Submitted by Caswell Franklyn, Head of Unity Workers Union
The Saturday Sun of March 20, 2011, reported that the House of Assembly passed an amendment to the Supreme Court of Judicature Act just after mid-night. That amendment partly paved the way for Mr. Marston Gibson to become the next Chief Justice of this country.
The lead-up to the amendment generated a considerable amount of controversy, and I would have been interested in the debate. Unfortunately, it took place after my bedtime. Many persons in this country rightly expressed abhorrence when they realized that the amendment was being done to facilitate one predetermined candidate. Their abhorrence would have been more acute if they were aware that it is normal practice to change qualifications to enable the appointment of individuals, who did not make the grade.
This matter with the Chief Justice only came to light because the qualifications for that post are found in the Supreme Court of Judicature Act, and any changes would require amendments to that Act. On the other hand, in the Public Service, when Government wants to change the qualifications to facilitate a particular individual, the Minister for the Civil Service merely signs an order to amend the Civil Establishments (Qualifications) Order, which is generally done in secret. In most cases, public officers only find out about the changes when they are about to apply for a senior post or when they are overlooked for promotion.
By way of example, when a vacancy occurred in the office of Chief Marshal, the candidates required: “Approved qualification in Public Administration AND Para-legal Studies” among other things. The qualifications were changed by replacing “AND” with “OR” in order to facilitate the preferred candidate.
Now Government has spent a lot of time and goodwill to ensure that their choice for the office of Chief Justice meets the requirements of the Act, but does he, even with the amendments? The amendments which apply to Mr. Gibson’s case state, in part:
(2) A person is qualified for appointment as Chief Justice or as judge of the Court of Appeal who
(d) is qualified to practice as an attorney-at-law in Barbados and has practiced as such in Barbados, in some part of the Commonwealth or in a common law jurisdiction for a period of, or periods amounting in the aggregate to not less than, 15 years.
(3) Notwithstanding subsections (1) and (2), a person is qualified for appointment under those subsections if that person
(a) has been qualified to practice as an attorney-at-law in Barbados for the periods specified in those subsections; and
(b) is a professor or teacher of law at the University of the West Indies or at a School for Legal Education approved by the Judicial and Legal Service Commission.
Even without the benefit of legal training, I can foresee problems trying to make this amendment apply to Mr. Gibson. Firstly, the amendment did not define the term “common law”. He is practicing in the New York, and the obvious question would be, is New York a common law jurisdiction for the purposes of Barbados law. The answer can be found in the Interpretation Act, Section 3 states:
Every provision of this Act shall extend and apply to every enactment whether passed or made before or after 16th June 1966; unless a contrary intention appears in this Act or in the enactment.
In addition, Section 46 of the Interpretation Act provides that the expression “common law” means the common law of England. Mr. Gibson is therefore not practicing in a common law jurisdiction that is recognised as such by the laws of Barbados.
Secondly, if Government was able to surmount the obstacle of England versus US common law: they would still find a problem because subsection 3 of the amendment act provides that the candidate would have been qualified to practice as an attorney-at-law in Barbados for periods specified in subsection (1) and (2), that is 15 years, and is a professor or teacher of law at the University of the West Indies. He was a teacher of law at UWI Cave Hill some time ago but clearly, he is not now in order to comply with the amendment act.
Whatever the outcome of my not so legal opinion, I expect some fancy statutory interpretation to make Mr. Gibson fit into the office of Chief Justice.
Barbados Underground 
ruth do remember that unless there is a clear showing of judicial ignorance that the chief justice is in until retirement. most judges in america aren’t done to tenure and must be re-elected which can be expensive process with possibility of you not getting the position. so you have a position for life then pension vs one in which you have to fight to get. it quite easy to see he was never going for the latter. One can only hope when he get the position ( cause there no way the government is going to ease of after doing all this ) that he make all the talk of it being political appointment go away with unbias ruling and practices and improvement to the judicial system,
anthony- suppose it turns out in the end that he does not have to capacity to do all those things those supporters on the blog are expecting of him and what evidence is there to determine that he would not dance to the tune of his political masters? after all, he does owe the govt a lot.
to sweetie- are you not aware that what little independence to some extent there was to govern appointments to the public service through the various service commissions went totally through the window with the introduction of the despicable 1974 public service amendments by no less a person than the father of independence. these spiteful amendments placed appointments to the most important positions in the public service including the judiciary firmly in the hands of the political directorate.since then, the public service have been unable to function to the best of its ability.
