FOR THE RECORD – Judicial controversy
Today, I comment briefly on two high-level “leap-frogging” judicial appointments that made the news here and in England this past week.
The debate to amend the Supreme Court of Judicature Act, affecting the appointment of the Chief Justice among other things, passed our Senate last Wednesday, whereas on Thursday news broke that Mr Jonathan Sumption, QC, was to be appointed to the English Supreme Court, which has replaced the House of Lords as the final Court of Appeal.
He is being catapulted straight from the practising Bar to the highest court in the land.
Sumption’s suitability for such a “leap-frogging” appointment is his 35 years of practice at the Bar where he has enjoyed wide and huge experience and stellar success. Yet 18 months ago when he first applied (under a new transparent process) and was in line for the job, the Times reported that “his appointment was effectively blocked after concerted opposition from Court of Appeal judges backed by some Supreme Court judges”.
They reasoned he had not earned his spurs by coming through the judicial ranks, even though he was a deputy (part-time) judge.
Sumption pulled his hat out of the ring. Now, two more Supreme Court judges have reached retirement age and Sumption having reapplied, gets the nod.
In the WEEKEND NATION of March 18, Sir Roy Marshall expressed regret that “it was a sad fact that very few of Barbados’ leading lawyers had the ambition to join the Bench”, but Sumption encounters opposition because of his lack of full-time judicial experience, even though he is by consent, Britain’s leading practitioner.
Ironically, one of the judges who is retiring is Lord Collins, the “living legend” expert on private international law. He was recruited (unusually) from outside the practising Bar. He was a solicitor advocate, but encountered no objection since he was first appointed as a part-time judge, then a (full-time) High Court judge, later a Justice of Appeal and finally as a Lord of Appeal in the Lords (now Supreme Court).
Our law allows appointment (without prior judicial experience) directly to the Court of Appeal or even to the post of Chief Justice from outside the “courtroom” practising Bar.
As far as I know, this has not ever happened in Britain. There, some years of courtroom experience is a key factor! Here we do it differently and without debate or fuss. last year, Professor Andrew Burgess, a former dean of the Faculty of Law, was appointed a Justice of Appeal with barely a pip being squeaked!
More heat is generated, it seems, when former attorneys general are appointed as judges. But both in England and Barbados, having been an attorney general, political appointment though it may be, is traditionally regarded as a springboard for a top judgeship and often for the post of Chief Justice.
So that there was nothing wrong in principle nor in practice with the appointment of former Attorneys General Sir Frederick Smith and George Moe as Justices of Appeal in the 1990s. Neither was there any injury to our constitutional arrangements in law or principle when David Simmons, QC, an outstanding Attorney General, was appointed Chief Justice. Nor when Sir Conrad Reeves was appointed Chief Justice in 1886 and had to resign as Attorney General to take up the post.
But these controversies whether at home or abroad bring the process of appointment under scrutiny. Former Leader of the Opposition Mia Mottley disclosed in the debate that the consultation letter sent to her did not include a curriculum vitae. That is surprising and should be changed.
In our situation, the Prime Minister chooses the appointee, consults with the Leader of the Opposition and recommends to the Governor General. We do not know if the Attorney General is consulted by the Prime Minister, but a Prime Minister cannot advise himself on law. So how it was not recognized earlier that the law needed to be changed?
The English judges were able to question and oppose Sumption’s appointment because they were formally consulted. Is this part of our process?
But whatever process is used, controversies may arise. Even the American system which grills nominee judges before television by a Senate Committee and is patently transparent, does not ensure that the best candidates are chosen. Perhaps no system does, but particularly as a small developing democracy, we can ill afford swirling controversies about appointments to our Supreme Court. Not if we understand the role of the judiciary.
Ezra Alleyne is an attorney-at-law and former Deputy Speaker of the House of Assembly.