The only problem with your source’s assertion, Sarge, is that there might be an issue of whether the US may be considered a common law jurisdiction at the present day.

@Jeff

Can you cite empirical info to support your last comment?

@Sarge

Perhaps the ‘opinion’ contained in the blog is part of a kite flying exercise. Governments in Barbados are not unknown to practice such an approach as a prerequisite to making decisions.

@Jeff

It appears whether by accident or design you have now opened a can of worms. The big question.

Not really, David. I am confident that any amendment will serve to encompass the administration’s choice beyond question…they could simply refer to the US by name, for example. Or even a state….

Humm that does open back another can of worm. I think that same question was posed earlier as even though it is the US and common law is practice there isn’t still somewhat different from our own jurisdiction.

What other examples do we need of a bungling Government ?

The appointment of a CJ has never been so madly mismanaged , mangled and mishandled.

EVERYTHING THIS GOVERNMENT TOUCHES TURNS TO DUST.

Budget Speech after Budget Speech is laced with non-implementable ignorance: cell phone tax; tax on lottery winnings; busfares for school children on ZRS/minibuses (PSVs).-Confusion reigns. Did I hear someone say the selection of Mara (Barrow) Thompson is another example ?Was it Dr. Leroy ?

The selection of a CJ has now left the goodly gentleman in a state of confusion. I would advise Marston to stay where he is because these people bout hay aint ready.

Man this Government is so poor-rakey

The bottom line is that the USA IS a common law country and considered to be so, no matter what academic speculation may ensue about that. There is no can of worms.

If David Thompson were still with us, the announcement would have been made by now and a proactive stance taken. This procrastination does not bode well for the government.

Crusoe
Is there a whiff of a despotic tendency? Do I sense that there was (is?) a danger of genuine popular appeal morphing into personification of rule characterised by a cavalier disregard for the norms of established law and public administration and the demagogic use of the media?

I, too, am troubled.

Crusoe

V.S.Naipaul, Nobel laureate in literature, once wrote that the future of the Caribbean was Haiti. He was not being complimentary to either Haiti or the Caribbean. I used to argue that Barbados proved Naipaul wrong but recent events and the behaviour of those I thought knew better have shakened my confidence. I never thought that in 2011 words like dynasty, the occult, demagoguery and cult of personality would remotely be part of Barbadian public discourse!

@Ping Pong, point taken and worthily raised.

@David,

Wrong and strong does not make right, it is still wrong.

N’est pas?

I think what would be under suspicion here is the vetting process. If application where taken based on the requirement, under normal situation all application not meeting would be the first throw out. As such they want to change the law then the best solution is re-issuance of the position should be done with the change requirement to be highlighted. Thus if he is selected again they would say have pass thru a normalize vetting process and none would argue otherwise. This of course may take 1-3 months in that time change the law and gazetted it with the announcement gazetted as well. It would of course slow the process of him getting the job but it would remove some uncertainty in public perception.

Just a continuance of the government’s lack of respect for the law. Illegal dismissals and appointments. Is the ‘CEO’ at BWA legal yet? I remember many on BU trivialising the BWA matter (despite purporting to be proponents of good governance) now it seems as if decision-making irrespective of what the law states is becoming the norm.

The Democratic Labour Party Government will do what the Democratic Labour Party Government has to do.

We are not waiting on any drunken man.

My point all along is that Marston Gibson has held a license to practice law in Barbados for well in excess of 15 years. Therefore he is qualified under the law to hold the post of Chief Justice. He has also lectured in law in Barbados and other Caribbean countries for a number of years.

The Commonwealth (which forms the basis of the current objection) consists of many countries. There are 54 such countries, which include Malaysia and Rwanda (neither of which were a part of the former British Empire). However, it is being argued that it would be okay to appoint someone from any one of the 54 countries who has practiced law for 15 years. And NOT okay to appoint a Bajan born and bred whose first law degree is from the UWI. It is being argued that someone whose cultural background is widely different to our own would be qualified over and above one of our own. The logic of this position frankly escapes me completely.

Laws are made to reflect the need of the society for which they are framed. Yet it is being argued that it is okay to bring in someone whose knowledge of that society is rudimentary (if they have any such knowledge to start with), in favour of one of our own – born, raised and schooled in Barbados. That is stupidity of the very highest order.

There is, in my view, no need to change the law to ensure the appointment of Marston Gibson. He is fully qualified under the law as it stands. However, if out of an excess of caution the Government wishes to change the word “Commonwealth” to “common law”, so be it.

It is a requirement that in choosing a new CJ, the PM (David Thompson) had to consult with the Attorney General (Stuart) and the leader of the opposition (Mia Mottley). It is well known that all three agreed the appointment of Marston Gibson. Now, we have Owen Arthur, in a vain and transparent effort to create political mileage, seeking to renege on the decision by the then leader of his party and getting his yard-fowls to go along with him. A decision that will without doubt highlight the total mess that Owen Arthur’s appointee for the post when he was PM, made of the entire judiciary and its support organizations like the Registry.

It is pathetic, transparent that serves to demonstrate the level of desperation of some people. And that includes the legal profession and the judiciary who, accustomed to the non-standards of a chief justice, suddenly see their nice, safe sinecures under serious threat.

I reported some time ago that there was one case in which a judge had been sued, not for actions taken in the execution of their office, but for lack of the execution of that office. I am now able to report that this number of actions has swollen to three such actions against 3 different judges (the first being well founded, but the most recent two, in my view, being of dubious merit). Dubious merit or not, alarm bells will be ringing clearly now in the courts.

Whether the legal and judicial professions like it or not, heads are going to roll – and ABOUT HIGH TIME!