@Scout. I am too old and tired to bother to try to teach some idiot how precedence and guidance operate or, more basically, what they mean. Since you know so many attorneys, go and ask one of them to kindly explain it all to you, always provided you have the capacity and wit to understand it in the first place. Me now definitely done with this frustrated grinding of teeth by those who want to see everything, especially the deceased justice system, become a monument to Simmons.
Gentlemen, A guy who went to such a university in NYC and did his grad studies at the Manly law school in JAmaica was accepted to the bar here in BIM.under the BLP.it made papers and was accepted by all in thelaw ferternity. So the man qualify if the government of that time reconised that university and allow a person with a degree in law to pratise here
It is ingrained in the dna of Bajans to denigrate their own.
Yet Bajans are respected in every country in which they work.
Marston Gibson is a Bajan. An educated accomplished Bajan.
nuff said.
Hants
You seem not to understand the point. No one has ever questioned Mr. Marston Gibson’s educational accomplishments.
Whenever Government wants to employ one of their own they change the rules. (I am speaking of both BLP and DLP). That is my sole concern. They have not only done it for Mr. Gibson. Others are done in secret because changes to qualifications for most other public officer only need an order signed by the Minister for the Public Service.
We now have situations in the Service where junior officers require greater qualifications than their bosses because the boss had a friend or political connection. Let us face it, the problems that they are saying that Mr. Gibson would clean up, when he becomes Chief Justice, were created by politicians appointing their lazy friends who found it difficult to make a living at the private bar. Some of them take months and even years to deliver decisions. At the end of their careers, if they serve 20 years, they retire on a pension equal to their salaries. I know of one case where the person did not serve 20 but was given a full pension in error. That error was never corrected. Incidentally, he was made a judge when his private practice was down in the dumps.
@ruth
there is none.As we the people can’t effect it unless there is mass protest ( this unlikely only protest we would have is mass taxation , mass job retrenching in government or devaluation ) the appointment can’t be stopped. If he fails to live up to promise it just be another disappointment in the long list of horror in the judicial system. Also another point against the dlp but not in this coming election but the next. as we must give him some time to try.
Amused
I thought your vocab was better but like all political yardfowls, the quickest thing you can do is fly up unto the paling and do what you know best, crow loud and senseless. Pity the FOOL
to caswell- do you not agree that these jobs-for- the- boys situations arise out of political skulduggery as a result of the infamous 1974 constitutional amendments?
Ruth
You are absolutely correct. I was a boy, but I well remember the BLP marching to Government House demonstrating against these amendments, and promising to repeal them when they took power. They did that in 1976 and to date those amendments remain in force.
Those amendments neutered the Service Commissions and are responsible for a lot of incompetent persons at the top of the service. You can now only get a senior job in the Public Service with the blessing of a minister of Government.
The service commissions are reduced to rubber stamps. The new Public Service Act only made things worse.
to cas- you are correct; after ranting and raving against the amendments, the hypocritical blp which you supported at the time used the same amendments to their political advantage and are equally complicit in the emasculation of the public service.it was these kinds of shenanigans that turned me against the present system of governance.
Ruth
You can’t help but to attack me. You wrote, “the hypocritical BLP which you supported at the time used the same amendments to their political advantage…”
I was between 3rd and 4th form at school when those amendments were passed. At that time I was not politically involved.
PROFESSOR ENDORSES AMENDMENT
Friday, 25 march 2011 21:56
There is more support for government’s amendment to the Supreme Court Act to pave the way for the appointment of a new chief justice.
Dean of the Faculty of Law at the Cave Hill Campus of the UWI Velma Newton, speaking in her capacity as an independent senator she has dismissed suggestions that the appointment stands to benefit the party in power at the time of the amendment.
She contends that there’s no logical answer to the current practice of employing lawyers from Canada, Australia and Tanzania but not Barbadians who are working elsewhere because they have not worked in the Commonwealth for the 15 or ten years.
