In a dramatic move that had been anticipated in some circles, Senior Justice John Lyons has stepped down from the bench, heightening the public debate that was sparked in March when another senior judge criticized his actions in a controversial ruling.
The Nassau Guardian confirmed yesterday that Lyons formally advised the prime minister and chief justice of his resignation. While it is expected to come into effect in August, it is understood that he will go on leave as of Monday.
News of the judge's resignation emerged the same day The Guardian exclusively published details of a ruling he recently handed down, which was discussed at length in the Court of Appeal on Wednesday.
As indicated, his resignation came weeks after Senior Supreme Court Justice Anita Allen heavily criticized the appointment of an accountant with little experience, who was chosen by Lyons to prepare a financial report in a civil case.
Allen questioned the integrity of the report that was prepared by Daniel Ferguson, who is the brother of a woman who "has more than a friendship" with Lyons, according to her ruling.
Lyons was in his native Australia at the time of her judgment and many people had been waiting to see if he would provide any sort of response to the report.
In a written ruling on April 30, Lyons refers to a case he identified only as the "W" case. He handed down the ruling after attorney Fred Smith, a Callenders and Co. partner, requested that he recuse himself from a major case involving the Central Bank of Ecuador, Conticorp SA and other parties. This is unconnected to the "W" case.
As reported by The Guardian yesterday, Smith submitted that Lyons had showed hostility toward Callenders attorneys on more than one occasion and blamed them for the various newspaper articles that had been published about him and his private life, as well as his decision to appoint the accountant.
Lyons admitted that he had been angered by "recent occurrences" but said that had dissipated and he did not believe the objective observer would conclude that he would be biased toward Callenders and its clients.
Among other comments, Lyons remarked to one of the attorneys: "I see that Callenders is here, blood dripping from them after the execution."
In his ruling, Lyons said: "Reading the scriptures gives one great comfort and strength, particularly in difficult times. I am not the first person to have demonstrated anger at lawyers — See Luke Chapter 11 verses 45 to 54.
"No one would say that our Lord was biased against the clients of the lawyers. His great love for all of us knows no limitations."
In Smith's notes from the Lyons recusal matter that were entered into the record of the Court of Appeal on Wednesday, Lyons is quoted as saying to Smith, "You're predictable bringing your application (for recusal). I know you're following instructions. You and I go way back. I anticipated such an application after the judgment was handed down last week saying I am not fit to be a judge."
Smith responded: "My application is not that you're not fit to be a judge but that my firm acted in the case that brought the revelation (made in the Allen ruling) and having regard to some comments made as outlined in [the affidavits of two other Callenders attorneys]...For the reasons set out in our submission, there is a real danger that you may not be impartial in your deliberations. It may happen subconsciously."
According to the notes read in the Court of Appeal, Lyons said the approach taken by two firms in this town had attacked his conduct and the attorneys failed to follow the process in place. According to the notes, he declared that there had been an execution and the inference was that he doesn't carry out his oath without favor, is a liar, and is unfit to be a judge.
Lyons is quoted as saying that he will not create a precedent that "if you attack a judge publicly you can then come along and ask that judge to recuse himself."
News of his resignation came a day after the Court of Appeal heard Smith's appeal of the recusal decision. On Wednesday afternoon, President of the Court of Appeal Dame Joan Sawyer said the justices will make a decision at a later date.
The Central Bank of Ecuador case — a long running matter — was scheduled to start before Lyons next Tuesday. It was allegedly one of two lengthy matters Lyons had decided to hear this year.
The Ecuador case was scheduled for three months, including time for writing a decision.
Smith submitted in the Court of Appeal on Wednesday that as the hearing has not yet begun, prudence would lean on the side of being "safe rather than sorry" and lead the judge to be recused. He contended that the recusal was necessary to maintain public confidence in the court system and avoid the possibility that the public may perceive an unconscious bias.
Now that Lyons has stepped down, the Ecuador case will end up in the hands of another judge, although there is not yet an indication of how soon it will be heard.
This is not the first time Lyons has been at the center of controversy after a ruling.
On November 6, 2006, he handed down a hard-hitting judgment declaring that the judiciary was not independent because the Christie-led government failed to cause the appointment of a Judicial Review Commission on two occasions.
"The sole responsibility for this fiasco sits firmly at the feet of Cabinet," he determined in that ruling. "I am just the messenger. I know my lot. Like most messengers, I will surely be shot. The messenger can expect to be pilloried in the Parliament, on cue no doubt to a non-aligned member of the House, who will launch the attack during a debate on a bill that has nothing to do with the judiciary. The messenger can expect to be untruthfully scandalized in the tabloid press."
Chief Justice Sir Burton Hall later said he was troubled by the controversy this ruling caused in 2006. Sir Burton did not take press calls yesterday.
Originally published in The Nassau Guardian, 8 May 2009.
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