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NEW YORK NEW YORK: Changing the law

Tony Best

NEW YORK NEW YORK: Changing the law

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Turn back the hands of the clock. It’s the mid-1960s and efforts to create a Little Eight Federation involving Barbados and its Eastern Caribbean neighbours are faltering.
A death rattle is audible, in the wake of the collapse of the West Indies Federation at a time when Barbados’ independence is on the horizon.
It’s a time too when the country needs a Chief Justice and Errol Barrow, the Premier soon to become Prime Minister, reaches out to an overseas Bajan, William Douglas, a puisne judge in Jamaica, who goes on to serve with distinction as Chief Justice.
Now, fast forward the time to 2011 and again Barbados is searching for a Chief Justice. The current Government led first by David Thompson and now Freundel Stuart, decides Marston Gibson, a Rhodes scholar and a former law lecturer at the Cave Hill Campus is the person for the important post.
Fair enough. But there is a hitch: he has spent too little time practising or teaching law in a Commonwealth jurisdiction and therefore doesn’t meet a purely technical requirement.
Except for that legal hitch, Gibson, a judicial referee on Long Island in New York who taught several prime ministers, judges, attorneys general and other legal luminaries studying at the University of the West Indies, is considered eminently qualified.
The obvious solution is to change the law, which the Government intends to do. It is that sensible solution which has triggered a raging debate, especially in legal and political circles.
As one level-headed former judge put it the other day: “it has brought the wood ants out of the woodwork”.
Some critics of the Government’s plans warn against changing a law to suit a single person.
Others have asked: why go overseas to bring back a Bajan when the country has several judges now on the bench who can or should be appointed?
A third group sees the issue in political terms, an opportunity to score points at the Stuart administration’s expense.
But there are some factors, a set of core principles which should be considered. One is, does the language of the law meet the purpose for which it was intended?
In this case, it doesn’t. It is doubtful that Barbados ever intended to allow attorneys from Rwanda, Cameroon, Mozambique, Brunei and the Sharia courts in Pakistan to become judges.
They couldn’t have foreseen the dramatic changes in the Commonwealth that have occurred.
Secondly, there is the issue of correcting mischief. The existing law has certainly spawned one by barring United States attorneys and professors who have not practised or taught in a Commonwealth country.
Next is discrimination against a whole class of Bajans. The act certainly discriminates against Bajans who have served with distinction in the United States, a common law country but not in a Commonwealth jurisdiction.
Imagine the highly unlikely situation in which Eric Holder Jr the United States Attorney General, whose parents are Barbadians and who has a court complex in St Joseph named for him being told that he wouldn’t qualify in Barbados because he didn’t practice in the Commonwealth.
How about two eminent law professors in the United States, Stephen Leacock and Elwin Griffith, both of whom were born and raised in Barbados and taught at Cave Hill? The same barriers blocking Gibson would stand in their way.
Interestingly, Bajan attorneys trained at the UWI and admitted to practice at home, are eligible to take the New York State Bar exams without further training  and if they are successful can practise immediately. That’s because Barbados is a common law country.
That brings us to the broad question of Bajans living abroad. Some people have suggested that Barbados shouldn’t reach into the diaspora for a Chief Justice. But that reflects a narrow mindset that goes beyond the current issue.
It’s a fact Gibson would be a beneficiary of any change in the law. But he wouldn’t be the only one.
Scores of others are currently being discriminated against.
Yes, special pleadings make bad law. But that’s not what’s happening here. With or without Gibson the law should be changed.