Review of the Judiciary


by Fred Mitchell

The Chief Justice ought to take note of the complaints that are emanating from practitioners in the  probate section of the court.  The complaint is that probate applications which are not contentious are taking too long to be processed and approved.  It was not unusual to hear stories of non-contentious applications for probate matters taking as long as nine months for applications to be approved.  It is not clear precisely where the backlog is.
     There appear to be two problems.  One is that there does not appear to be a consistency in the style and form of applications accepted by the probate division.  One senior practitioner was prevented from sending applications forward because of a dispute between in one instance the word " situate " and "situated".   Perhaps, it is time for the legislature to intervene to standardize and modernize the application forms so that the element of clerical discretion is eliminated, and the matter is made simpler for lay persons to execute without the reliance on trained practitioners.
     The second problem appears to be the fact that all probate applications must be signed by the Chief Justice or someone in that office for the time being.  This clearly must be changed.  In a modern country, it is ridiculous that the success of a simple non-contentious probate application should depend on the presence or absence or availability of one judicial officer.  There is a need to reform that area so that any judge may sign the Grant of Probate.
     The bottom line though is that probate applications take too long to be approved, and some steps ought to be taken immediately to rectify it.  The public ought to be aware that a probate application becomes important whenever, there is land left in someone's estate or there is money over the amount of $1,000 left in an estate that needs to be distributed.

    The year was marked by a continued reliance on foreign judges to man the Supreme Court Bench.  There was a practice initiated by the Government which continues today of importing on a short term basis judges from Australia to assist with the so called back log of cases.  The result has been mixed at best, and in some cases there have been great injustices wrought on litigants by what can only be termed rough justice.  As attractive as the proposition seems, the Government of The Bahamas must cease the reliance at first call on non -nationals to man the Supreme Court Bench.
     What is of particular concern is the fact that it appears that the Government of The Bahamas is in control of the selection process of judges, and further that they are willing to provide incentives for foreign judges to sit on the bench of The Bahamas but are unwilling to provide similar incentives for Bahamians to sit on the bench.
     The Tribune wrote an editorial in December 1999 in which it defended this practice under the headline "Bahamianization But Not At Any Price ".  That is not the correct proposition.  The proposition is quite simple.  This is The Bahamas.  The three branches of Government are the Executive, the Judiciary, and the Legislative. It is constitutionally impermissible for a non-Bahamian to sit in the Legislature or the Cabinet. The same ought to apply to the Judiciary.

     Further it must be pointed out that there is no shortage of Bahamians at the bar who are either qualified or willing to serve on the bench.  The only problem seems to be whether or not the persons who are available are politically acceptable to the Prime Minister and his representatives on the Judicial and Legal Services Commission. In the senate we revealed that Mrs. Carolita Bethel is to be made an Acting Justice.  She is now magistrate.  We also pointed out that the choice of Mrs. Bethel was somewhat curious in that there are several judicial officers with experience on the magistracy who are senior to her both in years at the bar and on the bench.  None of them have had the problem of a serious backlog of unfinished cases as an issue.  I would name those who can now be promoted to the Supreme Court Bench as Cheryl Albury, Vera Watkins, Winston Saunders.
     The skills of Bahamian lawyers are often impugned by the critics of Bahamianization of the bench on the grounds that the foreign judge has greater judicial experience and is more erudite.  That is patently false.  There is nothing which can objectively demonstrate that the judges that have been brought into The Bahamas get it any more right or wrong than Bahamians.

     There is a false notion and belief in this country that Judges, their acts and decisions are above public scrutiny and reproach.  That is untrue.  We have only to refer these persons to the oft quoted phrase of Lord Denning in the famous case of contempt from the Courts in Trinidad that " justice is not a cloistered virtue. " Public policy is made by judges every day, and there must be a thorough scrutiny of their actions.  No organ of Government is above public criticism and no officer of any Branch of Government is above public criticism.  The public at large who often suffer from bad judicial decisions deserve a voice in the face of an unyielding system.

     All Bahamians ought to read carefully and inwardly digest the scathing comments of two Privy Council Judges in the dissents written in the John Higgs and David Mitchell cases.  The Judges spoke about the disregard for the rule of law at the Fox Hill prison, and about the serious miscarriages of justice in our judicial system.  Further, one judge indicated that the Judges in The Bahamas are influenced by popular opinions.  The importance of these dissents is that their comments can not be dismissed as the jingoistic whinings of a Bahamian politician on the make.  These are seasoned and disinterested judicial officers of the highest court of the land, sending a warning to the Bahamian people about the poor state of our judiciary.  We ignore such warnings at our peril.
     This becomes all the more important given the sharp divide right across party lines about whether or not the bench ought to be Bahamianized.  It gives rise to the question of the quality of justice, the quality of judgements and whether litigants and defendants can get fair and impartial trials in The Bahamas.  There is a concern that some judges become jaded after years of work on criminal matters and therefore tend to lose their objectivity, readily accepting the most transparent lies by the prosecution as unvarnished truth.

