A Year Has Passed, What Is The Delay In Appointing The Chief Justice?

Caswell Franklyn, Head of Unity Workers Union

The office of Chief Justice became vacant on April 28, 2010. Since that date the duties of that office have been performed by an acting Chief Justice. In the interim Government took steps to fill the post by going as far as making legislative changes to the qualification requirements, on March 20th at 12:35 a.m. in order to accommodate their preferred candidate. It appeared that the Government was moving with all deliberate speed to fill the vacancy as though there was some deadline that they had to meet. However, with all the fancy manoeuvring the post remains vacant.

It is as though no one in the Administration realises that this state of affairs holds Barbados up to ridicule internationally. Government should never allow a situation where an acting judge would be at the mercy of the Executive for a permanent appointment for such a prolonged period, before a substantive appointment is made. Just imagine a situation where a plaintiff has a case against the government before an acting judge. The judge should never be in a position where he has at the back of his mind any conflict about giving a judgement, against the Government, and not finally getting the permanent appointment. In this case, Barbados is fortunate and should be grateful that all the persons who are acting in this present debacle are of the highest calibre. The quality of the actors notwithstanding this situation is untenable.

Government is doing this country a disservice of the highest order by not filling the vacancy after one year, even though, they have identified a candidate and apparently passed the relevant amendments to the Supreme Court of Judicature Act, so that their preferred candidate could be appointed. That procedure reeks and I hope that the delay is as a result of Government coming to its senses. The question that must be on the minds of all right thinking Barbadians should be, what is the reason for the delay?

Notwithstanding the embarrassing state of the Judiciary and if he foregoing was not bad enough: there is another consideration that must be taken into account. Section 13 (11) of the Public Service Act states:

No established office in the Public service shall be allowed to remain vacant for a period of more than one year except

(a) permission to allow the vacancy is granted by the Governor-General on the advice of the Service Commission; or

(b) the office has been frozen by the Minister.

The country has not been informed of any action by the Governor-General or the Minister to allow this serious omission.

So far, Government has been able to blame all their shortcomings on the global recession. In this case that excuse is not available. They must come forward and tell the country their reasons, if any, for the delay in appointing the Chief Justice: or is this yet another example of Government ignoring the law when it suits them?

26 thoughts on “A Year Has Passed, What Is The Delay In Appointing The Chief Justice?

  1. @Caswell

    Your concern about the length of time taken to fill the CJ vacancy is shared by all even if not for the same reasons you have indicated. The point about the acting judge being placed in a compromising position, isn’t it moot in this case because Sherman Moore has already indicated his desire to retire?

  2. Is a judge a member of the public service? Check the Constitution. But I do agree with you! What is happening?

  3. Mr. Moore is not the only person acting because of this situation. I know him and I can assure you, acting or not, such considerations would not influence him. I am speaking of the principle involved.

  4. Jack Spratt
    Read the Public Service Act, the Judicial and Legal Service Commission is one of the bodies regulated by that Act.

  5. to caswell- your points are well taken. i hope that messrs mccarthy and cumberbatch noted too. i still amdumbfounded about their inabilty/reluctance to explainin simple language to a non learned layman like me whether the amendments to the judicature act to accomodate mr marston’s appointment have achieved the desired result or has compounded the issue makung your stance correct; or is it that their hands are tied in some form or fashion by some political plum. and then these same lawyers rant and rave when ordinary folk like me express our lack of trust in the cariibean court of justice. what else do persons of your ilk leave us to do. leaders need to think on these things.

  6. What prevents a lawyer from the US or other jurisdiction practicing in Barbados?

    Is it a matter of having credentials examined and certified and issuing a licence to practice?

    Who does the examining and licensing?

    Is it the Bar Association?

    Does the recent change in the law make it easier for lawyers from the US to be heard in Court in Barbados?

  7. Caswell,

    I have re-read the Public Service Act. May you or David cite for the readers the full meaning of “public service” under that Act…see section 2 of the Act.

  8. Jack Spratt
    What is your point, the definition of Public Service in Section 2 of the Public Service Act is as follows:

    “Public Service” or “Service” means the service of the Crown in a civil capacity in respect of the Government of Barbados but shall not be construed as including service in

    (a) the office of Governor-General, Prime Minister or other Minister, Parliamentary Secretary, Leader of the Opposition, President, Deputy President or member of the Senate, Speaker, Deputy Speaker, or member of the House of Assembly or member of the Privy Council;

    (b) the office of a member of the Judicial and Legal Service Commission, the Public Service Commission or the Police Service Commission;

    (c) the office of a member or any holder of an office of any board, committee or other similar body (whether incorporated or not) established by any law in force in Barbados; or

    (d) except as otherwise provided in the Constitution, the office of a Judge;

  9. My point is that a judge is not in the public service and thus not subject to the provisions of the Act, including section 13(11).

  10. No Chief Justice
    No Deputy Prime Minister
    Freundel Stuart only
    speaking after being goaded

    What de France going on in Bim ???

  11. @Jack Spratt, Technicalities and pedantics aside, the principle applies, Caswell has a point.


    Very interesting question. If our CJ’s experience (civil only) exists in the US, how can we now deny a lawyer from the US a license to practice.

    Yes, some will rush to legislation, but is that not ignoring ‘substance over form’ and placing one rule for the Meades and another for the Persians???

    The whole thing is a train wreck waiting to happen.

