The Tribune

By ADRIAN GIBSON

ajbahama@hotmail.com

THE so-called Swift Justice Programme has yielded little and has, in all truth, the potential to negatively impact the public’s perception of judicial independence, undermines any notion of public confidence in the justice system and infringes upon the constitutional separation of powers.

Attorney General (AG) Allyson Maynard-Gibson promotes the swift justice initiative as being about case management, “bringing all stakeholders and the administration of justice together so that we would take away avoidable inefficiencies” and, in her opinion, ensures that persons are “routinely brought to trial in 2 years”. Firstly, who are the stakeholders that the AG has brought together in all the time that she has been touting this concept of swift justice? And, secondly, it is clear that trials are not routinely being held in two years. Clearly, swift justice is nothing short of a catchphrase and a political scheme.

It is a political scheme that boasts about conviction rates but fails to consider the fact that swift justice should also account for those innocent persons who have had their matters ventilated within a reasonable period of time and been found not guilty, of the facilities being provided to judges and court staff and the conditions under which they work, of having properly functioning registries where documents could be filed without having to wait forever or file them once more because the hard copies were lost and the registries have yet to enter the 21st century with large-scale computerised record keeping.

Where is the improved system relative to jurors and jury selection?

Since we are talking about swift justice, why do our Supreme Court Justices have to endure working conditions that are less than that of Supreme Court’s throughout the region? I am in Ansbacher House every week; sometimes, I am there almost daily. I have said before that, when one considers the condition of the Supreme Court building, the executive branch of government must view that court as the Supreme Court of Samana Cay and surely not the Supreme Court of The Bahamas. Otherwise, they would have much more pride in the facilities and the judges’ comfort.

If the AG wishes to tout her swift justice scheme, could she also explain to the public why one elevator in the Ansbacher House building is operational? Could she explain why the elevators move slow as snails so much so that one could eat an apple and a banana, and perhaps drink tea, without much of a rush? Could she explain why the elevators are so rickety? These are simple, basic questions.

Okay, here’s an easier question for the AG. How is it that there are no microphones in the Magistrate and Supreme Court for judges and counsel? How is it that there is no open wireless internet? Why have judges been relocated to such “jam-up” quarters where their staff can hardly manoeuvre without bumping into a piece of furniture, their comrade or walking into the judge’s office? The staff and the judge are in such close quarters that they practically share the same office.

And then there is the rat and rodent issue... why hasn’t that been addressed? And what about those on-again, off-again air condition units at the Supreme Court building?

When will lawyers be able to get a transcript from the Court Reporters Unit within a reasonable time, without having to write, beg, plead and chase down court reporters over and over and over before a transcript is produced?

Does the AG have any empirical data to show how the backlog has been reduced since she launched her swift justice scheme?

Allyson Maynard- Gibson, a self-appointed Queen Counsel (anyone doubting this can read the Act), is perhaps the first Attorney General in the history of The Bahamas to talk so much.

Mrs Gibson seemingly fails to understand that, due to her position, her never-ending political statements on swift justice could potentially compromise matters before the courts.

I have always held the view that Mrs Gibson’s utterances amount to wind-baggery.

Clearly, I am not the only one.

On November 6th, Supreme Court Justice John Lyons (as he then was) made a critical and controversial ruling that accused the government of having broken the law— twice!

According to Justice Lyon’s ruling, in what appeared to be a deliberate act to circumvent the law, the government failed to establish a commission in October 2006 to assess the salaries and pensions of judges as mandated by the Judicial Remuneration and Pension Act.

He wrote that the Act stated that, subsequent to the first report of the original commission (in 2000), two other committees were supposed to be constituted in 2003 and 2006 - according to the Constitution, commissions are to be constituted at three-year intervals.

However, neither commission came to fruition, although an ad hoc commission (2005) that relied heavily upon the former commission’s (2000) report, criticised the government’s posture and strongly recommended that it comply with the committee’s report in accordance with the provisions of the Act.

