Submitted by Caswell Franklyn
I have always said, rather simplistically, that since the language of instruction in Barbados is English: in the end, no matter which subject we are studying, we are really doing English comprehension. Rightly or wrongly, I have adopted that approach and so far it has worked for me.
In the Midweek Nation of March 23, 2011 and on this blog, I wrote a piece where I questioned whether the recent amendment to the Supreme Court of Judicature Act was sufficient to enable Mr. Marston Gibson to be appointed to the post of Chief Justice of Barbados.
In my opinion, the amendment was crafted to ensure that Mr. Gibson’s experience in New York would go toward his qualification for the post. It stated, in part, that the person should have practiced in the Commonwealth or a common law jurisdiction for fifteen years. I argued that for the purposes of Barbados law, New York is not a common law jurisdiction and he would therefore not qualify. I found support for my position in the Interpretation Act, Chapter 1 of the laws of Barbados.
Two persons have written, in the newspapers, making reference to my interpretation. Writing in the Midweek Nation of March 30, 2011, my friend and teacher, Cecil McCarthy, offered a differing more inclusive interpretation. Even so, without more, I am clinging to my interpretation. In the end if I am proven to be incorrect, you can only blame Mr. McCarthy because he would not have done a good enough job teaching me law at the Community College.
In his column, in the Advocate of March 27, 2011, Mr. Jeff Cumberbatch rather condescendingly referred to me as a “learned layman” and attempted, and I must emphasise attempted, to clarify the issue. However, after reading his reasoning I must say that he left the issue as clear as mud. He wrote,
“The legislation, as amended, now speaks to the ‘common law’, unfortunately without expressly defining it. I saw some correspondence last week from ‘a learned layman’, which points to the definition provided under the Interpretation Act as ‘the common law of England’. Of course, this does not mean the substantive common law of that jurisdiction; for in many respects that does not obtain here…”
I was quite surprised to learn that the common law of England in many respects does not even obtain here. That differs from what Mr. McCarthy and others taught me at the Barbados Community College. Recalling from memory, because I have long lost my notes, my teachers taught me that the common law decisions of English courts would bind our courts. However, since the facts of any two cases were never exactly alike, so in order to avoid injustice or hardship the judge would find some material difference from the earlier case and refuse to lay down the law as had been laid down previously. The judge is said to be distinguishing the present case from the ruling that was given in the previous one.
To my mind that does not mean that the English common law precedent no longer applied here in many respects. While I hate to argue law with a teacher of law: his interpretation defies common sense reasoning, or at least my reasoning. Further, he went on to write that the “reference might have been intended to the system of common law practiced in England…”
I find that to be too imprecise for a teacher of law. My teachers at the community college taught me that words in a statute are given their literal meaning. Only where that meaning would produce an absurdity would you try to find out what was the intent what was the intent of Parliament.
I daresay that the words of the amendment are crystal clear, and should be given their ordinary meaning and not some legal gymnastics to produce Government’s desired result. I wish to say that I do not know Mr. Gibson nor am I holding a brief for anyone. My interest stems from the manner in which Government amended the law to accommodate one man. I find it particularly offensive and I know that I have the right to freedom of expression under the Constitution, and I choose to express.
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