  12. Jack Spratt
    You are correct: I was mistaken Section 13 (11) does not apply to judges.
    All that means is that the Government can take 10 years to fill the post of Chief Justice. My original point remains though, this situation is highly undesirable. It looks bad.

  13. There seems to be more in this appointment than what is coming to the fore, could it be that Mr Gibson was rewfused the offered after consideration and the government is begging him to change his mind to save them face? This legislation was rushed through parliament in a frantic manner and I thought something was wrong, I thought it was because the acting C.J tenure was closing and they wanted to have this gentleman in place ASAP. However, a considerable amount of time has passed and nothing has been said about the appointment, not even in the P.M recent “interview, Something wrong. This has been one of the DLP’s downfalls, communications, too much is left for the public to question and in many cases demand an explanation, it shows either a weakness in the administration or arrogance.

  14. The delay in Mr.Gibson taking up the appointment does not augur well for improvement in the administration of justice in Barbados.The Caribbean Court of Justice has already remarked upon the unreasonable and unjustifiable delay in matters passing through the legal system in Barbados.We are only validating the CCJ’s conclusion.The current situation raises the question of the likelihood of meaningful change under Mr.Gibson.Let us not forget that he has already gone on record to the effect that he believes that there are only 8 to 10 lawyers of questionable ethical behaviour and that the system is basically sound. Are we not expecting too much ?Will things REALLY CHANGE if he takes up the post next month or next year ?

  15. You can’t make a silk purse out of a sow’s ear, similarly, you can’t make a chief justice out of Mr. Gibson. He is not suited. Just watch his behaviour, he has not even been appointed, but you could see him in the newspaper posing with a gavel and giving interviews. He behaved like a politician canvassing for votes, not like the person who was supposed to take up the dignified office of Chief Justice.

    • This CJ matter is getting ridiculous now. It seems like ac stated the DLP is opening it itself needlessly to criticism at a time when it doesn’t take much.

  16. it s frustratingto see how on some issues this gvernment moves at a snails space while the opposition grabs the ball and runs down field in scoring position, This government needs to realise that we are in the fourth quarterof thisgame and the oppostion is going to pull out every stop to win .This CJ matter shouldhavebeen closed by now not left out there dangle leaving another perception in the public mind that thisgovernment is wishy washy or doesn’ know wha it is doing When peception takes root in peoples mind it is very hard to change .If this trend continues the DLPwouldfind itself in the fight of its poitical life at winning the next election. That is my perception.

  17. There will be no political fallout from the delay in appointing Gibson.
    Bajans have grown accustomed to waiting. Wunna see the story of the little boy going to school for the first time at 9 years old?

    Non partisan or “undecided” voters are going to vote based on the state of the Barbados economy on election day.

  18. Hants

    I am a non partisan voter and as I have always said, I will be voting the current lot out come election time.

    The only way I will not do this is if the alternative is more useless in which case I will vote DLP and the DLP member in my constituency will get my vote.

    The economy does not enter my thinking when I vote.

    As I have said before, 28 or 30 people sitting down in a room do not determine the well being of the economy.

    Not many if any have any record of actually making a business work.

    This is determined by the other 270,000 odd Bajans who actually make the economy work.

    …. that is not to say that the 28 or 30 persons cannot harm the economy, … in fact I would say some have done more harm than any Category 5 hurricane could do.

    ….. oh for a third party or some believable independents!!!

  19. Slightly off the topic, reports reaching the newsroom indicate that one of the late P.M David Thompson’s daughters will be contesting the St.John’s seat instead of her mother. If this is true, then if/when she wins that would make her the youngest person to become a member of Parliament, plus this would fullfill the request of David for the Thompson dynasty to come to being. I await the unfolding of this scenario. Remember, this was humored in the late St. John’s by-election and it was deemed untrue, the recieving in membership of the oldest two girls into the party recently is the ball being put in motion, as the DLP prepare for the general elections next year.

  20. Voting what!

    Sir Frederick Smith is quoted in the paper as wanting a republic.

    I second that and it will save money to have one President than 30 Parliamentarians.

    I hope that the RT Excellent Julian Hunte (not the cricket board johhny), will be the first President.

    I will vote for him ANY DAY.

    At least he has ideas and would be trustworthy with the money.

    Julian Hunte for Pres!!!

  21. @John.
    Interesting you mention 3rd party.
    Let’s see what happens here in Canada on Monday night.

    @The Scout,
    reports also reaching the newsroom that a BU blogger is returning to Barbados in August to start preparations to run in the next election.

  22. I found it passing strange that a question of the appointment of a CJ was posed to the PM by Rosemary Alleyne in all of 90 minutes he had to pontificate.

    I am hearing from my sources that Mr Gibson is having difficulty with the thought of giving up his American citizenship with all of the attending privileges of having an American passport.

  23. After refusing to extend Sir David Simmons’ appointment for the possible two years, this government is looking more than a bit silly that they have failed to fill the post successfully thus far.

    If Mr.Gibson has changed his mind, the egg to be wiped off faces will be much indeed.

    Wonder how the spin doctors will present it?

  24. Refusing to extend Sir David Simmons’ contract was done out of pure spite and venom by the dead king.

    He could have at least extended it for a year bearing in mind the legalities to get another CJ in place. Now the Dems look petty and silly.

    Another big fumble!

  25. Scout,
    If it turns out to be true that Mara was only a seat warmer, the Dems are going to look so incompetent having denied that the dead king left instructions on a line of succession. We will see how educated the St John people are to vote for a child!

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