Senator Newton noted that Barbados’ highest court -the Caribbean Court of Justice has already appointed a judge who is not from a civil law jurisdiction.
David
So Prof. Newton hasendorsed the amendment, does thar make it right? plus the timing of that amendment? Is she the judicial goddes? As an independent senator who is appointed by the G.G on recomendation from the P.M, what would you expect?
@The Scout
The reason BU highlighted the Independent* Senator’s comment is because people outside the political have a view just like you.
David;
How are you so sure she is outside the political?
She always comes over as pro DLP. The Hill is full of DLP sympathizers. Many of these lecturers and professors foist their partisan views on the students more so than ever. It was so in my day and my son often told me of the blatant DLP bias during the last election.
For example notable ones like Professor Donn Marshall, Professor Justin Robinson and my friend’s daughter told of the blatant expression of support for the DLP by Letnie Rock who students could never find to discuss anything relating to their studies as she ws too busy pushing the DLP agenda. I hope all them happy now with the way how things are going in this country. They should be, most of them ended up as chair persons of boards.
Lawyers from Canada, Australia and Tanzania can work in Barbados?
Since I is a dual citizen yuh mean I cuh hire a Canadian to do work fuh me in Babadus?
@checkit-out
Are you aware of any public utterances which would permit us to label her?
No! Definitely no public utterances. But I have a lot of sympathy for prodigal son’s post above.
Has Velma Newton read the requirements to be a judge of the CCJ? Does the CCJ not also serve Surinam? Is Velma Newton a lawyer?
@Jack Spratt
The Professor is endorsing the amendment to the act.
You need to exercise your comprehension skills man 🙂
David
Your post, PROFESSOR ENDORSES AMENDMENT
“She contends that there’s no logical answer to the current practice of employing lawyers from Canada, Australia and Tanzania but not Barbados who are working elsewhere because they have not worked in the Commonwealth for 15 or ten years”.
I did not hear Senator Newton and I sincerely hope that you have misquoted her. That statement is absolutely untrue. I am over 50 years and I cannot recall any judges being appointed from any of those jurisdictions since independence. I was quite young before so I would have to be guided.
If Senator did make those assertions I would have to review the high esteem in which I hold that lady. It would be obvious that she too missed the point. It has nothing about appointing people from Pakistan as the Attorney General and others attempt to drag red herrings across the trail.
The preferred candidate did not meet the legal requirements and Government is using its majority in Parliament to supercede other qualified candidates. Government is really saying that none of the present crop of judges is suitable. I think that they should be insulted and demoralised. Not only are they overlooking qualified persons who remain in Barbados, who gave up the opportunity to earn high fees at the private bar: they have opted for someone with no discernible track record in management who is not a judge.
@Prodigal Son
What are you bleating about? Everyone in Barbados is politically aligned and University lecturers are no different but some may hide it better than most. The difference is that the DLP is in the ascendancy so it appears that more people are leaning their way. When the shoe was on the other foot and Owen had his “Politics of Inclusion” weren’t other prominent people being seen as pro BLP?.
When Owen foisted his army of “Consultants” on a supposedly independent Civil Service, weren’t they BLP people too?
You need to “Get Real” but it is difficult when you see everything through BLP blinkers
David, it is you who lack comprehension skills. Now read slowly…does she not see that the CCJ’s position is different to ours?
I notice you wrote “who is NOT from a civil law jurisdiction”. If she said that she has lost it…We are a COMMON law, not a CIVIL law jurisdiction! It would be strange if the CCJ appointed most of its judges from Civil law systems.
@jack spratt
Using our best comprehension skills it is quite obvious the CBC reporter messed this up.
We are agreed on that, David. CBC messes up often these days…nothing new!
David
You seem to expect us to accept Ms Newton’s mouthings, just becauase she is a prof, well she’s no better that any other person who can think for themselves. The problem is many of these prof have one track minds and are only good at what they teach but maqny of them can’t even fry an egg. Many have become creatures of some political party. I remember Maxine Mc Clean, even though she not a prof., denying on the call-in program that she’s not attached to any political party, yet when David Thompson died she admitted that she was his adviser to him. I stopped trusting her from then
@The Scout
That is not what she stated publicly but why bother, your mind is set anyway.
