Tue | Nov 24, 2020

Tony Deyal | Judgment Day

Published:Saturday | June 1, 2019 | 12:00 AM

Justice might be blind but it should by now clearly see that Judgment Day is here, and it is not just a bad Hollywood movie but a series of events that even, with all due respect, makes me wonder about judges and whether we are courting disaster or merely marking time.

In Guyana, the majority of people are waiting on a judgment by the Caribbean Court of Justice (CCJ) for what constitutes a majority and wonder whether we can deem it a majority decision. In England, the Privy Council ruled that a political activist had an arguable case for accessing documents relating to a decision by the Government of Trinidad and Tobago (TNT) to withdraw a multimillion-dollar lawsuit because it “may have been influenced by political factors.”

On the other hand, a few years ago the Daily Mail headlined an article ‘Secret. Smug. Sinister: They’ve covered up torture, led us into an illegal war and are now placing the press under state control. It’s time to kill off the shadowy establishment mafia that is the Privy Council.’ The irony is that even though the CCJ is in TNT, the Government chose not to recognise this court as its final solution but, as many predict, might soon reverse its decision in light of its latest humiliating defeat when not only the contents but the entire Privy hit the Trinidad Government fans.

Earlier this month, a former employee of India’s Supreme Court accused the country’s chief justice of sexual harassment. In Trinidad, a senior counsel wants the prime minister to announce in Parliament whether there is need or justification to trigger a Section 137 tribunal to investigate allegations of misconduct against Chief Justice Ivor Archie. The fumbling, bumbling and rumbling, twists and turns, seem to justify Mr. Bumble’s outburst in Oliver Twist that “The law is an ass” and, in fact, might be a morass or its plural.

Fortunately, as a humorist, I have a vast body of wit that I can use as refuge and recourse. I take refuge, especially, in the many skirmishes between judges and F.E. Smith, a brilliant lawyer and orator who later became Lord Chancellor and the First Earl of Birkenhead (July 12, 1872 –September 30, 1930).

On one occasion, as a young man, Smith represented a tramway company in a suit brought by a boy who had been blinded. The judge directed that the boy should be lifted and put in a chair so that the jury could see him properly.

Thinking this made an undue emotional impact on the jury’s sympathy, Smith protested, “Your honour, why not pass the boy around the jury box?”

The judge rebuked Smith for his improper remark.

“Prompted,” Smith said sharply, “by an equally improper suggestion.”

The judge did not pursue Smith’s remark but tried to quote Francis Bacon at him. “Youth and discretion,” he chided, “are ill-wedded companions.”

Smith was immediately ready with a counter-quotation. “My lord, the same Bacon also said that a much-talking judge was like an ill-tuned cymbal.”

The judge got upset and said sharply, “Now you are being offensive, Mr Smith.”

“We both are,” agreed Smith. “The difference is that I am trying to be, and you can’t help it.”

Were I a lawyer, I would never try anything like that with any Caribbean judge. They all seem to suffer severely from what a Canadian lawyer, Marcel Strigberger, in an article ‘Judging the judges: With all due respect, of course’ calls “judgitis” or, fundamentally, a God complex. He says “judgitis” can get to the judges’ heads and they can get nasty.

He recounts, “There was one who insisted that male lawyers appearing before him wore either black or grey pants. If some unsuspecting lawyer appeared in brown pants, Justice X would immediately interrupt him saying, ‘I can’t hear you’.”

‘DRUNK AS A JUDGE’

In Trinidad, a legal official who was not even a judge, Chief Magistrate Sherwin McNicolls, decreed that attorney Israel Khan should not wear a Nehru suit in his court and ejected another lawyer, Fyard Hosein, for wearing a bow tie. This is when I take pleasure in F.E. Smith’s clashes with judgitis.

Smith was conducting a long and very complicated case before a judge for whom he had scant regard, considering him slow and pedantic. As the case drew to a close, the judge intimated that some of the issues involved were still unclear to him. This prompted Smith to give the judge a short but cogent account of all the issues and their implications.

As Smith sat down, the judge thanked him courteously, but added, “I’m sorry, Mr Smith, but I regret that I am none the wiser.”

Smith rose wearily to his feet again and commented, “Possibly, my lord, but you are now much better informed.”

On another occasion, Smith continued to argue for so long that the judge became impatient and exclaimed, “Whatever do you think I’m on the bench for?”

To which Smith, quite unperturbed, replied, “It is not for me, m’Lud, to attempt to fathom the inscrutable workings of Providence.”

In another famous incident, Smith described someone as being “Drunk as a judge.”

The judge corrected him “The expression, as I have always understood it is, ‘sober as a judge’. Perhaps you mean ‘as drunk as a lord’?”

Smith said quietly, “Yes, my lord.”

Fortunately, Smith was not the only lawyer to treat judges with disdain. One barrister was arguing at great length in a wearied court and the judge was plainly impatient.

Finally, he broke in with, “What you are now saying is going in at one ear and coming out at the other.”

The barrister was not deterred. “Indeed, my lord,” he replied, “is there nothing there to stop it?”

Tony Deyal was last seen telling the story of the judge who, questioning the competence of a pathologist, asked him, “How many autopsies have you performed on dead people?” Email feedback to columns@gleanerjm.com