My questions for the Attorney General
- Why are Magistrates still handwriting their notes? Why don’t attorneys have the benefit of a transcript from Magistrate’s Court? Why are attorneys and their clients subjected to the notes of a Magistrate?
- Why has a court reporter not been assigned to each court? And, if there are shortages simply hire more reporters.
- Again, I ask ... why are the registries in such a horrendous state where files cannot be found or must be tracked down? Why are they still dealing with lots and lots of paper? When will the registry become computerised?
- Will you support a constitutional amendment to remove the Attorney General from the Cabinet of The Bahamas and guarantee his/her independence?
- Would you support an independent Office of the Director of Public Prosecutions that operates separate and apart from the Office of the Attorney General with its own budget?
- When will an investigation be carried out and charges brought regarding the Auditor General’s damning reports of theft at the Road Traffic Department, at Bahamas Customs, at the Post Office, at Urban Renewal, at the Passport Office? Will anyone be held accountable?
- There is a deficiency of commercial and civil judges on the Bench. Certainly, you must be aware of that and so must the Judicial and Legal Services Commission, right? And, yes, the PM too.
- What is the current status of the much promised Public Defenders Office?
- In light of the breakdown at Baha Mar, what – if any – role did you play in the preparation of the Heads of Agreement? Did you or your law firm at any time represent any of the principals of Baha Mar?
- What are your views on the various conflict of interest allegations relative to your involvement, as government negotiator or representative, in matters concerning Baha Mar, developer Sarkis Izmirlian’s filing for bankruptcy and negotiations with the China Export Import Bank?
- Is your office conducting an investigation into the disappearance of files related to extraditions cases from the OAG?
- How do you plan to handle claims in your office given the number of files that have been misplaced?
- Is there any legislation proposed to protect witnesses and encourage persons to come forward (outside of this so-called witness care unit)?
- Considering your touting of the swift justice scheme, why was a training session only conducted last year? Is one in line for this year?
- Why does the public not yet know what national security issue led to a nolle prosequi being entered by then acting AG Jerome Fitzegerald on your former clients’ behalf?
- Retired Justice Joseph Strachan was appointed to conduct what your office referred to as a “thorough” independent review into the cause of the delay in the release of a report on the ramifications of a Rubis gas leak in the Marathon constituency in 2013. Where is Justice Strachan’s report of the review the OAG said was intended to “ensure that the processes to support future investigations and enquiries conducted in the public interest” are managed according to “international best practices as well as to ensure timely disclosure when these reports are going to be made public”?
Did you, Madam AG, advise the Cabinet not to release the report? Are we due yet for at least a “quarterly report” on the Rubis situation?
Can we have it please? Hopefully there is not a need to appoint another retired Justice to tell you whether the Strachan report should be released to us.
I would like to see how fast she issues a press release in response ...
By ADRIAN GIBSON
THIS week, Attorney General Allyson Maynard-Gibson released a non-responsive, vacuous retort to my last column, where I advocated for the independence of our judicial process and dismissed her version of swift justice as nothing more than a farcical nightmare, a headline hunting, political scheme and catchphrase. I stand by that notion.
In the AG’s pitiful attempt at a response, she asserted that while I “recycle almost word for word in (my) opinion piece published in The Tribune in the November 6th, 2006, edition, the Swift Justice Team is making real progress”. Firstly, the AG’s lame effort to snidely dismiss my column as a recycling of a past article fell flat. If her claim held true, she ought to be ashamed to say such a thing because it would mean that since her first term as Attorney General in 2006, nothing has changed and therefore I could say the very same thing I said ten years later. I did refer to and use quotes from that past column ... after all, I cannot plagiarise myself, right Madam AG? Her attempt at a putdown is of no moment.
Mrs Gibson then said: “Thanks to the collaborative effort of prosecutors and police, in the ten criminal courts provided by the Government in 2015, the conviction rate doubled in 2015 compared to 2012; the time for the presentation of a voluntary bill of indictment has been reduced from 344 to 78 days; 110 more cases were disposed of in 2015 than in 2012 and seven murders were tried within one year of charge. In 2015, the Witness Care Unit implemented new guidelines for staying engaged with witnesses. Since August of 2015, the unit has dealt with approximately 155 cases.
“Importantly, the backlog has been reduced by over 100 cases ... this increased efficiency and effectiveness is paramount, not only for the victim, but also for the accused who awaits his day in court. It is also a testament to the hard work of prosecutors, witness care officers, data clerks and police officers, all working under tremendous pressure. I will not let anyone discount their efforts,” she added.
