The name of the author (lawyer) has been withheld by BU

 

IN 1973, Lord Reid, had occasion to comment on an apparent absurd legal conclusion which arose in the case HAUGHTON v SMITH.  The absurdity arising from the decision in a Lower Court was that the law had made it possible to steal from an empty pocket.  Reflecting on an earlier assessment by Mr. Bumble of Dickensian fame, the learned Law Lord remarked “the law may sometimes be an ass but it cannot be so asinine as that.” The absurd notion was therefore rejected.

The Nation’s Editorial of Monday 13 December 2010 caused me to reflect on the above assessment. The emphatic and unambiguous assessment of the writer was that a person who had practiced in India or any other Commonwealth country for a period of fifteen years was qualified to be appointed Chief Justice of Barbados; Mr. Marston Gibson who qualified to practice in the Courts of Barbados and was admitted to practice in 1981, WAS NOT.  It was the most magnificent piece of foolishness I had ever seen in the editorial of a newspaper and which was being passed off as informed comment.

The genesis of the debate surrounding the appointment of the Chief Justice which has taken on a very unfortunate political element may be located in the last appointment when Mr. David Simmons, the then Attorney General was appointed Chief Justice.  Further fuel was added to the already inflamed political passions when the political directorate refused an extension of his tenure earlier this year and he had to demit office.  This unfortunate event has in my view stripped the debate on the new appointment of the much desired objectivity; I shall therefore try, by this contribution, to give some greater insight into the law affecting the appointment of a Chief Justice.

THE LAW

The appointment of the Chief Justice is made pursuant to S.81 of the Constitution of Barbados.  However that section stipulates that the qualification for appointment shall be such as may be prescribed by any law for the time being in force.   The Editorial and other commentators have correctly cited this law as Sec.7 of the Supreme Court of Judicature Act Cap 117 A of the Laws of Barbados.

Sec 7 (2) stipulates:

“Any person is qualified for appointment as Chief Justice or as a judge of the Court of Appeal who

• 1. Is a judge of the High Court; or
  2. Is qualified to practice as an Attorney-at-Law in such a Court and has been in practice as such for a period of, or periods accordingly in the aggregate to not less then, 15 years.

(3) In this section “practice for a period as an attorney-at-law” includes any period during which a person served as an attorney-at-law, advocate, barrister-at-law, Magistrate or Registrar of a Court in some part of the Commonwealth or as a Parliamentary Counsel or as 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 services Commission”.

The above provision was used by the editor to categorically state that Mr. Gibson DOES NOT FULFILL THE QUALIFICATION

Statutory Interpretation/Construction

The philosophical underpinning of the interpretation/construction of a statute has always been to see what Parliament intended.  To arrive at that intention, a court will first apply a LITERAL reading of the statute.  If that reading leads to an ABSURD conclusion, the literal approach will be substituted for a PURPOSIVE approached to arrive at the LOGICAL INTENT.

Let me first pose the fundamental question:

Could the Parliament of Independent Barbados have intended that a person from India, Malawi, Pakistan, Ghana, Zimbabwe……… be qualified for an appointment as Chief Justice in Barbados by virtue of his having served in the commonwealth, and a native Barbadian who QUALIFIED FOR PRACTICE AND WAS CALLED TO PRACTICE 29 YEARS AGO be not qualified?

Let us therefore examine the provision:

“7 (b) “is qualified to practice as an attorney-at-law, advocate……. To not less than, 15 years.”

A person is “qualified to practice” law in Barbados by virtue of acquiring the appropriate certificate from one of the approved Law Schools in the Caribbean.  Some exception to this was made for a number of persons in the 1980s, but the door has since been shut.  All practitioners of law must produce certification as stated above.  Mr. Gibson has that certification.  Is the editor suggesting that a Commonwealth person who does not have that certification might be so qualified and Mr. Gibson is NOT?  Can there be any greater illogic?

The facts speak for themselves.

“And has been in practice……..” what does that mean?  I submit that as long as an Attorney-at-Law is on the Rolls.  HE IS IN PRACTICE.  If Mr. Gibson wishes to appear in our Courts TODAY, he only has to pay his fees.  HE DOES NOT HAVE TO BE READMITTED.  But, Sec 7 (3) clenches the point….:

In this section “practice for a period as an attorney-at-law” INCLUDES (my emphasis) any period……..

It is a basic rule of Statutory interpretation that the presence of the word “includes” implies the additional meaning “BUT NOT LIMITED TO”…….

This submission puts Mr. Gibson’s qualification for the post BEYOND DISPUTE.

It is unfortunate that the editorial writer did not avail himself of the kind of guidance necessary to assist him in interpreting the statute, and it is a warning to all, that it is unwise to jump into a matter such as this without that guidance.  Statutory Interpretation requires more than a basic ability to read the English Language and “a little learning is a dangerous thing.  Drink deep or taste not the Pyerian Spring.”