The appointment of a new Chief Justice for Barbados has caused controversy and created sharp divide in political and legal circles.
Both the ruling Democratic Labour Party and the Opposition Barbados Labour Party have not seen eye to eye on the recent amendment to the Supreme Court of Judicature Act that would facilitate eminent Barbadian jurist Marston Gibson assuming the position in the very near future. Some members of the Barbados Bar Association have also expressed reservations about the adjustment to the qualifications that would allow Gibson, who practises in the United States as opposed to the Commonwealth, to be eligible for appointment.
NATION correspondent in New York Tony Best sat down with Gibson late last week to get his reaction to the controversy, as well as what would be his plans for the court system when he takes up the post.
Q: In recent weeks we have heard quite a lot about Marston Gibson, the next Chief Justice. But who is Marston Gibson?
Gibson: I am Barbadian-born. I was raised in a house where my grandparents also lived. My grandfather Winston Sealy was a police officer, a writ server who lived there. He was widely known as “Kong” Sealy. He was more of a disciplinarian, not in the sense that he was into punishment.
I don’t think my grandfather flogged any of us more than once. He was not a spare-the-road, spoil-the-child person, but he was more a person who would show you where the right path was rather than to threaten you.
You learned that sense of discipline and it has stayed with me. It helps to define who I am. He was a member of the vestry at St Ambrose Anglican Church, a guiding pillar of that church and was a potent influence in my life.
My other grandfather Wilfred Gibson was also a policeman. He died before I was born, but from all I have been told he had a similar sense of service and the idea that if you took on an obligation, you had to finish it, because if you weren’t planning to finish it, you shouldn’t take it on in the first place.
And that’s how I have approached every task and how I would approach the position of Chief Justice of Barbados.
Q: What’s your assessment of the Barbados court system?
Gibson: From where I sit the court system in Barbados structurally is sound. It is a great court system. We are very fortunate that Sir David Simmons has pioneered the construction of a new home for the court. It has a lot of modern technology.
We have technology in Barbados that is superior to the building in which I work now in Nassau County in New York. Barbadians should be proud that we are way ahead of the Supreme Court of New York in Nassau County.
[But] if you have the technology and you are not using it, then that is a problem. It has in it all of the elements for success, but we are not using any of those themes.
From an administrative perspective, it does not appear that anyone has taken an affirmative, administrative step to looking at the judges’ caseloads and seeing how best to manage them so that the judges can manage their time more effectively and get out their decisions.
The result is that we have tardiness in our decisions. What bothers me is that there doesn’t appear to be the level of embarrassment or concern I have over tardiness. I am not suggesting that anything can be solved immediately, but we certainly need to talk about that.
The same is true in the criminal sphere. I think the magistrates are doing a magnificent job and, like all magistrates, they are overburdened, have a lot of work to do. My approach is going to be to import a level of efficiency into a system that already has the ability to be efficient.
Q: You mentioned the magistrates, but what about the judges?
Gibson: We have a very competent, well-trained group of judges. I feel towards them the same way I feel about the magistrates. They are overburdened and need help. They need administrative help. I suggest that both at the magistrates’ and High Court levels we have a reporting system where judges or their clerks get to report at regular intervals, whether it is every 60 or 90 days.
If you have a regular reporting or administrative system for reporting, it means every 60 or 90 days a judge or magistrate has to look at the list of cases outstanding and make a decision as to how he or she would go through the list and prune out the cases that you can get rid of very quickly.
There are cases which are bothersome no matter how much intellectual energy you lavish on them. It is that regular reporting that allows a judge to go to the administrative or chief judge and say: “I am having some difficulty, I need assistance” to ensure that they get it. I am not saying I am the only one who can do this job, but I believe I come with a different perspective based on the last 23 years of experience in the New York court system.
Q: In the amendment to the Supreme Court of Judicature Act, a change was made to allow attorneys from a common law jurisdiction such as the United States. But is the United States really a common law jurisdiction?
Gibson: Yes, no doubt about that. There has been a bit of misconception, rather than a blatant attempt to mislead the public of Barbados during the discussion about the amendment. The dean of the Faculty of Law at Cave Hill of the University of the West Indies, Senator Velma Newton, told the [Upper] Chamber on Wednesday that the United States is a common law jurisdiction. There isn’t any doubt about that.
The common law system has as its hallmark the primacy of the courts. Basically, we follow the English idea that the courts declare what the law is. Because of that, central to the operation of every common law jurisdiction is the doctrine of precedent, which means courts are bound by the decisions of higher courts and sometimes they are bound by their own prior decisions.
To the extent that that is a description of a common system, the United States is a common law system.
Q: Why are you going back to Barbados?
Gibson: I see the court system in need of some change. Recently Sir Roy Marshall [a legal luminary at home and in Britain] made some serious criticisms of our court system. For me, job No. 1 is to become familiar with what is happening on the ground. I need to get to know the terrain, to know the judges with whom I will work, to know the clerical staff, the different officials, persons with authority, the Registrar and the Deputy Registrar, some of these people I have taught, but still I need to know where their jurisdictions interact, how it will impact on me.
