From TCI Affairs

Petition by Members of the Legal Profession Against the Appointment of Judge Schuster

Readers please see Complaint to the Governor and Petition against the Appointment of judge Robert Schuster to the Supreme Court of the Turks & Caicos Islands.

Attached are as follows:
1. Courtenay Barnett’s letter to the Governor Dated May 20th 2015:

The Letter to Governor May 20th 15 (2)

2. Mr Barnett is enclosing a newspaper Article on the Human Rights abuses
committed against lawyers in the TCI in the Past:

The Human Rights Complaint in the TCI

3. His Excellency’s Timely response: The Governors Response

4. Petition against the Appointment:

the Petition Against the Appointment of Schuster

1. Courtenay Barnett’s letter to the Governor Dated May 20th 2015
20th May,2015

To: The Governor of the Turks and Caicos Islands His Excellency Governor Peter Beckingham Governor’s Office
Grand Turk

Your Excellency,

Re: Your Excellency’s need to address the issue under the Constitution as to the appointment of Judge Roberet Schuster

I thank Your Excellency for the email reply of the 8th day of May 2015 (attached for ease of reference). I have now informed the signatories to the Petitions of Your Excellency’s reply and have been asked to raise the question of the need for the appointment of a Tribunal to consider the considerable facts raised in respect of Judge Robert Schuster and his suitability for the position of a Judge in the Turks and Caicos Islands.

I am obliged to remind Your Excellency that the two(2) Petitions requesting Your Excellency’s timely attention under the Constitution to the questioned judicial appointment of Judge Robert Schuster to the position of Judge of the Supreme Court of the Turks and Caicos Islands remains a significant issue for these islands and for the future of confidence in the Judiciary (see: attached Petitions).

The implications of the Petitions relative to Your Excellency’s reply is not that the Petitioners merely sought to have the Judicial Services Commission be shown the Petitions, but following that step that Your Excellency’s Constitutional functions be upheld.

Sadly, I must say that Your Excellency’s response has not satisfied the Petitioners and there is concern about upholding the Rule of Law and the duties imposed under the Constitution. The historical past is instructive as regards the very serious problems of compromises in the judicial system of the Turks and Caicos Islands.

Historical context

Both Amnesty International and the UN affiliated group Human Rights Tribune had serious cause to comment internationally about the appalling state of justice in the Turks and Caicos Islands. The latter group published its observations in its April1998 ( vol. 5 nos.1-2) edition (see: attached copy at pp. 20 to 21).

In the Turks and Caicos Islands it really has been a battle to uphold the Rule of law for the advancement of justice. Examples might explain. My colleague, Attorney Lloyd Rodney (now deceased), had for years indicated to the judiciary that since the Constitution made provision for legal aid to indigent defendants, there was a constitutional breach in trying persons for serious criminal offences, murder, rape, armed robbery and the like without a lawyer appointed via legal aid. For many years the authorities simply ignored Mr. Rodney and the judiciary kept convicting persons on the most inadequate bases and oftentimes on scant or otherwise inadmissible evidence (i.e. if there had been a lawyer there would have been challenges to the inadequacy of the evidence in point of law). Ultimately, Mr. Rodney had an opportunity to make his point in the Court of Appeal. And in the case of Thomas Whitfield Williams v. Regina, Criminal Appeal number 5 of 1995 the Court of Appeal had this to say:-

“In that statement he complained of the manifest imbalance of the representation- on the one hand, the Crown being represented by crown counsel while on his side only himself, unlearned and unprepared.”

The problems that the Turks and Caicos Islands judicial system have faced over decades goes much deeper to the extent of the established order either choosing to play ostrich to the identified issues and problems, or much worse, to intimidate by way of reliance on the law of /scandalising the court’ when such issues and problems have been identified and stated by concerned persons. Notably, the Crime and Courts Act 2013 in England had finally abolished said offence in terms:-

s. 33 “Abolition of scandalising the judiciary as form of contempt of court
(1) Scandalising the judiciary (also referred to as scandalising the court or scandalising judges) is abolished as a form of contempt of court under the common law of England and Wales.”

The fact of the ignoring of certain obsolete laws in England from the 1930s did not disabuse the colonial powers of the assumption that there was no need for parity in the administration of justice overseas as is well exemplified by these revealing words from the Privy Council in the case of Ambard v. Attorney General for Trinidad and Tobago 1936 Appeal Cases page 322 at
page 335:-

” And that, in applying the law, the Board will not lose sight of local conditions, is made clear in the judgment in McLeod v. St. Aubyn [1899] A.C. 549, where Lord Morris, after saying that committals for contempt of Court by scandalizing the Court itself had become obsolete in this country, an observation sadly disproved the next year in the case last cited, proceeds:” Courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them. But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court.”

Now, again by reference to deceased Attorney lloyd Rodney who was imprisoned in the Turks and Caicos Islands for contempt of court by reason of scandalizing the court in a territory, as we know “consisting principally of coloured populations”. There remains this distant echo of the
attitude of contempt from other quarters in not acting in full accordance with the Constitution by addressing the very important issues raised in the two(2) Petitions.

In other words, the intent of the Constitution must be upheld if the Rule of Law is being upheld and is to be seen as operating fairly and properly.

