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EVERYDAY LAW – Timing real issue in choosing of CJ

Cecil McCarthy

EVERYDAY LAW – Timing real issue in choosing of CJ

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SEVERAL PERSONS have asked me to write about the appointment of a Chief Justice for Barbados.  Until now I have resisted the temptation because I genuinely feel that most of the discussion has been about politics rather than law.
 The Barbados Constitution gives the Prime Minister the power to appoint a Chief Justice after consultation with the Leader of the Opposition.
 The Supreme Court of Judicature Act lays down the qualifications for the appointment.
 Prior to the amendment passed recently, the rumoured prospective appointee, Rhodes Scholar Marston Gibson, did not appear to meet the requirements of the act because his period of practice in the United States could not count since it was not done in a part of the Commonwealth.
 Interestingly, Sir Roy Marshall, in arguably the most insightful analysis of the situation, appeared to express the view that the amendment was less to do with change than with bringing clarity to the law so that its intent was clearly expressed.
 This is how Sir Roy Marshall, an eminent legal scholar, described the legal situation in a story by Wade Gibbons in the WEEKEND?NATION of  March1: “Sir Roy, who was instrumental in revising the Laws of Barbados, said the relevant section of law with its requirement of 15 years’ legal service in “some part of the Commonwealth” had been seen by some as presenting an obstacle to the appointment of the “otherwise eminently qualified Barbadian”.   
Proper examination
Sir Roy, however, did note that a proper examination was required of both the interpretation of the law as written and an analysis of the pre-Independence context in which it was first written.
“The term ‘Commonwealth’ was frequently used as a reference point in legal drafting.  Referring specifically to the states which were members of that body of former British colonies was really a convenient shorthand to identify countries with a shared historical experience, and the administrative, legal and institutional structures which flowed therefrom.  It also signified a common official language, English.
“In the context of the legal profession, and the judiciary in particular, it was, in my view, almost certainly the intent of the drafters to equate service in external common law jurisdictions with service at home.  
“Regrettably the use of the more circumscribed terminology ‘some part of the Commonwealth’ may have had the unintended consequence of excluding from consideration the common law jurisdictions which co-exist within the federal structure of the United States of America.”
Beyond doubt
The amendment has sought to put the issue of Gibson’s qualification for the post of Chief Justice beyond doubt by adding the words “or common law jurisdiction” to embrace practice in the United States or more specifically in New York in the instant case.
Not surprisingly, an issue has been raised by some about the effectiveness of the amendment.
My friend and former student Caswell Franklyn penned a letter in  last week’s MIDWEEK?NATION in which he used the definition of “common law” in the Interpretation Act to conclude that since the term common law means the common law of England, Mr Gibson is not  practising in a common law jurisdiction recognized as such by the Laws of Barbados.
Others have questioned whether the US can be defined as a common law jurisdiction having regard to the fact that several civil law concepts have been incorporated into their law.  In some states aspects of the law have been codified.  
The advocates of this view regard the US as a “mixed jurisdiction” rather than a common law jurisdiction.
I wish to humbly submit that the proponents of the views above are ignoring the legislative context.
Accepting practice
The reason for accepting practice in the Commonwealth could only have been intended to recognise those countries which shared the inheritance of the English common law.
As for the term “common law jurisdiction” the 8th Edition of Black’s Law Dictionary, which was published in 2004, contains a definition. 
It defines it as: A place where the legal system derives fundamentally from the English common law system (England, the United States of Australia and other common law jurisdictions).
It is submitted that despite the presence of some elements of civil law as well as several peculiar rules and practices that are distinctly American, the jurisdictions that exist in the United States are properly regarded as common law jurisdictions. 
Shorn of all the politics, it is my view that the amendment recently passed merely captures what must have been the intent when the law was first introduced, namely to permit practice in any jurisdiction with a tradition based on the English common law to qualify for judicial appointment.
 The real issue in my view is one of timing.  Those against the appointment will always feel that it was about the appointment of one of “your own” and about “changing the law for one man”.    
Those for the amendment may ask the question: Is it ever the wrong time to do what is right?  
For sure, I look forward to welcoming the new Chief Justice and pledge my fullest support.  What is not in doubt is that the person chosen will need the unqualified support of  the Bench and Bar to deal successfully with the current challenges with respect to the administration of justice in Barbados.
Cecil McCarthy is a queen’s counsel.