     Mrs. Cheryl Albury left the Magistrates Court Bench during the year to take up the position of Deputy Registrar of the Court of Appeal.  Mrs. Sharon Wilson also resigned from the Bench to go into private practice after almost two decades on the Magistrate's Court Bench. In the Senate I pointed out my belief that Mrs. Wilson was denied several positions in the Courts because her husband was a PLP politician.  Her considerable skills in the family court have been lost to the Judiciary.  Hers is typical of the theory that I have of a political executive seeking to eliminate or frustrate those in the Judiciary  who are able and willing to serve but are unacceptable for parochial reasons. The speculation is that her place is to be taken by a Magistrate to be brought in from Trinidad and Tobago.
     The Magistrate's Court continues to be nuts and bolts of the judicial system. Most cases in the system are dealt with in those courts.  The facilities continue to be physically in poor shape.  The lighting, acoustics, seating, ventilation are all in need of serious improvement.
     Further, the record keeping for the Magistrates Court needs improvement. The system of trying to find dates for cases, for warrants of arrest leave much to be desired.
     Further, the Courts should become more user friendly.  It should be possible to pay fines by credit card, for example.  Further, the Courts should have available to each person who appears before it some physical notice of an adjourned date.
     The system is still too paper intensive, and therefore prone to lost files, mistaken dates and improper notations.  The result is that the public both defendants and complainants suffer.

      Throughout the year there was much ado about the backlog of cases in the Supreme Court.   The outgoing Attorney General seemed to make it a special issue during his tenure.  His response was to bring in judges from a foreign aid scheme in Australia.  We have already pointed to the mixed success of that endeavour. But there was also an attempt by the Chief Justice to change the rules of the Supreme Court to dispose of matters that had not been acted upon by the parties after six months.  No change has been made so far, we believe largely because the Bar remains opposed to the changes.  Further, many practitioners are convinced that changing the rules will not cure the mischief which it is intended to cure.
     It is clear that cases still take to long for hearing.  But I do not think that it has anything to do with the pace with which parties bring matters forward to the court.  After all, in our system if the parties have no wish to bring the matter forward, there is no cost to the system.  The problem remains getting a hearing in a timely fashion once the matter is ready for trial.
     Delays have been occasioned for silly reasons.  One has been the unavailability of judges.  But in late October, dates were not given in the courts because, the court's clerk did not have a diary for the year 2000.

     Broadly speaking, the Industrial Tribunals have been a success.  Both employers and employees accept the tribunals as a fair means of settling disputes.  It is relatively less expensive than the Courts and decisions are delivered more quickly.
     There are some problems, however.  First the physical conditions
where the Tribunals sit in Nassau are objectionable.  There clearly needs to be work done to make them more user friendly and comfortable fro those who have to use them.  The same complaints about ventilation, lights and acoustics apply in these courts as apply in the Magistrate's Courts.
     Secondly, the time it takes for the resolving of disputes by means of the Tribunal is still too long.  Typically it takes some nine to twelve months before a matter filed at the Department of Labour can be aired before the Tribunal.  This is particularly harmful where you are dealing with the rights of short term workers, like construction workers who need the immediate remedy of reinstatement on the job where they are wrongfully dismissed. By the time the matter gets to the Tribunal, the construction project is finished.
     The situation in Freeport is still unacceptable, where there is no Judge sitting on the Tribunal in Freeport. This situation must be solved, if the system in Freeport is not to become unacceptably clogged with cases to be resolved, if that is not already the case.
     The Parliament passed a law last year in order to facilitate the appointment of a third member of the Tribunal for Nassau.  That appointment has not yet been made, despite the fact that a person has been identified and that person sits at home collecting a salary through no fault of her own without having an office and duties assigned to her.

    It is clear that the leadership of the Bar under Peter Maynard has been good. A number of important seminars have been held by the Bar Association under his leadership, and the relations between the bench and Bar have improved significantly under his leadership.  The Bar does, however, need more lawyers joining its ranks to become interested in what has been called public interest law.  This is the participation in cases that will help the public good, but in situations where the litigant does not have the funding for the litigation.  However, it is clear that the litigation if successful could in fact reap costs for the successful litigant.  Such a public interest action was that taken by this attorney in 1995 against the Bahamas Electricity Corporation. There seems to be such a commercial ethos from amongst recent graduates of law schools that the public interest is suffering .
     However, we continue to be impressed by the gallant work of those attorneys who represent clients in capital punishment cases.  The attorneys who represented those convicted for the murder of Chuck Virgill had to face the hostile reaction of the public.  But as attorneys they were acting in the finest traditions of the Bar.
     It is unfortunate that the public does not appreciate the role which these practitioners play.
     In addition, those attorneys involved in the litigation on the Clifton cay project ought to be praised for their ability to galvanize public interest in opposition to the project.  That too is in the finest traditions of the Bar. The lawyers on the Chuck Virgill murder case were Fayne Thompson, Bobby McIver and Koed Smith, the Hon. Arthur Hanna and the Hon. Paul Adderley are working on the Clifton Cay litigation.