Shame, shame, shame! Disgraceful!
The AG is bragging about trying seven murders within one year of charge. What’s more, how does she reconcile having ten new criminal courts but only having the capacity to try seven murder cases within one year of charge? At the rate she is going, let’s imagine that the murder count ceases at the 149 that was seen last year. So, by Mrs Gibson’s own logic, if no more murders happened in 2016 and beyond and if we would only focus on last year’s murders, and if the police had arrested all the suspected murderers committing last year’s murders, it would take nearly 21 years for all of those cases to be properly ventilated.
There is nothing to brag about when it still takes an accused 78 days – in a scheme touted as swift justice – for them to be served with a voluntary bill of indictment (VBI). The Webster’s dictionary defines swift as “moving or capable of moving with great speed”, “happening or done quickly or immediately” and/or “occurring suddenly or within a very short time”. Further, Osbourne’s Legal Dictionary describes justice as “the upholding of rights, and the punishment of wrongs, by law”. For Mrs Gibson’s ease of reference, the Webster’s dictionary defines justice as “the process or result of using laws to fairly judge and punish crimes and criminals”, “the maintenance or administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments” and/or “the administration of law; especially the establishment or determination of rights according to the rules of law or equity”.
Given the aforesaid, there is nothing to brag about when one must languish in prison and wait nearly three months before being served with a VBI. What about that is done quickly in order to ensure the speedy administration of law? Swift justice should be broad and all-encompassing and should have nothing to do with one’s attempt to rack up criminal convictions.
Rather than VBIs, why not implement tangible programmes to effectively eliminate the backlog and move - as Chief Justices Sir Burton Hall and Sir Hartman Longley have suggested - to directly try people in the Supreme Court who are charged with indictable offences?
And then there’s the AG’s claim that the backlog has been reduced by 100 cases. If that is so, how was this backlog reduced? Was the Office of the Attorney General (OAG) handing out nolle prosequis and essentially discontinuing or dropping cases? How many nolles were entered and on what grounds? What about sincere efforts at fundamental reform?
Yes, it is beneficial to enter a nolle from an administrative standpoint. However, how beneficial is it for those persons who possibly aren’t getting justice because the OAG has entered a nolle because the matter has subsisted for far too long without prosecution or due to their own negligence in bringing the case to court or due to gross mismanagement.
Surely Mrs Gibson, though a self-appointed Queen’s Counsel, could appreciate the words of the revolutionary and historic Great Charter or Magna Carta where at clause 40 it states: “To no one will we sell, to no one deny or delay right or justice.”
To use the words of talk show host Chrissy Love, the AG needs a - (bangs on desk) - reality check!
What could possibly amount to swift justice when we have more than 100 murders per year and we are only able to try seven cases within one year of charge? That represents failure. The OAG is the largest law firm in the Bahamas, with between 60 to 100 lawyers, so how is that something that the AG finds worthy of boasting about? Anyone who believes that swift justice is real and that we are seeing an efficient manifestation of it can only be likened to the proverbial naked emperor in his golden clothes.
Strangely, the same boast the AG gave in her statement in response to my column was regurgitated from a speech given a year ago at the opening of the legal year in Freeport, Grand Bahama. There she claimed that “through co-operation with the judiciary, moving in the right direction, the time for presentation of Voluntary Bill of Indictments has gone down from 344 days to 78 days.” She further claimed that in 2012 the Supreme Court disposed of 118 matters and in 2014 disposed of 200 matters.
But, considering the constitutional separation of powers, what does she mean by “through co-operation with the judiciary?”
Could this be why Chief Justice Sir Hartman Longley, in his speech at the opening of the legal year on January 16, made the following statement:
“Quite apart from the fact that the judiciary is not a department of the Office of the Attorney General, but is an independent branch of Government headed by the Chief Justice, a fact which seems to escape some in the administration at times, unless a Judge or Magistrate appreciates the need for speed in the process and buys into the concept from the day he or she is sworn in, all the technology and money in the world and talk of swift justice will not produce the desired result of the objective of swift justice. As Judges, we must appreciate what Martin Luther King Jr described as the ‘fierce urgency of now.’ That has to be the mantra of the Judicial officer and of the Justice system. Otherwise, the litigant is lost in delay and Justice is denied and no programme no matter how well designed or well-intentioned will succeed without it.
“One case of injustice due to delay is one case too much ... But that is just the opening volley ... What has been uncovered in the last few months is even more mind boggling. An almost casual search of the Appeals Registry of the Supreme Court in Nassau has revealed that just for the period 2008 to 2015 there are more than 200 Magistrate Civil Appeals and roughly 100 criminal appeals that have not been heard. The number of these cases in Freeport appears to be even greater.
