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The Bar Association Sues The CJ
posted (February 19, 2020)

In November, we told you about the pending lawsuit that the Bar Association filed against Chief Justice Kenneth Benjamin. It pertains to one of the disputes that the Bar has with the Chief Justice, and it was one of the reasons why DPP Cheryl-Lynn Vidal and senior members of the Bar boycotted last month's ceremonial opening of the Supreme Court.

For about 2 years and counting, the Chief Justice, as the Chair of the Judicial and Legal Services Commission- or JLSC for short - has been preventing the DPP from sitting in the Commission's meetings as President of the Bar Association.

The Chief Justice holds that while she is the duly elected President of the Bar, Vidal, as the Director of Public Prosecutions, cannot sit on the Commission. He interprets the Constitution to mean that since she is a public officer, she is disqualified from taking the seat. In response, the Bar has sued him, the Solicitor General, the Chairman of the Public Services Commission, and the Attorney General, who are all members of the JLSC

The Bar believes that the act of barring the Director from attending the meetings is unconstitutional.

This morning, Justice Michelle Arana presided over a full hearing to resolve the matter, and the Bar's attorney, Andrew Marshalleck presented detailed arguments to convince the judge of Association's interpretation of the law. Appearing on behalf of the defendants, Crown Counsel Brianna Williams raised the issue of the conflict of interest that they see the DPP facing in her dual role. She also raised the point that the Bar's complaint has come long after the fact and that they should not be granted the reliefs that they are seeking.

7News was at court this morning for that hearing, and after the hearing, we spoke with the Bar's attorney:

Andrew Marshalleck, SC - Attorney for Bar Association
"The argument - it's based on 2 sections of the Constitution, Section 1, 10, E2, and 1, 10, E3. Section 1, 10, E2 says who's to be the members of the Commission. It says the Commission shall comprise of - shall meaning mandatory. [It] has to include the Chief Justice, the Solicitor General, the Chairman of the Public Services Commission, and the President of the Bar. So, that section is beyond doubt. The President of the Bar has to be a member of the Commission. The Constitution mandates it. Subsection 1,10, E3 now says - and it starts out with 3 critical, opening words. It says subject to Section 2, any person who's a member of the National Assembly or is a public officer is effectively disqualified from being a member of the Commission. Now, that is a disqualifying section indeed, but what is the effect of the opening 3 words, subject to section 2? It makes subsection 3 subservient to subsection 2. It means subsection 3 cannot displace who the members must be in accordance with subsection 2. Mrs. Vidal, as President of the Bar, is entitled and must sit on the Commission, regardless of whether or not she happens to be a public officer, which of course, she's the DPP.

Reporter
"What are the arguments from the other side, or what do you understand them to be? And what do you make of them?"

Andrew Marshalleck, SC
"I can summarize them in the terms I used before the judge, and to say that they're really arguments for constitutional reform, not for constitutional interpretation. It's arguments for what they would want it to be, given what they consider to be important, rather than what is the language that is in the Constitution actually says."

Reporter
"Can you respond to the argument the defence has made in relation to the fact that there's been an extended delay in bringing this claim to the court, and on that basis alone, that there should be no remedy? And also about the point they've made, how do you take off one hat, and use the other one?"

Andrew Marshalleck
"On the issue of delay, there are two ways of looking at it. If you look at it from their side, looking at us, they say we haven't done anything, and haven't done it in a timely way. Fine. If we look at it from our side to them, it's that they're under a duty to act in accordance with the constitution, and they proceeded, notwithstanding, having not resolved the issue in a fair and independent manner, because asking one of their members to give an opinion is hardly an independent approach to resolving an issue that they themselves raised. The DPP brings to those decisions a wealth of knowledge about how the criminal system works. That can be beneficial to the decisions of the Commission. It is only those decisions that affect the DPP's Office directly, that there would have been any kind of real conflict. And if there was a difficulty in shifting hats, as they called, you deal with it by way of recusal from the particular decision. You don't deal with it by throwing the President out the meeting room indefinitely into the future."

"Bear in mind that the majority of the decisions before the Commission, there would have been no such conflict. There would have been no need for shifting hats. So, what you're doing is pointing to what would happen in a small minority of instances to justify the larger transgression."

Reporter
"What is the Bar's position on the decisions that the Commission made in the absence of the President of the Bar Association?"

Andrew Marshalleck, SC
"Well, we say that those decisions are invalid. They're all unconstitutional because the Judicial and Legal Services Commission, which considered those issues and made those decisions was not properly constituted. The duly qualified members thereof weren't invited to attend and didn't get to participate in those decisions. The President of the Bar represents the views of the Bar generally in these types of decisions. They've proceeded for the last 2 years to make all of these decisions without any input whatsoever from the Bar Association, which is lawyers generally."

Reporter
"Sir, but doesn't that mean that it's 2 years of decisions that need to be reversed?"

Andrew Marshalleck, SC
"Of course, and they should have thought about that when they went on for 2 years without the president."

At the conclusion of the legal arguments today, Justice Arana reserved her judgment to a date to be announced.

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