BU has read with interest the editorial in the Sunday Sun of 10 March 2012 in which the writer launched an attack on Sir Frederick Smith QC for comments made about the Barbados judiciary. BU holds no brief for Sir Frederick but one is left to question the motive of the ‘editor’ of what is regarded as the most widely circulated newspaper in Barbados.
BU’s research confirms that in the mid-90s Sir Frederick delivered a speech to a legal body, an event attended by judges and members of the Bar from throughout the Caribbean. At that time, Sir Frederick stated, inter alia, “It appears to me that judges in Barbados think they have a constitutional right to be stupid.” Sir Frederick is consistent – unlike the “editor” of the Nation.
The tenor of the “editorial” suggests someone has an axe to grind. Could it be there is some fire rage being directed at Sir Frederick Smith because he was chosen to deliver the eulogy for retired judge, Lindsay Worrell, the father of Mr Justice Randall Worrell.
Governor Delisle Worrell (l) CJ Marston Gibson (r)
Anybody remotely acquainted with Dr. Delisle Worrell, the distinguished governor of our central bank, would not be surprised that he is now being judged on such unimportant matters as to how he dresses and what he parades in during the Festival of Flesh that was once Crop Over.
First, let me state without apology, that both Dr. Worrell and our new Chief Justice Mr. Marston Gibson, represent a breath of fresh air blowing through the corridors of snobbery and intellectual arrogance, that passes as brilliance in our country. It is obvious, that neither of these two obviously brilliant minds have caught the eye of those intellectual frauds that masquerade about here as if this country is their exclusive academic playground. Lord Nelson will turn into Bussa ,and vice versa, before the likes of an Owen Arthur or his willing side kick, Clyde Mascoll succeeds in turning Dr .Worrell into” an economist of Lilliputian status”. Anybody, who has taken five minutes to research Dr. Worrell’s work, will know that neither of these two gentlemen is held in the esteem that comes close to the good Governor’s standing in intellectual circles. It simply does not merit any serious discussion.
We have long held Bishops, Chief Justices and Governors of the central bank in such high regard, that we sometimes forget that they are accountable to the people. And that in the case of Governors of Central Banks and Chief Justices, we are the ones who pay them, and pay them very well, taking into consideration our meagre resources. The same can be said of Commissioners of Police and other powerful professionals. By all means we must respect the office but don’t allow them to believe and act as if they should not or cannot be touched.
Marston Gibson, Chief Justice (l) Andrew Pilgrim, President of Barbados Bar Association
In an email to Andrew Pilgrim, president of the Barbados Bar Association, Chief Justice Marston Gibson has slammed the BBA, thereby raising many points that BU has been promoting about the Justice System.
The Chief’s email to Mr Pilgrim is posted to the members section of the BBA website and requires that it be accessed by passwords available to BBA members only. However, BU has been able to obtain a copy and states that it posts this as a matter of public interest!
This comes at a time when BU understands that the Registrar has been told that she may not sit as a judge to replace judges on leave (in this case, Madam Justice Kentish) and that her job is to stay in the Registry and sort out the mess. Instead, Madam Justice Kentish has been replaced during her six month leave by the Chief Magistrate.
Here is what the Chief has had to say to Mr Pilgrim and the BBA.
In 1998, a panel of Law Lords took the unprecedented decision to set aside a ruling of a differently constituted panel of judges of the House of Lords because of the appearance of bias, in an appeal brought by Senator Pinochet, former president of Chile.
The Government of Spain was seeking Pinochet’s extradition from the United Kingdom to face trial for acts that he was alleged to have committed when he was head of state of Chile. He pleaded that he had immunity from prosecution because of his status of head of state when the acts were alleged to have taken place, and that was upheld by the lower courts. To make a long story short, the lower courts’ decision was overturned paving the way for the continuation of extradition proceedings.
Subsequent to the first appeal it was discovered that the wife of one of the panel of Law Lords, Lord Hoffman, was employed by Amnesty International who sought and was granted permission to be an intervener in the Appeal. Lord Hoffman was not a member of Amnesty International, but he had raised funds to assist them to acquire a building.