Interesting interview with Marston Gibson in the Sun today. Any comments anyone?
We hope he can do what says he can do :). He got a difficult job ahead.
Anthony & Amused
I got news for you. The interview is interesting for a number of reasons, but not for what you think.
Mr Gibson is coming to implement a number of pioneering changes to the administration of the judicial system. Unfortunately all the changes that he is planning to implement have already been done.
He plans to abolish the assizes in criminal cases, Sir David has already been there and done that.
Again, he will introduce assistants for judges, sorry there are already four since 2004 as part of the justice improvement project.
He also plans to abolish preliminary hearings before magistrates in criminal cases. I don’t know if he was listening but that was announced by none other than Sir David Simmons at the opening of the new Supreme Court complex but they were awaiting a challenge at the level of the Privy Council in an Antiguan case against a similar move.
Since he is coming to do all those things that have already been done, and he cares so much about Governments finances, I suggest that he should stay in New York and save the Government the cost of relocating him. By the way, I would like to see a copy of his CV.
to cas- my apologies; i should have said which you later supported. that aside, i support your comments on fraternal brother judicial referee promised chief justice post even before amendment passed mr marston gibson.
@David. Franklyn’s slip is showing big time. Seems to have acquired an intimate (and so imperfect) knowledge of the Simmons “legacy”. And he wants to see a CV. He and his master intend to play their futile (and to Barbados’ justice system, damaging) game for all they are worth, even though the game is played out. Oh well, it is a free country.
Amused;
Was Marston Gibson an old Foundation student? He sounds a lot like Freundel Stuart, minus the big words.
He also needs to do some work on his timing. Unless I missed something, was the Interview really necessary at this time? Does it give the sense that he is head and shoulders above the pack? Does his rationale for not packing up his candidacy for the post ring true?
So Gibson hasn’t got to Barbados yet and they want him to consult them before he speaks.
This is the kind of blank blank that really blanks me off about some people including Lawyers in Barbados.
Consult whom.The man is taking on a job and chooses to speak to a journalist and have it printed in a newspaper. What is wrong with that.
Speak less so the Lawyers in Barbados can keep the public in the dark and pretend there is nothing wrong with the system?
The big shot criminals can post bail. The poor man has to spend years on remand.
The people of Barbados needed to hear from the CJ designate how he proposes to “change tings bout dey.”
@Hants. Well said.
@checkit-out | March 27, 2011 at 9:53 PM . Does it really matter where he went to secondary school? The fact is that he is Bajan an qualified to do the job. I was at HC, but Foundation was always an excellent school and a front-runner. However, we need to focus on Mr Gibson’s later attainments, like Rhodes Scholar, UWI, Oxford and the like. Those are what define him in relation to the job of CJ. Anyway, that is how I see it – that he is Bajan and very qualified.
@Checkitout
Was Marston Gibson an old Foundation student? He sounds a lot like Freundel Stuart, minus the big words.
**********************
Foundation was/is an excellent school, we may not have had the name recognition of some other schools but many of our students have done well in numerous fields since leaving school and that’s all that matters.
BTW how does William Layne speak?
And since you didn’t go to Foundation? Your loss
Amused;
The question about if MG is an old Foundation boy had nothing to do with snobbery on my park. It had to do with my noticing a similarity in great respect for the teachings of their elders in the two men. I was an HC boy too but I think that, judged from where they started, several old scholars from other secondary schools in Barbados have done significantly better in later life than HC boys in general. Re. your enumeration of MG’s later accomplishments. They are of course excellent and outstanding, but the proof of the pudding is in the eating. The interview did not leave me with the feeling that “at last we have got an outstanding CJ”. But I am probably wrong and, for the country’s sake, I hope I am wrong.
@checkit-out | March 28, 2011 at 8:42 AM. I never thought you were indulging in snobbery and you are right – many pupils of schools other than HC have gone on to do significant things. I also agree that the proof of the pudding……… I however have great confidence in the CJ and all I can do is pray that I am right.
I am informed that the Government will have Mr. Gibson sworn in to assume office on April 1, 2011. It is significant that that happens to be All Fools Day.