The only way I can determine whether the ideas which I have will work is my knowing first the context in which these ideas are going to be suggested and, if accepted, are going to be applied. I then have to assess my ideas and how I would present them.
Q: Were you caught off guard by the controversy over your appointment?
Gibson: I was not surprised that there was some political discussion, but I was surprised at the level of ferocity. I knew that the law had to be changed and that it would have to be done soon, perhaps before the by-election in St John.
But a lot of what drove the debate can be attributed to politics, misperception and misinformation, a tit-for-tat situation. I understand that. But it is unfortunate.
But I have to leapfrog over much of what was said and move on. Senator Newton said in the debate in the Senate that the amendment would widen the pool for the judiciary or, as Sir Roy said, look to get some of the brightest and the best for the judiciary wherever they are located.
Q: Sir Roy used the word embarrassment to describe what’s happening in the courts. Do you share that embarrassment?
Gibson: Yes I do. During the debate in the House of Assembly, Ms Mia Mottley said we needed to do something with the judicial system because the Caribbean Court of Justice (CCJ) had criticized us twice. I think she may not have looked at the decisions as close as she could have. The judges of the CCJ have criticized us four times.
The very first case that went from Barbados to the Caribbean Court immediately after it was inaugurated was the Mirchandani case. Our courts were criticized for tardiness. The next time we were criticized was a case called Reid vs Reid. It was important to me because it involved the recognition of a foreign judgment which was entered into by the Supreme Court of Massachusetts. It dealt with an area of law that I like – conflict of laws, private international law. But it also dealt with a matrimonial judgment.
I spent seven years in Nassau County doing exclusively matrimonial law. In that case (before the CCJ) the court said it took six to seven years between the first instance and the Court of Appeal decisions to get the matter to the Caribbean Court.
The third time was a case called Winton Campbell vs Attorney-General. It had to do with the issue of whether or not a senior civil servant whose position had been made redundant was entitled to damages, pension and so on. The most important thing was that the first instance the judge took three-and-a-half years to write his decision and the Court of Appeal took four-and-a-half years to write its decision.
The last case was Frank Errol Gibson v Attorney General. When I read the decision I was embarrassed over the time Gibson had sat on remand. Why my embarrassment? I know where Barbados was. It troubles me we have similar constitutional provisions that exist in the United States in the federal constitution and in New York State, the idea that people should be given a trial within a reasonable time and to sit on remand for years is not a reasonable time.
I share Sir Roy’s embarrassment because we know what Barbados can do and how people should get their constitutional due.
Q: How do you feel about the CCJ?
Gibson: I was a supporter of the idea of having a Caribbean Court of Justice from 1972 when I was a student. I believe it is the way we develop a Caribbean jurisprudence and it is a way we show our independence.
As far as I am concerned, you can’t be independent if you don’t think that the people you have educated, are mature enough when they get on the for you. My question will always be: if we are not sure about decisions which legally trained minds will make, why stop there?
We should be equally diffident and unsure about the executive and legislative minds that run our economies. The CCJ is where we should have been a long time ago. We have been very fortunate to have the brilliant minds on that court that we have. They don’t come better.
Q: What’s your view of attorneys in Barbados? They seem to have a terrible reputation.
Gibson: The public of Barbados is very suspicious that when they complain about an attorney, the complaint goes into a box and is filed somewhere and nothing happens. Sir Roy in his comments said that self-policing of the legal profession has not worked in Barbados.
The truth is that out of 798 attorneys in Barbados, I don’t believe the people of whom these complaints are being made are more than eight or ten. The vast majority of lawyers in Barbados are professional, efficient and do their jobs. The problem is that one bad apple does spoil the whole bunch.
Q: What’s your view of attorneys in Barbados? They seem to have a terrible reputation.
Gibson: The public of Barbados is very suspicious that when they complain about an attorney, the complaint goes into a box and is filed somewhere and nothing happens. Sir Roy in his comments said that self-policing of the legal profession has not worked in Barbados.The truth is that out of 798 attorneys in Barbados, I don’t believe the people of whom these complaints are being made are more than eight or ten. The vast majority of lawyers in Barbados are professional, efficient and do their jobs. The problem is that one bad apple does spoil the whole bunch.
Q: When the controversy arose did you ever think of having your name withdrawn?
Gibson: Yes, rather briefly last December. But I soon remembered the promise I made to David Thompson, the Prime Minister, in our last discussion in August when he called and asked me if I was still interested in returning home and I gave him a commitment.
If I had withdrawn in December, I would not have kept my word to him or to the current Prime Minister Freundel Stuart. As my grandfather [Kong Sealy] drilled in me, don’t take on a responsibility if you can’t finish it.
