Saturday, March 2, 2024

FRANKLY SPEAKING: Strike, or contempt of court?


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The DAILY NATION of October 2 carried a story which suggested that the Barbados Bar Association was contemplating instituting strike action at the Supreme Court Complex, ostensibly to get the attention of the Chief Justice.
I am sure that the first reaction of most people seeing the report was that strike action is something that is associated with trade unions and not the Bar Association. A strike is the weapon of last resort in a trade union’s arsenal to protect the rights of its members.
You should recall, when all else failed, that the Barbados Secondary Teachers’ Union resorted to strike action only after a number of years to resolve the problems at Alexandra School. While that is not the norm, it demonstrates that responsible unions recognize that a strike is their most potent weapon and should be used sparingly.
However, when workers are ordered to strike by a legally recognized union, the striking members do so in the knowledge, and with the assurance, that their jobs are protected by the provisions of the Trade Union Act, Chapter 361, of the Laws Of Barbados.
An employer who dismisses or adversely affects a worker who had taken part in a legitimate strike could, if found guilty by a court of law, be fined or see the inside of a jail cell. Let me hasten to add that strike action is not the exclusive preserve of trade unions: any group can organize a strike.
However, I am not aware that the Bar Association enjoys similar protection for its members. So what therefore could be the consequences, if any, to a lawyer who took part in a strike called by the Bar Association?
The Barbados Bar Association is not a trade union. Even though it existed in law since 1940, it was only declared and adjudged to be one body politic and corporate, by statute, in 1972. Its role, functions and responsibilities are set out in the Legal Profession Act, also of 1972.
That act makes it compulsory for every attorney-at-law who has been issued a practising certificate to be a member of the Bar Association. I am not aware that the Legal Profession Act amended the Constitution of Barbados which guarantees persons the right to associate or conversely the right not to associate. I am surprised that lawyers who are always in court seeking to protect people’s rights have not gone to court to protect their own rights. But I digress.
Since lawyers are not protected by the provisions of the Trade Union Act if they institute strike action, what could be the effect on them, if any? To my mind, a lawyer who stands up outside the court and refuses to enter and represent his client in a matter that has been set down for hearing is not on strike; he would be in contempt of court.
If lawyers have problems because the Chief Justice, in their opinion, either refuses or neglects to perform his duties, there are avenues available to them other than a strike. I am sure that as lawyers, they would be aware of the provisions of the Administrative Justice Act, Chapter 109B.  
That piece of legislation allows persons who are affected by the acts or omissions of a public official to institute legal proceedings against that official by seeking judicial review. Among other things, the court can make an order of mandamus requiring the public official to perform his duty, including a duty to make a decision or determination or to hear and determine any case.
Admittedly, in a small country like Barbados, any lawyer who pursues this course of action might become a pariah, but he is obligated by the ethics of his profession to use his best efforts for his client. If that means bringing the Chief Justice or any other judge before the court, then so be it.  
My advice to the Bar Association would be: you are not trade unionists, leave the striking to us. Fight the way you have been trained; go to court. Your publicity seeking stunt is not a substitute for good legal argument.
By now it should be obvious that I have no sympathy for the position in which the Bar Association finds itself. This is the same Bar whose members stood idly by, for the most part, and allowed the Government to amend the Supreme Court Of Judicature Act to manoeuvre persons who did not meet the legal requirements into the post of Chief Justice.
If members of the Bar Association have problems with the way the Chief Justice performs his duties, they have only themselves to blame.  
• Caswell Franklyn is a trade unionist and social commentator.


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