     The local law school is now in its second year.  The first year was disappointing in that of the 23 in the class only five students passed the first time around. This seems suspicious given that the Governments of the region had to force the Council of Legal Education which runs the school to enter students even though they did not pass the required examination.
     The question is whether there is a problem in the ability of the teachers of the Council or whether there is something lacking amongst the students.  A system ought to be able to pass most of the persons who enter its walls, otherwise something must be wrong with its system of entry and its teaching methods.
     The Vice Chancellor of the University of the West Indies, the Honourable Rex Nettleford is trying to bring what he calls care and compassion to the approach to teaching at UWI, perhaps the law school can take a page out of that book.  Further, it often appears that the systems in the Caribbean are being deliberately designed to show that they are tougher than the British systems, out Britishing the British in a manner of speaking.  The fact is the Britain that they are trying to emulate no longer exits, and Britain has moved on to a more inclusive method of tuition.

     In 1976, The Bahamas signed a protocol by which it agreed that it would abolish all qualifications for practice in the Bahamas except for that of the Council of Legal Education (CLE).  We have obtained several extensions to that.  But on a recent trip to Barbados this Senator was told that The Bahamas would no longer get extensions and it must now conform. If that happens, that means the British qualification to the Bahamas Bar without further examination will end.  I do not agree with this.  I did not agree that the local articles system should have been abolished either. But students are very anxious about what this will mean and when and if it will be implemented.  The position is that The Bahamas does not intend to change the qualification route at the moment and when it does it is believed that those who are already in the system will be grandfathered in so that they will not suffer any disadvantage by a change in the rules.
     As an interesting aside, it should be noted that the authorities in their haste to open the Eugene Dupuch Law School in 1998, forgot to invite the widow of the late Eugene Dupuch, after whom the school is named, to the official opening.

     Sir Leonard Knowles, the first Bahamian Chief Justice, in an independent Bahamas, died last year.  He died almost indigent and dependent upon his relatives, with the Government refusing to provide him with an  an adequate pension. The present Government blames the former Government for Sir Leonard's perilous state in retirement.  The fact is that while the problem is rooted in the public policy of the previous administration, the present Government failed to step up to the plate and improve the benefit to the level of all those who now serve in the job.  However, they were filled with pious remorse on his passing.
    A further injustice has been done.  I received a letter last month from the widow of Sir Leonard, Lady Knowles.  She turned 86 on 24 December last.  She says that not only did Sir Leonard die in much reduced economic circumstances, with difficulties meeting bills, she now finds herself in a similar situation.  She is unable to meet her commitments.
     On 3 November, according to Lady Knowles she wrote to the Prime Minister asking for his assistance.  No answer had come from the Prime Minister up to the time of the letter which was sent me.  This was some four weeks after 3rd November. The Prime Minister's refusal, tardiness, or simply ignoring the letter of Lady Knowles is unacceptable.  Upon receipt of the letter from Lady Knowles, I wrote to the Prime Minister urging him to respond as I did not wish - at that stage - to make the matter a public matter.  Since there has been no further action, it is now time to make an urgent public appeal to allow the Chief Justice by order to extend benefits to Lady Knowles equivalent to any that the widow of a Chief Justice would now get.
     We also wish to pay tribute to Joseph Strachan who has retired from the Supreme Court bench.  It is our view that he ought to be sitting on the Court of Appeal.
     I say good riddance to Joaquim Gonsalves-Sabola who at last retired as a judge in this jurisdiction. The weak, the poor and the helpless must be relieved and if they are not, I am relieved for them.
     It is our view that Burton Hall should be the President of the Court of Appeal. Instead, the job is to be given to a man from outside the country who can only hold the job for two months.
     It is our hope that the Bahamian people will see what a double standard there is in the treatment of non-nationals on the bench and of Bahamians.

      There continue to be attractive calls for the abolition of the Privy Council because of its rulings on the death penalty.  There are compelling arguments based on nationalism to do so, but many practitioners continue to give pause because of the factors outlined in the recent dissents in the Mitchell and Higgs cases.  The people of the Caribbean are not well served in general by their Courts. It is my hope that by continuing this exercising of exposing the work of the courts that public policy and its applications in the Judiciary will improve, and that there will in fact one day be justice for all of our people.  Thank you very much indeed.

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