Marston Gibson became Chief Justice of Barbados under some very questionable circumstances but, nonetheless, he is Chief Justice and it would appear that there is lots of goodwill out there for him to succeed in bringing some order to the chaotic judicial system. It would appear that he is seeking to jettison that goodwill before he gets started. Rather than get on with the job, he is all over the place making speeches more like he is seeking celebrity or going after the popular vote. From where I stand I see him as long on talk but short on action. In my opinion all these speeches might appeal to those that are easily impressed but they are making him look less and less as chief justice material.
In one of these speeches he addressed the issue of praedial larceny suggesting or declaring that the sentences for that offence were too light, and I think that rightly so all Barbadians, except the thieves themselves, would agree. However, as Chief Justice, I don’t think that it is his place to be making such declarations. My question now would be: what would happen if the Director of Public Prosecutions were to appeal one of those light sentences? To my mind the Chief Justice could not be part of the panel to hear the appeal since he has already indicated how he would decide matter. That would give the crook an arguable ground for appeal if his sentence were to be increased. I believe that in those circumstances, to appear fair the CJ would have to recuse himself from any such appeal.
In BU’s previous blog about Alternative Dispute Resolution (ADR) most if not all of the comments shared were favourable to its quick implementation. We cannot repeat enough times how lamentable it is that – to quote CJ Gibson – ‘our Courts are in crisis’ and ADR was not introduced under the former CJ as one tactic to assist with the efficient handling of the case backlog in our Courts. Nevertheless for his effort Sir David Simmons was rewarded the obligatory Knighthood.
Whilst the OECS Practice Directions exist for Barbados to follow – and it seems ‘strange’ that we should be following the OECS on this matter in much the same way that as a jurisdiction it has already achieved CAT 1 status contrasted with Barbados’ Cat II – there is merit to the CJ advocating for expanding ADR to include family law matters. Anyone who has observed how family matters are dealt with by the Barbados Courts is driven to be very sympathetic to the parties on both sides of the matter. Most oft than not the principals are from the lower rung of society with few options available to them except to wait on our Courts to give currency to the view that justice delayed is justice denied.
Barbados’ new Chief Justice, Marston Gibson, has admitted that the Barbados courts are in crisis. In a speech to the Chamber of Commerce and Industry yesterday, he stated, “I am very conscious of the fact that our courts are in crisis and I am conscious of the fact that we need to do something about it.” .
One of the courses the CJ intimated that he would follow is one long espoused by BU, that of Alternative Dispute Resolution (ADR). BU is also happy to read of the hearty support which President of the BAR Andrew Pilgrim has given to his Lordship’s approach.
The CJ is looking at the Organization of Eastern Caribbean States (OECS) Practice Directions. BU assumes that the CJ refers to the Rules contained here.
Barbados is to open its Courts on June 24, 2011. The burning question is if after over a year without a permanent sitting Chief Justice, we can expect Marston Gibson to warm the bench as the new Chief Justice. Would the shareholders of an important and profitable corporation appoint an acting CEO for one year?
Can we expect Mr. Gibson’s appointment to be gazetted FINALLY?
Marston Gibson, Chief Justice of Barbados Designate
If there is one thing the government of Barbados must plead guilty, it is the procrastination and vacillation which has affected their ability to appoint a Chief Justice of Barbados. The denial given to Sir David which forced him into an early retirement would have signalled to the public the government had a plan to attack the many issues which are afflicting our Judicature.
If there is one attribute which recommends Barbados it is the fact our country is still regarded as an orderly society. The strength of our democracy, law and order; its political and social stability has become a symbiosis. At the epicentre of the administration of justice sits the Chief Justice. Sir David was sent hurrying on pre-retirement leave on the 21 Jan 2010, more that a year ago. Is it conceivable to think that any company wishing to be successful would want to have an entrenched appointee at the top? It has nothing to do with the vacuous and spurious excuses being offered to the effect Justice Sherman Moore is competent.
Besides the ugly and embarrassing situation which must be tarnishing the reputation and credibility of our court system has been the silence of those who should be most vociferous given the tardy appointment of a permanent Chief Justice. Recently appointed President of the Barbados Bar Association Andrew Pilgrim has been uncharacteristically silent. The Barbados Labour Party Opposition who registered disagreement when Sir David was refused the extension, also opposed the amendment of the Judicature of the Supreme Court Act, which many believed cleared the way for Marston Gibson to take up the post, has been passive on the issue. The most resounding silence has been the local media who although willing to do a public relations job on Marston Gibson, felt hat and all, has shown a reluctance to disseminate the bigger issues created by his non appointment.
