Chief Justice David Simmons Failing Report Card

Sir David Simmons

In recent days the length of time persons have to remain in prison on remand has been the subject of hot debate. Last week retired jurist Sir Frederick ‘Sleepy’ Smith contributing to a radio call-in show called on the powers that be to do something to ameliorate the situation; ideally a society concerned with justice should want this problem to be nonexistent.

BU agrees with Sir Fred. The timing of the current debate is interesting. It makes one wonder if Sir Fred is using the debate to cast a shadow on the performance of the outgoing Chief Justice (CJ) David Simmons. The Barbados Bar Association (BBA) through its president Leslie Haynes QC has been very generous in its praise of the retiring CJ. Similar praise has been showered by the Barbados Fourth Estate if we are to judge from the articles in the press and commentary by talk show hosts et al. Interestingly Leslie Haynes in responding to Sir Fred’s concern has pointed to the backlog of cases in the magistrates courts as part of the problem. Sir David’s expected response to the spotlight on the Barbados Judiciary was to point blame elsewhere. If we accept Leslie Haynes’s reason for part of the problem of people being on long remand, it begs the question – doesn’t the Magistrate’s Courts fall under Sir David’s purview?

The announcement recently that the CJ was not going to have a two year extension to his contract renewed has provoked discussion galore in Barbados, renewal had always been automatic in the past. To others in the know the force out of the CJ would not have come as a surprise. The quick transition by Sir David from politician to CJ has always been of concern to many Barbadians.  Any threat to the perceived independence of the judiciary is likely to have that affect on Barbadians. There is a view that David Simmons, as attorney-general, did everything he could to score political points with the electorate by a number of means. One of these was that he shifted what is now the Greenland Landfill from its logical and originally planned location, in Saint Thomas and his constituency, to the environmentally friendly area of the Scotland District that it has no right being in. However, there was one other that did not succeed and provides us with a true measure of his dedication to achieving political objectives. It concerns the death penalty.

Fully knowing that 98% of the Barbados electorate was in favour of the death penalty (and 98% of the BBA was against it) David Simmons MP at the time launched himself on the platform that he was going to ensure that executions were carried out. Whether you are for or against the death penalty, there has to be a distaste for anyone who would seek to advance their political position and aspirations by using the emotive issue of the death penalty. Most Barbadians have forgotten but the dashed expectations which were fuelled by politician David Simmons still resonate.

Relying on our sources in the legal fraternity the CJ is a competent, but average, jurist and, in days of old might have been considered a master politician. In this day and age, many will regard his main legacy as the advancement of incompetents within the judiciary of Barbados.

As Attorney General, he appointed on the court of appeal someone with a record as registrar which was not flattering, the mess in that department continues to this day. Court files disappearing or being misfiled is not an uncommon event. Who is that registrar? Marie MacCormack, better known today as Lady Simmons.

Should we describe Marie MacCormack’s appointment to the bench as being nepotistic? What about those appointments which many in the legal fraternity label as incompetent – Frank King and Chris Blackman come to mind. Those appointments have been followed by Madame Justices Cornelius and Kentish. All of these appointments have occurred under the watch of Sir David Simmons.

It would be true to say that David Simmons’ tenure as Chief Justice was enhanced by appointments over which he had no input, lawyers and jurists like Errol Chase, Colin Williams and Frederick Waterman were on hand to make Sir David’s court look competent and carry along those regarded as incompetents he had appointed, but only after massive amounts of money had been spent in litigation and appealing the decisions of the lesser lights that he had appointed to the lower courts and magistrates courts. It would be satisfying if our Fourth Estate would do some investigative work, never mind the threat of the ‘lodge’. BU know how things get done in Barbados and despite the political rhetoric of Prime Minister David Thompson nothing significant has changed under his government in the way business is conducted

The legal buzz suggests that it came as no surprise when Sir David appointed his wife to the Court of Appeal to join some our more competent jurists – that way, as judges customarily sit in a panel of three, her lack of any credential other than a law degree would be overruled by far wiser heads. It is suspected that this is why David Simmons finally appointed his friend, Frank King, to the Court of Appeal – so that his title of Most Appealed Judge for every year he was on the bench, would go away due to the fact that others would write the judgments with which he merely had to concur.

Alluded to, Sir David Simmons ought to have expected he would have remained as CJ for another two years given. However, many senior members of the Bar made it clear to the Prime Minister and to the Governor General that he had to go at once, otherwise they would invoke the constitution and have him fired. That is actually what happened, although the Barbados Fourth Estate would never dream of reporting it…..and the legal profession would rather Bajans never knew of the crisis, since it might erode confidence in them.

Justice of Appeal Frederick Waterman is acting CJ and the government is advised to confirm him for the two years remaining of his eligibility. It would suggest continuity within our judiciary which is important. It is noteworthy had former Prime Minister Owen Arthur not given into political skulduggery by appointing David Simmons as Chief Justice in the first place, the choice would have been down to Chase, Waterman or Williams to replace Sir Denys. Better late than never some will say! The big advantage to appointing Waterman as CJ is that it will give the government breathing space to appoint a worth CJ and hopefully distant itself from the questionable decision to have appointed outgoing CJ David Simmons.

Back to Sir Fred’s claim which clearly conflicts with the accolades being showers on Sir David by the Barbados Bar Association and the Fourth Estate. Bear in mind the magistrates courts fall under the purview of the Chief Justice.

In the magistrates courts where remands that could easily be said to breach of that most basic of democratic human rights, habeas corpus , are prevalent and worse. We see magistrates who we forget are mere mortals, having so much power over our lives – and we see some magistrates who ought to be appointed to the High Court continuing to be magistrates, simply because they are not a part of the private fan club or fraternity? Our undervalued magistrates, of which there are not many, have during the tenure of David Simmons as both attorney-general and as chief, had to watch their less than competent colleagues elevated. Note this has happened under the tenure of the outgoing CJ.

The long periods of time we have held people on remand in our prison is a clear violation of all that is decent. The damage to reputations before such persons have been found guilty represents a miscarriage of justice. To hear that we have people who have been on remand at the pleasure of Her Majesty for up to six year is reprehensible. Note the outgoing CJ is being showered with accolades by the Barbados Bar Association whose members should know better. Note the Barbados Fourth Estate continues to be true to its ‘not rock the boat policy’ by lavishing praise on the outgoing CJ as well. Where can the people turn for leadership, Thompson?

Prime Minister David Thompson we are watching you. In your recent mouthings on the subject of appointing a CJ you said the right things but so far into your administration we have noticed how you have been quietly distributing the fatted calf within the legal fraternity.

BU cannot imagine former Prime Ministers Barrow, Adams or St John doing anything to the detriment of the courts. Some in the legal fraternity argue that two Prime Ministers of more recent vintage have caused justice in Barbados to suffer greatly. Thompson’s commitment to building out a society and all that goes with it makes the transparency that should go with the appointment of the next CJ very important.

If Waterman is appointed the next Chief Justice, who will replace him after two years? Unfortunately those competent in the opinion of BU are all past the age of retirement.