It is unfortunate that the two most recent proposals of appointment to the office of Chief Justice of Barbados would become mired in controversy – and politicised.
The better traditions of the Westminster system assume that both the individuals selected and the processes governing selection would be above politics and reproach; and while this most recent candidate is not political, the process by which he is being appointed has raised some interesting questions regarding “good governance”.
On the last occasion, former Prime Minister Owen Arthur pushed the envelope in offering the post to a sitting minister of Government, which was a variation of the general theme introduced by a previous administration that offered a judicial post to a former Attorney General.
Unlike most commentators, I do not delude myself regarding the principle of separation of powers, which is neither true nor practical in the context of contemporary politics.
The judicial arm of Government cannot realistically be completely insulated from political influence without severe negative consequences, and this was the essence of Errol Barrow’s constitutional change.
If any arm of the Government were to be completely insulated from political influence, it could easily take on an agenda of its own, which might conflict with that of the Government of the day which reflects the public’s “will”.
There is a fine line between necessary judicial independence and judicial self-determination, which leaves the judiciary open to hijack by forces that might not necessarily have the public’s best interest in mind. In the final analysis judges have to be appointed and removed by some entity and the public’s interest is best secured if such initiatives are taken by a political functionary as is the case in most modern nations.
The appointment of Mr Marston Gibson is very different from that of Sir Frederick Smith or Sir David Simmons, since he neither is or was a politician in Barbados, nor does he appear to have political affiliations to either party. In different circumstances the discussion could revolve around the propriety of appointing a person who appears to be more of an academic than a practitioner of the law to the Bench.
If this were the central argument we would be debating the merits and demerits of appointing Gibson versus another prospective candidate, Professor Andrew Burgess who was formerly dean of the Faculty of Law.
The propriety of appointing an academic to the Bench or the post of Chief Justice is not in question here, and this should be seen as progress in Barbados. To my mind, the propriety of appointing a person who has practised or taught law outside of Barbados for the vast majority of time that he was an attorney represents a similar development that speaks positively to our maturity as a nation.
There was a time when our concept of nationhood was such that we considered it necessary to reserve certain positions for people who lived and worked their entire life here.
However, these concepts are antiquated and need to be revisited. Today we live in a world where governance in all its manifestations is becoming more global and unified, which means that judicial principles are less localised and more internationalised.
International best practice
It is therefore an entirely good thing for us to draw on international best practice in the process of governance and the administration of the judiciary.
It is interesting that in Barbados we continue to debate the propriety of people like Gibson being involved in our governance, while we export our expertise to foreign shores where it is apparently embraced. Hence we are proud of the fact that several years ago Sir Frederick was non-resident chief justice of the Turks & Caicos Islands, and now celebrate the role of Justice Francis Belle in the Organisation of Eastern Caribbean States.
These are but a few relevant examples of instances in which Barbados has exported legal talent and should demonstrate that we no longer need to feel threatened by the likes of Gibson, who is unquestionably a well qualified Barbadian.
In the final analysis, the central issue for this author is one of “optics“ and my concerns are equally relevant to the actions of Prime Ministers Arthur and Freundel Stuart.
It is generally accepted that the Government should, where possible, legislate in a way that speaks to the future and not the past. Moreover, a Government’s legislation should generally not speak to any single individual or seek to change his or her situation.
Political practitioners need to appreciate the limitations of these theories and one relevant example would be the legislative actions taken by the Arthur administration to retroactively amend the Parliamentary Pensions Act to facilitate specific people who were deemed ineligible for well deserved pensions because the Sandiford administration collapsed two years early.
In such instances the illogical of our legislative position was highlighted, and it would be unwise to cling to laws that originated at a different time under different circumstances.
In a perfect world our legislators would amend laws in anticipation of such peculiar circumstances. However, legislators here and elsewhere seldom have this luxury, and it is for this reason that I wish Prime Minister Stuart well in his quest to fill the post of Chief Justice.
Peter W. Wickham is a political consultant and a director of Caribbean Development Research Services (CADRES).