In the Privy Council case of WendaI Swann v. Attorney General of the Turks and Caicos Islands- Appeal no. 43 of 2008 this instruction was given by their Lordships concerning the need for reasons from an administrative body in the Turks and Caicos Islands applying the law:-

“7. The appellant appealed against that decision, and, at the end of the hearing of the appeal on 14 August 2007, the Court of Appeal dismissed the appeal. The Board was told that no reasons were given that day, and that, despite at least one request by the appellant, the Court of Appeal has still given no reasons for its decision. If that is indeed the case, it is highly regrettable. Any court giving a decision after submissions have been made has a clear duty (at least in the absence of the parties expressly or impliedly agreeing otherwise) to give not only a decision, but also the reasons for that decision. Sometimes very shortly expressed reasons are appropriate, or at least acceptable. In the present case, for instance, provided of course that it represented its reasoning, the Court of Appeal could have complied with its duty by stating that the Chief Justice’s decision was right in the sense that it was the only correct outcome and/or because it was a decision which he was entitled to reach as a matter of discretion, and that his reasoning was unassailable. However, it appears that the Court did not even go that far: if that is indeed the case, the Court of Appeal failed to do its duty. This should not happen again.”

Thus, the failure to give reasons is a failure to perform an assigned duty. And so, since the Executive is assigned duties under the Constitution, there is a responsibility imposed to perform the duties therein referenced; and since undeniably administratively necessary, it remains incumbent upon Your Excellency to provide a decision accompanied by reasons in respect of the appointment of a Tribunal relative to the judicial appointment of Judge Robert Schuster. There is precedent in the Turks and Caicos Islands for this.

Since the Bill of Rights 1688 conferred a right to citizens to petition it is thus enshrined in English law:-

“Right to Petition. That it is the right of the subjects to petition the King and all such commitments and prosecutions for such petitioning are illegal.”

The subjects in the Turks and Caicos have petitioned the Sovereign’s representative, and it still remains their right to have a proper decision with reasons.

Complaint

In the historical context aforementioned and relative to Your Excellency’s email reply, the following points of concern arise:-

1. There are issues relating to Your Excellency’s responsibilities and functions under the Constitution; and
2. There are issues relating to the responsibilities and functions of the Judicial Services Commission; and
3. There are issues of very serious problems in the judiciary of the Turks and Caicos Islands which affect everyone.

Therefore, the Executive in the Turks and Caicos Islands, In the person of Your Excellency, inter alia, has to address the question of the appointment of Robert Shuster to the position of Supreme Court judgeship from been a Magistrate – being a demotion from the High Court Bench, after he was condemned by Amnesty International, the International Bar Association and the Tonga Law Society and vilified in the British press, inclusive of being termed a “Mad Judge”. And so, the Petitions presented to Your Excellency require lawful and proper and complete attention in accordance with the Constitution.

Conclusion

The Petitions presented to Your Excellency sought Your Excellency’s decision and reasons for same consistent with the fundamental requirements of the Rule of Law. And a justifiable decision after the Judicial services Commission “noted” the Petitions. Thus, in accordance with s. 85 (5) (6) and (7) of the Constitution and more particularly s. 85 (7) (a) -imposes a duty on Your Excellency. Either the decision is to appoint such a Tribunal or the decision is not to appoint a Tribunal and not less than the decision accompanied by reasons is what the Petitioners and public would reasonably require in accordance with the Constitution, whichever way the decision is made. Anything less, obviously would be a shirking of duty relative to the Constitution.

On behalf of the Petitioners we now all look forward to Your Excellency’s reply.

Barnett (Attorney)- for and on behalf of the Petitioners
Attch. Petitions
Email response from Your Excellency
Human Rights Tribune article concerning the Turks and Caicos Islands
cc. Amnesty International, International Bar Association All concerned interests

2. Mr Barnett is enclosing a newspaper Article on the Human Rights abuses
committed against lawyers in the TCI in the Past:
Download at: http://www.tciaffairs.com/wp-content/uploads/2015/05/The-Human-Rights-Complainst-in-the-TCI.pdf

3. His Excellency’s Timely response: The Governors Response

[email protected] ([email protected]) Add to contacts
5/08/15
To: [email protected],[email protected] Cc: [email protected], [email protected]
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From: [email protected]
Sent: Fri 5/08/15 3:38 PM
To: [email protected]; [email protected]
Cc: [email protected]; [email protected]
Dear Mr Barnett and Mr Swann,

I am sorry that it has taken me some time to respond to the petition you both, and others separately, sent to me about the appointment of Robert Shuster as a Judge of the Supreme Court. I wanted to draw this petition to the attention of the Judicial Services Commission, and was able to do so when members visited Turks and Caicos.

The Commission have asked me to say that they have read the petition, and taken note of its contents.

If you thought it appropriate and practical I would be grateful if you could inform other signatories of this response.

Many thanks, and best wishes – Peter

Peter Beckingham, Governor Turks and Caicos Islands.

4. Petition against the Appointment:
Download at:
http://www.tciaffairs.com/wp-content/uploads/2015/05/the-Petition-Against-the-Appointment-of-Schuster.pdf

For more on this story go to: http://www.tciaffairs.com/news/petition-by-members-of-the-legal-profession-against-the-appointment-of-judge-schuster/