Because the government failed to adhere to the Act, judges’ salaries remained stagnant – undoubtedly a violation of Article 135 of the Constitution of The Bahamas.

Indeed, Justice Lyons was correct in his estimation that the government had broken the law and so now, due to the present government’s ineptitude, The Bahamas now faces a constitutional crisis.

I wrote then: “It is not unreasonable to assume that the Constitution was ignored for political gain. Why would the government attempt to put judges at an economic disadvantage – could it possibly be a ploy to manipulate judges into granting favourable verdicts, preferably convictions?”

In his judgment, Justice Lyons espoused the virtues of an independent judiciary. In schooling Mrs Maynard Gibson, he said: “The Judiciary is not an agency of government. It is an independent body established under the Constitution. The role of a judge is to ensure a fair trial; fair to the prosecution and fair to the defence, as mandated by the Constitution. A judge is never to be judged by a ‘conviction rate’.”

“The independence of the Judiciary is the pillar upon which our Constitutional freedoms are built. Judicial independence is at the heart of practically every UN charter on human rights,” he said.

Justice Lyons stated that the prosecution’s role is to assist in the prosecution of a fair trial and that no prosecutor, as a minister of justice, should be judged by an inane criterion such as their rate of conviction. He asserted that “any person holding that view needs to be disavowed of it now”.

It has become clear that the Chief Justice and the wider judiciary must pronounce, loudly and publicly, that the Office of the Attorney General and the judiciary are separate entities, the former being headed by the AG and such a person having a mandate to develop relations with the other.

I concur with one of my mentors former Governor General Sir Arthur Foulkes when he stated, in one of his previous columns that “perhaps the time has come for another minister to be given responsibility for relations with the Judiciary as this might remove any lingering confusion in the public’s mind. In some jurisdictions, there is a Minister of Justice”.

Following Justice Lyons’ 2006 ruling, Mrs Gibson responded, calling the ruling a “scurrilous and venomous attack” that she felt was “unwarranted”.

The AG also said: “Bahamians believe in decency and good order and I believe that you just have to listen to the public. People are shocked that a judge would speak in such a manner and there are appropriate ways in which concerns are brought to the public”.

Mrs Gibson’s comments appeared to be rather vindictive in nature. Where was this nobility when former Registrar Elizabeth Thompson was unceremoniously attacked in the House of Assembly and forced from office in 2005?

Because Justice Lyons ruled that the judiciary is not independent, Mrs Gibson attacked him with fighting words, objecting to his use of the bench to highlight his concerns and seemingly suggesting that it was contrary to the Bahamian public’s belief in “decency and good order”.

Another issue of contention was Justice Lyon’s ruling that the ‘swift justice’ initiative, promoted by the AG, was merely a “self-promoting piece of headline hunting”.

The learned judge said: “I will now turn to the press release. It is, at best, a self-promoting piece of headline hunting. It purports to be under the authority of the Attorney General ... At worst, its clear inferences and implications give a chilling picture of (a) dangerous situation existing within this country. To even contemplate writing a press release like that (let alone actually releasing it to the public), clearly shows that its author has no concept of judicial independence, no idea of its importance and above all, absolutely no respect for the judiciary. That it is under the hand of one of the highest legal officers in the land immediately prompts the critical question. Why and how, is it that such disrespect and ignorance is present in one so senior? For surely if such an attitude is found there, like the ‘fair trial’ issues, it must be systemic and thus present in the attitudes of many other lawyers here. Where, I ask, does this come from?”

He went on to say: “It is easy now to see why there is such disrespect for the independence of the Judiciary, and the Judiciary generally in The Bahamas. If those in control of the daily business of government feel free to act in that manner, why shouldn’t anyone else? That explains the press release with its inference that the Judiciary is one of the ‘agencies of government’: the ‘review’ of the judges’ performance; the performance criterion of a successful conviction rate. And published just eight days after the six-month time limit expired... is too cynical to suggest that the press release is capable of carrying the inference that if the judges keep up those sitting days and delivering those convictions (regardless of a fair trial or not), that the judges will stimulate the will of the government enough to get a ‘little something’ in their next pay packet?”

