Judge Says AG Should Resign:

By Candia Dames -
Nassau, Bahamas:

Accusing Attorney General Allyson-Maynard Gibson of calling his reputation and integrity into question, Supreme Court Justice John Lyons, in a new round of scathing criticisms, lashed out at her in a Freeport court on Monday, saying her resignation may be in order.

The judge then recused himself from all matters before him two weeks after he delivered two blockbuster rulings declaring that the judiciary in The Bahamas is not independent, and that the government has plunged the country into a constitutional crisis by failing to appoint a commission in accordance with the law to review the salaries of judges.

On Monday, Justice Lyons was scheduled to hear an application for a receiver to be appointed to run the Grand Bahama Port Authority as that company faces mounting legal problems. But instead, he took aim at the attorney general days after she commented on his rulings of November 6 in the House of Assembly.

"…Your attorney general stood up in the House and claimed that the judgment or judgments that I have written…were misleading. That causes me considerable concern," Justice Lyons said.

"I know the Bahamian community. I know Nassau. I know that at the moment it is electorally charged. I know the colour of my skin. I know that I’m a foreigner. I know that you cannot stand up in the parliament as the officer who is responsible for the judiciary and as a leader of the Bar and say that a judge of my complexion and of my foreign nationality has misled the Bahamian people on a very serious issue.

"That, in my view, compromises or could compromise my personal security. It only takes one fool. I am taking measures to protect myself in that respect."

In his ruling on several criminal matters on November 6, Justice Lyons accused the government of breaking the law on two occasions by failing to appoint a Judicial Review Commission in line with the Judges Remuneration and Pensions Act.

Justice Lyons pointed out in that ruling that the prime minister appointed former Attorney General Sean McWeeney to head a commission in 2005, but it was not statutorily appointed. He said the McWeeney Commission was to do a task identical to what would have been expected of a statutorily appointed commission.

"The judges’ legitimate expectation was that the McWeeney Commission report regarding the judges’ salaries and conditions would be treated as if it was a report commissioned under the Act," the judge said in the November 6 ruling.

The judge then suggested that the McWeeney Commission was a waste of time.

But the attorney general hit back, making it clear that the government did not agree with the two rulings delivered by Justice Lyons.

In the House of Assembly last Wednesday, she said, "To suggest that the government has not taken the recommendations of [the McWeeney Commission] into consideration is again, misleading. This government has increased the salaries of legal officers based on these recommendations."

The attorney general also said, "While this commission was not appointed under the auspices of the Judges Remuneration and Pensions Act, it is inaccurate for persons to paint the impression that a salary review for the justices of the high courts was not performed during this administration’s term in governance."

But on Monday, Justice Lyons indicated that he had taken grave exception to the attorney general suggesting that he had been misleading in his judgments.

"The thing that most concerns me, though, about this is the impact on my integrity and reputation," he said.

"To say that a judge has misled is to impute the possibility that a judge has untruthfully represented something as to be what it is not. To make such an allegation – sorry – an assertion – this was not an allegation – this was an assertion – goes to the very heart of what a judge is about; that is, that a judge must always truthfully represent matters.

"If not, then a judge’s integrity is obviously up for question. It has, therefore, been asserted by your attorney general as the leader of the Bar and as the person responsible in the Parliament for representing the judiciary that the distinct possibility exists that I have, as a judge of the Supreme Court, untruthfully represented a state of affairs to this nation."

The judge added again that that impacts on his reputation and his career.

"You can hardly expect any foreign investors who come here and have litigation and come before my court as the senior commercial judge to have any confidence in a judge about whom the attorney general has announced to the nation in the Parliament that he misleads. I am greatly disturbed by this."

Justice Lyons went on to say the Parliament is not the place for those types of allegations or assertions.

"What the attorney general has done has gone to the people of The Bahamas in an emotionally charged matter denying me totally any right of defence or any right of hearing," the judge continued.

"She is the person who defends my rights, and she has said to the people of The Bahamas that it is her assertion I have lied to them and misled them. There was no misleading."

Repeating some of the statements from his earlier rulings, Justice Lyons said as a matter of law, Section 4 of the Judges Remuneration and Pensions Act is "compulsory".

He said as a matter of law, the Cabinet had certain compulsory obligations, but failed to perform them on two occasions.

He added, "There was no misleading. The public forum and the Parliament is no place for this.

"The thing that concerns me greatly, counsel, is this, is that when all of this dies away, there will remain on the record of your Parliament for posterity an assertion by the attorney general of the Commonwealth of The Bahamas, the officer constitutionally charged with the political responsibility for the judiciary and the leader of the Bar, that a judge of the Supreme Court, that is myself, misleads the people of The Bahamas.

"That imputes that I do not tell the truth in my judgments. The place for that type of allegation by the attorney general is the courts of appeal. The attorney general has eschewed going to the courts of appeal."

On Monday afternoon, the attorney general met a deadline and appealed Justice Lyons’ rulings of November 6. The notice of appeal was filed – coincidentally – after the judge’s most recent comments.

"The attorney general in her statement to the House said she was going to the Court of Appeal. Instead, she has gone to the public forum and the Parliament," the judge said.

"The opportunity is – this is an urgent matter that should urgently be appealed. The attorney general has no other responsibility but to appeal this matter urgently. I will stand by the Court of Appeal’s judgment on, one, whether I was correct at law. That is inconsequential to me personally. That is the way – that is what courts of appeal are for. But the allegation that I have misled the Bahamian people…is not something that I take lightly. It is something which must as a matter of extreme urgency be dealt with by the appellate courts."

Justice Lyons said the opportunity is there for the Court of Appeal to hear the appeal as soon as possible, and he pointed out that there will be an historic sitting of the Privy Council in The Bahamas in December.

"I will stand by and await the judgment of the Courts of Appeal. If it is that they find that I have misled the Bahamian people, as a matter of honour, I must resign," he said. "You cannot expect to have sitting on your bench a judge who deliberately or even recklessly and carelessly misleads the Bahamian people in crucial judgments."

Justice Lyons also said, "Similarly, I say to the attorney general, if it is that the Court of Appeal and Privy Council find that I have not been guilty of such a blatant disregard of my duty, that the attorney general would resign also. The proper course is for this to go through the appeal process."

Justice Lyons said as a matter of propriety he must recuse himself from all matters until such time that this is resolved.

"You simply cannot have a judge’s credibility questioned and asserted adversely so for posterity in the Parliament of this nation," he continued. "That’s all I have to say on the matter."

Justice Lyons said he would have his matters forwarded to the chief justice for allocation to other judges. He said certain matters that were due to be before him were prepared for trial and there was no reason why another judge could not handle them.

21 November 2006

bahamian law