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.