Submitted by Caswell Franklyn, Head of Unity Workers Union
The Saturday Sun of March 20, 2011, reported that the House of Assembly passed an amendment to the Supreme Court of Judicature Act just after mid-night. That amendment partly paved the way for Mr. Marston Gibson to become the next Chief Justice of this country.
The lead-up to the amendment generated a considerable amount of controversy, and I would have been interested in the debate. Unfortunately, it took place after my bedtime. Many persons in this country rightly expressed abhorrence when they realized that the amendment was being done to facilitate one predetermined candidate. Their abhorrence would have been more acute if they were aware that it is normal practice to change qualifications to enable the appointment of individuals, who did not make the grade.
This matter with the Chief Justice only came to light because the qualifications for that post are found in the Supreme Court of Judicature Act, and any changes would require amendments to that Act. On the other hand, in the Public Service, when Government wants to change the qualifications to facilitate a particular individual, the Minister for the Civil Service merely signs an order to amend the Civil Establishments (Qualifications) Order, which is generally done in secret. In most cases, public officers only find out about the changes when they are about to apply for a senior post or when they are overlooked for promotion.
By way of example, when a vacancy occurred in the office of Chief Marshal, the candidates required: “Approved qualification in Public Administration AND Para-legal Studies” among other things. The qualifications were changed by replacing “AND” with “OR” in order to facilitate the preferred candidate.
There is much speculation as to whether the criteria that determines the eligibility of a person to serve as Chief Justice of Barbados will be manipulated to accommodate the appointment of the candidate favoured to fill that post.
To suggest that such a blatant act of self-serving connivance could even be contemplated by a government of Barbados regardless of party, would give rise to the frightening prospect that the end of democracy as was enjoyed under past regimes is now under serious threat.
Is it inconceivable that the integrity of our country could be irreparable tarnished simply to lend credence to a decision reached without the benefit of due diligence?
Now that it is confirmed that you are to be the new Chief Justice of Barbados, the BU family has some questions to put to you. These questions are not political in nature, but solely about the judicial system which you are to head.
At present, when counsel wishes to commence proceedings or serve documents such as statements of defense, affidavits etc., it is required that they have these documents sworn at the Registry, obtain certified copies and then serve these by personal service on the other parties, either personally or on their counsel. Do you anticipate streamlining this by, perhaps, allowing such documents to be sworn before any attorney-at-law licensed to practice in Barbados, filing copies with the Court/Registry and then effecting service on the other parties by mail or fax, using an affidavit of service sworn by the person who posted the documents/sent the fax, as back-up?
At present, small claims matters are cumbersome. Do you anticipate introducing an internet system by which these matters can be filed and argued and, only where necessary, involve appearances? In other words, simplify the process of small claims so that litigants in these will not be disadvantaged if they choose to represent themselves, rather than incurring the (sometimes greater than the claim) expense of being represented by counsel?
It is clear that the case management system does not work. What changes do you anticipate introducing in case management?
There is a considerable back-log of cases before the courts (both civil and criminal). How do you propose to get rid of this back-log in general terms?
There are many cases that have remained part-heard for years. The usual excuse is that the judge has been assigned to assizes or has too heavy a case load. What measures do you propose to introduce to solve this problem?
Leslie Haynes QC - President of the Barbados Bar Association
In the last week or so, Nation “journalist” Tim Slinger wrote a report on the fed-up Barbados Bar. The basis of his report was a letter from Barbados Bar Association (BBA) Chairman, Leslie Haynes Q.C. to Acting Chief Justice Sherman Moore.
According to Leslie Haynes, “As president of the Bar, it is my duty to inform you of the general feeling of the Bar, that the wheels of our judicial system are grinding to a halt.” Haynes subsequently released a copy of this letter to the Nation.
BU has held back on commenting on this matter lest we be dragged across the coals by the legal beavers who frequent this blog space. The report could hardly be done justice until a smidgen of investigative journalism was practiced. It is no secret how BU feels about the local Fourth Estate and by extension the Nation’s capacity to engage “investigative” journalism approaches; a prerequisite to being a professional journalist.