@Amused, you say ”However, if out of an excess of caution the Government wishes to change the word “Commonwealth” to “common law”, so be it.”

Come on. You know very well that changing the words Commonwealth to ‘common law’ does not address the issue. Unless you wish to change it to ‘common law as is present and with its precedents as set within the Commonwealth’.

As you know that common law is basically case law, which is quite different from the Commonwealth to the state of New York, or the USA for that matter.

Secondly, that he has held a ,license for 15 years, does not mean he has practised for the 15 years, within the Commonwealth common law i.e. utilising case law in addressing issues, case law based on British law.

Thirdly, it is not only what is done, it is how. Specific changes to significant legislation should de assessed, debated and presented clearly, not pushed through at will.

That is as much at issue as the intended change itself.

And as a lawyer, you know this too.

So, in my humble opinion, neither the form nor substance of the issue are being addressed by the intended action, in its present form.

But then, as some on here like to say IANAL (I Am Not A Lawyer).

onto that david if she did approve was she told he was qualified when they where selecting candidates.

Now before amused gets on my case. You can take an over abundance of caution to mean that it is their is belief that it is possible for the the appointment to be challenge on legal ground of not being qualified within the law as it is now, in court and the challenge upheld. You can argue that far as your understand of the law goes there is no challenge. the government action shows their could be challenge and the making steps to ensure there is no challenge.

@David

The question remains, did Mia Mottley when she was leader of the opposition agree to the appointment?
*******************
That question is moot, I don’t think Mia has to agree to any appointment, the Gov’t may “consult” with the Leader of the Opposition but it doesn’t have to follow any advice from that source
Did David Thompson agree to Simmons appointment? In the end the appointment is the Gov’t’s to make and it seems that the law will be amended to ensure all the i’s are dotted and the t’s are crossed.

@Sargeant

The question is relevant in the context of the political poppycock which is currently at large.

It would be interesting if the legal eagles were to adjudge which is more dangerous.

1. Appointing someone recently active in the executive arm of government to the Judicature or
2. Making the change as proposed to the common law requirement for the post of CJ.

@Carson C. Cadogan | January 23, 2011 at 1:41 PM
“The Democratic Labour Party Government will do what the Democratic Labour Party Government has to do. We are not waiting on any drunken man.”
**************************

Carson, you have no idea how hard I try to ignore your nonsense! You continue to propagate garbage , and my fear is that it might influence somebody, even if it is only one or two.

Also, I have no desire to sully the memory of dear departed ones, but I just believe that you should show some respect for all of our leaders, even if you disagree with them politically!

Most would recognise who that “drunken man” remark of yours refers to; it IS that same so-called “drunken man” who had to rescue this country out of staggering misery, and restore respectability and stability, on the last occasion when we allowed the DLP to “do what it had to do!”

Thankfully by God’s grace, he is alive and kicking …… he has not imbibed overwhelming amounts of VODKA (a sure trigger for deadly cancer of the pancreas) and he is ready and able to perform that same rescue mission, so desparately needed again right NOW, Queen or no Queen!

As a matter of fact, while we are speaking about liquor, may I exhort you to pay some attention to The Deputy Speaker, if you are interested in HIS health? You most certainly will not regain THAT seat in any coming election whether “By” or “General.”

Lay off the BLP Carson!!! It’s time for the real issues … like high and rising unemployment (lost jobs at 10,000 plus), steeply rising cost of living, every promise broken, poor leadership, rising crime etc. I challenge you to comment on those themes!

By the way, while we are speaking about liquor, may I exhort you to pay some attention to The Deputy Speaker, if you are interested in HIS health? You most certainly will not regain THAT seat in any coming election whether “By” or “General.”

I thank you for not getting on my case 🙂

@Sargeant

That is the point!

if the opposition has change course in mid-stream then say so and deflate the crap.

@ David

What danger? Simmons came and went and there was no danger. Marston will be a political appointment as well and the outcome the same.

For the record Malaysia was part of the British Empire.

It is a straw man argument that the objection to Mr Gibson’s appointment is that “It is being argued that someone whose cultural background is widely different to our own would be qualified over and above one of our own.”. This is fallacious if not devious. Why not say that a Barbadian trained at UWI and who has practiced in Barbados or a commonwealth country for over 15 years is superior to one who has not?

By the way I wonder if anyone remembers Justice Telford Georges who born in Dominica? He was Chief Justice of the Bahamas (1984 -1989), Tanzania (1971 -1977) and Zimbabwe. I wonder if there were arguments in any of these countries that Justice Georges was not suited to be Chief Justice since his cultural background differed from that of the country in which he was to serve. Going in the opposite direction, it is noteworthy that the outgoing Chief Justice of Belize is Dr Abdulai Conteh of Sierra Leone.

The issue is rather simple. Mr Gibson is not qualified to be Chief Justice under the present law. A more important but related issue is the manner in which judges are appointed. At this stage in our political development, the appointment of judges should be similar to that of the CCJ, that is, by way of a judicial and legal services commission and not at the discretion of the Prime Minister. Given the small size of Barbados it may be necessary to widen the choice of persons to those NOT from Barbados or even the region so as to ensure that judges who are impartial and possess the requisite skills, experience and legal knowledge are appointed. I hasten to add that I am NOT suggesting that any present member of the bench does not possess such characteristics.

“….the Sun article today which quoted Dale Marshall as agreeing to the fact the BLP courted Gibson as well for the CJ job.”

This is quite misleading and misrepresentation of what was printed. The only quote from Dale Marshall was:

“I asked him if he had any interest in returning to the Caribbean and about his future plans. I did not approach him about an appointment to the bench. I asked him about his long-term plans, not about any appointment.”