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OPINION: A reaction that reeks of no justice for all

By Michael Fahy From Royal Gazette

On April 25, the Governor of Bermuda made an announcement that the next Chief Justice of Bermuda would be Narinder Hargun. This after an exhaustive process that began when the post was advertised locally and internationally starting on December 20, 2017 — a day after Chief Justice Ian Kawaley announced his resignation.

The advertisement posted required the following:

Applicants should be qualified under section 5 of the Supreme Court Act 1905, as amended. A sound knowledge of all the main branches of the law is a minimum requirement. Specialist knowledge of at least one of the main branches of the law is highly desirable. Experience of the culture of Bermuda, its courts and legal system would be an advantage. Applicants will be expected to demonstrate the qualities of a modern professional judge and to promote the confidence of litigants and the public in the judiciary.

The selection process will recognise the importance of:

• Selecting candidates solely on merit

• Selecting only people of good character

• The need to encourage diversity in the persons considered for appointment

The Governor, who happens to be a distinguished lawyer, is responsible under the Bermuda Constitution for appointing the judiciary. However, he is required to consult with the Premier, who in turn must consult with the Leader of the Opposition before a decision is made.

As part of that process, and to avoid the type of controversy that arose when Sir Richard Ground was appointed Chief Justice in 2003, the Governor essentially delegates the selection process to the Judicial and Legal Services Committee and then takes that recommendation to the Premier.

According to the Judiciary’s Annual Report 2018, the committee is chaired by Sir Scott Baker, president of the Court of Appeal, and comprises, ex officio, the Chief Justice and the president of the Bermuda Bar Association. Other members include a former president of the United Nations Special Tribunal for Lebanon, and Justice of the Courts of Appeal of New Zealand and Samoa, former Ombudsman Arlene Brock, Martha Dismont, the executive director of Family Centre, the Chief Justice of Prince Edward Islands and the judicial member of Bermuda’s Boundaries Commission. It is fair to say that this judicial committee represents a fair cross-section of both the legal community and the local community.

Based on this open and transparent process, and based on a recommendation from the said judicial committee, Narinder Hargun, a Bermudian by status, was selected by the Governor.

Sounds fair, right?

Sadly, according to the Premier, it is not. He says the selection is an “affront” and that the process “cannot be moulded to reflect their [the electorate’s] will through the existing consultative process”.

Consultation should clearly equate to a dictatorial process in the eyes of the Premier.

The Premier’s other remarks are rather sinister in relation to the appointment of Hargun when he says: “We were elected to represent the people of Bermuda and to bring meaningful change to this country. The views we express are founded in the convincing mandate to govern which was given to us by an overwhelming majority of the people.”

What exactly does that mean?

Does that mean that since there was an election result of 24-12 the Premier believes he has the right to ignore the constitutional process? Does the Premier think it gives him the right to choose whomever he wishes to be the Chief Justice? Does it mean that despite first-class jurists giving a recommendation, the Premier knows best? I wonder how the other candidates feel about these remarks. I doubt that they would want to be aligned with them.

So why is the Premier so outraged? An eminent panel of jurists made a recommendation that Hargun is qualified and is of outstanding character. And, given the mandate that candidates should be diverse, his ethnicity surely fulfils that requirement, too.

Is the Premier in fact so outraged because Hargun happened to be counsel for the Commission of Inquiry? Is it because Hargun is not a born Bermudian? Is it because Hargun is not black? Is it because Hargun is not a black Bermudian? Is it because of all of these?

Perhaps history will assist. Way back when Alex Scott was premier, he was just as outraged as the present premier, when the governor of the day selected the late Sir Richard as the Chief Justice instead of Justice Norma Wade-Miller. In fact, Scott said at the time that the way Britain selected the top judge was “a return to a colonial model which we thought had been relegated to history”. Scott had very publicly opposed the appointment on the grounds that a qualified Bermudian was available for the job, namely Justice Wade-Miller. She is not by the way a born Bermudian; rather, she is Bermudian through status.

So in 2003, the Progressive Labour Party opposed Sir Richard on the basis of him being non-Bermudian. At that time, the PLP was quite happy to accept that a status Bermudian is the same as a born Bermudian in respect of lobbying for the employment of Bermudians. Fast forward 15 years and we have a premier who has made sinister and mysterious comments about a new Chief Justice, who, like Justice Norma Wade- Miller is status Bermudian, having been in Bermuda since I believe about 1978.

So why then is the Premier chastising Hargun? Well, maybe he is exercised about the Commission of Inquiry — much like the present-day Deputy Speaker, who used less than diplomatic language in insinuating Hargun is racist and accused him of being from South Africa. A blatant lie.

However, given the PLP’s election campaign and continued rhetoric insinuating that Bermudian means “black Bermudian”, given the Deputy Speaker’s rant and given the Premier’s insane comments, the message is very clear. It is especially clear when there was no complaint about the selection process when Ian Kawaley was rightfully selected and rightfully appointed Chief Justice.

These comments by the Premier will be reported widely in the Cayman Islands — our biggest competitor right now that is higher than us in the financial-services sector ratings for the first time. And, ironically, it is the same jurisdiction in which our outgoing Chief Justice is going to continue his legal journey.

Justice Kawaley has helped immensely in advancing, both locally and internationally, the reputation and quality of our judicial system. Without a succeeding Chief Justice who possesses a great depth of knowledge and experience regarding a number of key legal areas, such as high-end commercial, insurance and trusts law, we would be at severe risk of losing further market share to Cayman Islands. I am at a loss to see how objecting to the appointment of such a successor could be in the interests of any Bermudian.

I wish the outgoing Chief Justice well with his onward journey. He is highly respected and rightly so. The incoming Chief Justice deserves our support — not disrespect.

Michael Fahy is a former Minister of Home Affairs, Minister of Tourism, Transport and Municipalities, and Junior Minister of Finance under the One Bermuda Alliance government

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