“I am deeply disturbed by all of this. I am in no doubt that, whichever way it is looked at, this is a very serious constitutional crisis. I (and other judges) have warned against this repeatedly, trying to get some action to prevent the obvious. I could see it coming. Now we are exactly where we feared it would end up, ” he added.

What’s more, Senior Justice Anita Allen (now President of the Court of Appeal) addressed the issue of the independence of the judiciary quite lucidly in her February 1, 2007, judgment in the case Regina v Jones. In that case, Wayne Munroe, QC, had submitted, at a re-sentencing hearing on behalf of his client, that the judge was “constitutionally infirmed” due to then Attorney General Allyson Gibson’s publication of a report card on the judge’s performance and “by a public statement by her that judges were accountable to the public, and the failure of the government to appoint a commission in accordance with the provisions of the Judges Remuneration and Pensions Act”.

The judge stated that she understood Mr Munroe’s argument to be that a result of the actions of the government, the court was not independent and impartial to afford his client a fair hearing in accordance with Article 20 (1) of the Constitution.

In her judgment, which could be viewed as a clear rebuke of the AGs/government’s overreaching, Justice Allen wrote: “The foundation of judicial independence is the freedom of a judge to hear and decide cases without undue or improper influence, inducements, pressures, threats or interferences, direct or indirect from any source or for any reason.

“Lamer C.J. in The Attorney General of Quebec v Lippe’ [1991] 2 S.C.R. 114 expressed it in this way, he observed: ‘Historically, the generally accepted core principle of independence has been the complete liberty of individual judges to hear and decide the cases which come before them: no outsider - be it Government, pressure group, individual or even another judge - should interfere in fact, or attempt to interfere with the way in which a judge conducts his or her case and makes his or her decision.’ Indeed, Article 20(1) provides that a person charged with a criminal offence shall be ‘afforded a fair hearing within a reasonable time by an independent and impartial court established by law’,” she stated.

Ultimately, she held that she was not “constitutionally infirmed” and that she met the requirements of Article 20 (1), however the judge highlighted the importance of an independent judiciary, public perception, following the law relative to judges salaries and urged that judicial independence “must be jealously safeguarded and any incursions or assaults on it must not be tolerated.”

In my opinion, the current manifestation of swift justice infringes upon the judiciary.

The swift justice promotion is nothing more than a farce, a political scheme dreamt up to portray the image of being tough on crime, particularly as crime is likely to become a pressing election issue since it has skyrocketed over the past five years.

The “swift justice” mumbo-jumbo should be swiftly abandoned as there is no such thing in a democratic society where judicial protocols must be followed. Whilst the AG’s swift justice scheme may appeal to some, in a country where a fair trial is mandated by our constitution, justice as it is promoted is implausible without trampling upon the rights of both lawyers and the persons/entities they represent.

Justice Lyons condemned a report that emanated under this AG’s earlier tenure, likening it to a “school master’s report or human resources manager’s report of what is happening in a named judge’s court”.

Amazingly, after the scathing remarks of the judge, where he apparently dressed down Cheryl Grant-Bethel (now Justice of the Supreme Court) who he had presumed to have released the report, the AG attempted to portray herself as nobly running to Mrs Bethel’s rescue, conveniently forgetting to confess that she (Gibson) had released the report for publication—not the prosecutor.

In Mrs Bethel’s defence of herself, she stressed that the report was not issued by her, but was an internal document disseminated by Mrs Gibson. Was someone being scapegoated?

Although Mrs Gibson may wish to be celebrated as a crime-fighting wonder-woman, she should get on with ensuring that justice is afforded to all Bahamians in a timely manner, rather than what appears to be selective justice.

It is a shame that it took an Australian-born judge to lobby — in most colourful pronouncements — for judicial independence and adherence to the law.

Prime Minister Perry Christie should now set about reshuffling Mrs Gibson or request her resignation, particularly as it appears she has been a major player in a conflict between the branches of government — but I doubt he would!

ajbahama@hotmail.com