Latest Queens Counsel Appointees Waiting for the White Smoke

Chief Justice Marston Gibson

Whether we like it or not the constitution of Barbados recognizes the Queen of England as the head of state of Barbados. We practice the Westminster system of government and until we pluck the will from somewhere to believe in an indigenous way, Queen Elizabeth II through her agent the Governor General will continue to play that vital role as head of state.

One of the perks of the system which is eagerly looked forward to by members of the legal fraternity – for the status it confers – is to attain the designation of Queen’s Counsel (QC). BU understands the latest group of QCs who were informed four weeks ago have been delayed in their celebration because the list cannot be published until the Chief Justice (CJ) issues the warrants. According to our source, the list was sent to him (CJ) four weeks ago. It is customary for the warrants to be issued as soon as the GG has  written the QCs. There is a little buzz in the fraternity caused by the delay which cannot be explained.

Out of curiosity, and for no other reason, BU would like to know why the CJ is sitting on the warrants? It cannot be that he is very busy because his last sighting on the cocktail circuit was carried in today’s press.

Tales From the Courts Part XI: Sir Frederick Smith Attacked by Nation Editorial – when hypocrisy becomes high camp

Sir Frederick Smith

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.

The editorial gets off to a pompous start:

Rotarian Chief Justice! What Was He Thinking?

Caswell Franklyn, Head of Unity Workers Union

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.

Open Letter To Marston Gibson CJ

Chief Justice Marston Gibson

My Lord,

On this day, September 01, 2011, the day of your installation as Chief Justice, we congratulate you on your swearing in and we thank you sincerely for having accepted the appointment.

The timely administration and delivery of justice in Barbados has long been one of the primary concerns with the BU family. For too long, the Charter of Magna Carta (that celebrates its 800^th Anniversary in 2015) has been flouted and ignored in Barbados. A Charter that clearly postulates that justice delayed is justice denied.

We have read your comments courtesy of the Fourth Estate and we ourselves have been linked to the New York Times blog in connection with your appointment. We are hopeful and optimistic that you are exactly the right man for the job of re-delivering Justice to Barbados.

However, my lord, we also realise that this is not a task in which you can succeed on your own. You will require the support and cooperation of the judiciary, the Bar, the Registry and the People. Last, but by no means least, Government will have to provide you with the tools to do the job, whether it be budget, the setting up of Royal Commissions to deal with unsatisfactory, incompetent or recalcitrant judges or, most importantly, having the courage and resolve to provide its backing (without political or personal bi-partisanship) to support your efforts. We urge everyone, especially Government (by both and whichever political parties) to give you full support.

Welcome To The Chief, His Lordship, Chief Justice Marston Gibson

Newly Appointed Chief Justice Marston Gibson

On August 14, 2010, BU broke the story that our late Prime Minister David Thompson, after consultation with the Attorney General, Freundel Stuart, the present Prime Minister, and with the then Leader of the Opposition, Mia Mottley Q.C., had made the decision to appoint internationally acclaimed Bajan jurist, Marston Gibson, as Barbados’ new Chief Justice.

In making this appointment from outside the inner ring, the word of the late Prime Minister to Bajans has been kept from beyond the grave. The reason for reaching outside the ring has been fully discussed in this forum. A ring infested by incestuous relationships shaped by lodge and other fraternity ties. The course of events that followed are well known.

Many believe His Lordship should have been allowed to assume the CJ position without the hassle he has had to endure.  The Government, out of abundance of caution because it wanted to ensure that no nuisance legal challenges to the appointment could be made, amended the Supreme Court of Judicature Act to use the words “common law” instead of “Commonwealth”. Therefore any politically motivated time-wasting legal challenges to the appointment of an undoubted and eminently qualified son of our soil was effectively thwarted. A son of our soil who, as can be easily ascertained from the Internet, has never forgotten his roots and whose unrelenting promotion of Barbados is well documented.

Now, almost a year after it broke this story, BU is able to formally welcome Chief Justice Gibson back to the land where is navel string is buried to share with us his scholarship, energy and experience and to deliver back to Barbadians a justice system which has lost its way. Chief Justice Gibson inherits a comatose legal system that he must now raise from the dead. It is an gargantuan task, but one in which we are optimistic he will rise to the challenge.

To His Lordship the Chief Justice we say:

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.