“These are matters that have just sat untouched in the registries of Freeport and Nassau for years in someone’s drawer with no sense of accountability or responsibility. They simply have not been set down or followed up and there is a complete breakdown in supervisory oversight. In many cases those responsible have not been as diligent as they should have been in seeing to it that the records have been prepared for onward transmission to the Supreme Court and the absence of Court reporters has not helped the process. Indeed it has hampered it ... The list is actually much longer but we have stopped at 2008 in order to begin the process (which has already begun) of having these matters set down for hearing so that justice might at last come to those who came to the Court of the land in search of it,” Sir Hartman said.
So, where is the swift justice? Why are the police not executing warrants?
We are not doing any better than we were 30 years ago. The state of the justice system hasn’t changed since the 1992 report on crime by a Commission chaired by Sir Burton. The question at hand is simple. Are you able to respond to the challenges of today? If not, then you are systemically failing. In such a case, one needs to do what it takes and apply whatever resources it has and, frankly, stop pretending!
The AG’s response and her swift justice argument provides comfort to nobody. It speaks to a lack of comprehension of what is required for the time. Until we deal with people and issues as they are, there will continue to be failure. The argument that they are doing their best is futile. Your best isn’t good enough so adjust the model. Maybe there is a need for more judges. There is certainly a need to adopt a plea bargain system much like that which we see in the US in order to avoid taking people to trial and clogging the courts with certain matters.
People’s lives are at stake and we cannot have people who live in an artificial world telling us to believe what they say and not what we see. Style does not trump substance here. I am tired of hearing all the clichés from swift justice to other fanciful words used to evoke fuzzy feelings whilst little gets done. No one is buying that.
What’s more, I have observed that the AG does not take criticism well. She seems to believe that if she allows criticism, her seemingly pristine façade breaks down.
I have spoken to judges and magistrates and clerks. I have spoken to QCs and members of the senior and junior bar. I have spoken to everyday Bahamians. All that I have said has resonated and they have shared much with me. The AG should herself ask people in the justice system to tell her their true thoughts on swift justice. Many of them might not for fear of losing their jobs or victimisation or privileges or special invitation or other reasons. However, some might just relay to the AG what they have said to me. I doubt that she would be surprised.
On October 14, 2014, the Bahamas Bar Association (BBA) wrote to the Attorney General informing her of concerns brought to their attention by a number of attorneys at the OAG. The Bar Council selected a committee to review the outline issues “with a view to meeting” with the AG in an “attempt to resolve” the matters raised. The committee members were Thomas Evans, QC, Wayne Munroe, QC and Elsworth Johnson, President of the BBA. By all accounts, no meeting has been called or held since.
According to the letter sent to the AG, attorneys at the OAG had made complaints about being burnt out and overworked; they complained about not having medical insurance; not receiving gas and cell phone allowances; and being underpaid and not receiving the proper salary and about the reclassification of salary scales.
What’s more, the attorneys at the OAG complained that they did not have work space in the Downtown area and that they had to find refuge in restaurants after hearings so that they could work on those tables and/or avoid being exposed to security risks. Further, they complained about the lack of parking in Bank Lane; the lack of security at the courts; they requested permission to tint their private vehicles and the buses and cars of the OAG for fear of being identified and harmed by someone they may be prosecuting; they stated a desire to carry firearms; requested police and defence force considerations relative to their protection; requested a clothing allowance and benefits in lieu of an increased salary, for example, food vouchers when they come to court; waiver of payment for their own notary licences; they complained of their daily reporting requirements which is an effort to measure their rate of conviction in some instances; requested additional prosecutors and so on.
I am told that both Court of Appeal Justice Jon Isaacs and Supreme Court Justice Stephen Isaacs have expressed concern about the way ministers of justice - i.e. lawyers from the OAG - are being treated. There is no rest period as a single prosecutor could move from a bail application to a trial to any other matter all within a single day.
Elsworth Johnson has confirmed that BBA members at the OAG have expressed serious concerns and that a letter was indeed sent to the AG in 2014. They await that meeting.
Moreover, I understand that there is a building at Victoria Gardens where hundreds of active files are housed which is not fit for human habitation. No one wishes to go in there and when a file is needed, I am told that there is a lady who has been designated to go into that building and locate files. This poses a security risk, smacks of slackness and could lead to identity theft and breaches of one’s privacy.
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