trouble you or the public at this point. But let me serve notice that with the Court’s new website, the launch of which is impending, the Courts will be a lot less willing to be a “shrinking violet.” We will have a page where our positions will be made clear to the public. Until then, we will use this medium to set straight any records liable to be misunderstood.
I thank you for your kind consideration.
Yours very truly,
Marston C.D. Gibson,
Chief Justice of Barbados”
The outpourings of an egomaniac. And indeed the CJ did write the Registrar instructing her to send such a letter to all judges and magistrates instructing that all attorneys whose legal opinions, for reasons of VAT or based on the constitutionality (or lack thereof) of Sections 44 and 45 of the Legal Professions Act, refused to join the BA. And the Registrar responded requiring the CJ to point her to the law that gave her and him the authority to send such an instruction. It is BU’s understanding that no reply has been received from the CJ.
This year, Messrs Barry Gale (former BA chair) and Tariq Khan (present BA chair) decided to intervene in cases involving non-BA members, seeking to have judges deny audience. Barbados Today has reported extensively on two such cases. The first being that of Mr Vernon Smith QC and the other being Ms Vonda Pile. With the sole exception of the CJ, judges have refused the BA’s pleas to deny audience, but non-BA members have taken to ensuring that every time they appear in court, they have their practicing certificates with them for inspection by the judges. It is reported that Mr Khan has gone so far as to have one of his clients raise the issue in pleadings by way of affidavit. Mr Khan, who has right of audience in England and Wales, ought to know that if he did anything so improper there, he would be struck off. That the chair of the BA does such a thing certainly speaks volumes as to the state of the BA. And have no fear, BU can and will produce documentary back-up if it deems it necessary.
In the case of Mr Smith, the CJ refused audience, thus effectively disbarring Mr Smith from at least his court. Since the CJ was chairing a panel of three judges in the Court of Appeal, BU would be interested in hearing the views of the CJ’s fellow judges. After all, it seems strange that the CJ could make such a determination and enforce it, when it ought to require a majority. And the result is that Mr Smith has sued the CJ for, among other things, abuse of power. BU has been unable to obtain a copy of the pleadings in this case. After all, BU is an anonymous blog and we can hardly go to the Registry and obtain a copy of these public domain documents. If any of our legal eagles can oblige us, we would be grateful, even if it is merely the text and not PDF copies.
It is BU’s take that:
If the BA wishes to assert its position, it ought to do so by way of the courts and file a legal action against dissenting attorneys. BU understands that no such action has been filed and therefore the CJ has no authority to rule on such nor to take any position at all, until the matter has been decided by due court process.
On the matter of payment (or not) of VAT on BA dues, the BA acts, as do all organisations, as mere agents and has no rights to enforce payment of VAT. Such enforcement has to come from Inland Revenue Department which would need to file suit against these dissenting attorneys to enforce payment of VAT. However, that point appears to be moot, as Barbados Today has reported that the BA dues of Mr Michael Springer QC have been accepted by the BA without payment of VAT.
Most disturbing of all is the fact that, if the dissenting attorneys are right on either the VAT or constitutionality points, and these are matters for the courts, not the CJ who must now recuse himself from any dealings with these issues, to decide, then the fact that the Registrar send the Court Lists the BA only and the BA to its members only, may give rise to a serious civil action.
Some years back, as BU reported along with documentary back-up and minutes, Mr Wilfred Abrahams, then chair of the BA, held a meeting with the then CJ (Sir David Simmons) and the then Registrar and, most improperly, was advised by Simmons not to pursue the matter of dissenting attorneys. Even if improper, this was likely sage advice. Now, however, the BA, realizing the far lesser legal abilities and common sense of Marston Gibson, have, in the persons of Barry Gale and Tariq Khan, induced the CJ to step in and put his foot right into the hornets’ nest that is his own big mouth.
Prime Minister, this chief justice needs to go – as quickly and quietly as possible. He is a liability to the justice system and, worse, he is seriously detrimentally affecting our foreign investments and the well-being, constitutional and human rights of our citizens. And he has the nerve to lecture our youth on Magna Carta which, along with the Barbados Constitution, we doubt he has the ability to read and understand.