CURIOUS JUDICIAL DEVELOPMENTS

BY RICKEY SINGH Observer Caribbean correspondent

Source: Jamaica Observer

Friday, January 08, 2010

There is a growing public concern in Barbados over the surprising disclosure last weekend of Chief Justice Sir David Simmons' decision to retire on his 70th birthday, this coming April 28.

There has been no official response as yet why Sir David, who became Barbados' 12th Chief Justice on January 1, 2002, was not given the 'conventional nod', accorded his immediate post-independence predecessors, to remain in office for an additional two years -- until age 72.

Sir David himself has declined to confirm or deny that he tendered his retirement letter last week to Governor General Sir Clifford Husbands, after failing to receive an official communication for a constitutionally permissible two-year extension he was encouraged to seek.

A former attorney general and minister of home affairs of the previous Barbados Labour Party administration of then Prime Minister Owen Arthur, Sir David told this writer: "My retirement is irrevocable; and I do not wish to bring the judiciary of Barbados into any controversy... I have noted, as an independent observer, the controversies that have involved the judiciary of Trinidad and Tobago and I certainly do not wish that to happen here."

Nevertheless, Sir David's impending retirement as a consequence of the departure from the convention of extending the tenure of a chief justice on reaching the retirement age of 70, is likely to have more than ripple effects in local and regional judicial circles familiar with his varied performances over some 32 years in the legal profession and public life.

Moreso, perhaps, in Trinidad and Tobago where the distinguished Barbadian jurist has long been expected to be a likely candidate to succeed the distinguished Trinidadian, Michael de la Bastide, as president of the Port-of-Spain-based Caribbean Court of Justice (CCJ).

Sir David had played significant roles in the establishment and inauguration of the CCJ.

The president of the Barbados Bar Association, Queen's Counsel Leslie Haynes, has told this correspondent that while the media report on Sir David's retirement came as quite a surprise, he and his colleagues would first have to acquaint themselves with the circumstances before offering a public comment.

But two lawyers often in the news, Andrew Pilgrim and Robert 'Bobby' Clarke, had no reservations in separately questioning the failure to extend Sir David's tenure and in declaring why he deserves to remain as chief justice for another two years.

Of more relevance and significance, however, was the editorial in Tuesday's Daily Nation titled 'Saluting Sir David's Services'.

Accompanied by a cartoon caricaturing the chief justice toasting "here's to my retirement", the editorial noted that his retirement announcement would have come as a suprise for those who have been expecting him to remain for an extended two years.

The editorial went on to observe that whatever may be the factor, or factors that contributed to Sir David's decision to retire, his stepping down "after a most illustrious career in the legal profession, certainly opens an opportunity for his valuable experience to be available to the Caribbean Court of Justice..."

And there, perhaps, lies the rub. Certainly for Caricom's political directorate involved in the decision-making process of approving who gets the nod as CCJ president, based on recommendations from the Regional Judiciary and Legal Services Commission (RJLSC).

The presidency is the sole CCJ appointment in which Caricom leaders are involved. When the CCJ was inaugurated in April 2005 in Port-of-Spain, de la Bastide became its first president under employment provisions that point to a retirement age at 72.

However, by 2007, according to Tuesday's Nation editorial, the provisions were amended to increase the retirement age to 75. The terms of employment of president de la Bastide were also varied "to permit him to remain in office until the age of 75.

"But", added the editorial, "this decision by the RJLSC was done WITHOUT (my emphasis) involvement of the Heads of Government."

I have been reliably informed that, without prejudice, and cognisant of the competence and integrity of President de la Bastide, inquiries are now to be made, at Heads of Government level, about the processes that resulted in the extension of the incumbent president's tenure for retirement at age 75.

It would be interesting to learn which, if any, comes first -- an official explanation on the non-extension of Sir David's tenure as chief justice of Barbados; or, the change in the age of retirement of president of the CCJ from 72 to 75 that facilitated the distinguished de la Bastide.