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400 years of justice

Marking the occasion: Chief Justice Ian Kawaley during the celebration of 400 years of Supreme Court (Photograph by Akil Simmons)

The Supreme Court of Bermuda celebrated its 400th anniversary recently with a special sitting overseen by the Chief Justice, Ian Kawaley. From an historical perspective, and separate and apart from courts in England and Wales, the Supreme Court of Bermuda is one of the oldest continuously functioning courts in North America and in the British Commonwealth.

The Supreme Court is the superior court of record and is governed by the provision of the Supreme Court Act 1905. Bermuda is Britain’s first colony, therefore, the extent of application of English law remains deeply rooted and embodied in the common law, the doctrine of equity, and in acts of Parliament.

Within an historical context, and within its capacity as a public authority, the court is responsible for governing and administering the embodiment of the law on behalf of the British Sovereign and Parliament.

During the heyday of colonialism, in which the sun never set on the British Empire, the status, function, and office of the Chief Justice was vax imperium, powerful and highly respected. The Chief Justice served concurrently in the dual capacity as the chief judicial officer of the Crown and in the capacity as president of the Senate (formerly known as the Legislative Council).

This practice was adopted in Bermuda from 1888 to 1968. The vast majority of these gentleman were educated in the best public schools in England which included Eton and Harrow, and invariably, acquired their law degree at either Oxford or Cambridge University. They brandished the hallmark of British upper-class values and fitted securely into a spectrum in which their place was acquired through status of high birth, social class or privilege.

Prior to assuming the office as Chief Justice, individuals who were usually appointed served within the colonial judicial circuit in former colonial territories through Africa, Australia and India or in other territories of the former British Empire, as either solicitor general or attorney-general and puisne judge.

This was the usual route that one travelled in finding their way to counsels’ benches. There is always an exception to the rule and that occurred in the 18th century. Daniel Leonard a graduate of Harvard College, was born in Norton, Massachusetts in 1740. He practised law in Taunton and was a Loyalist in the American Revolution; he was subsequently exiled to Bermuda, where he was appointed Chief Justice from 1782 to 1806.

The last Chief Justice of Bermuda worked within the colonial matrix mentioned above prior to securing his tenure of office. The late Mr Justice Richard Ground was born in Stamford, England in 1949 and was Called to the Bar in the UK. Sir Richard worked as a Crown counsel in the Cayman Islands from 1983 to 1987; he served there as Attorney-General from 1987 to 1992. He was a Puisne Judge here in the mid-1990s and was subsequently appointed as Chief Justice of Turks and Caicos Islands from 1998 to 2004. He subsequently resigned, and was appointed Chief Justice of Bermuda from 2004 to 2012.

When I started my career as a journalist in the mid-1940s, the Chief Justice of Bermuda was Sir Cyril Gerard Brooke Francis. During my tenure as a court reporter, I was able to witness first-hand the cut and thrust of the legal profession. The prominent attorneys of that time included the late Arnold Francis QC, Sir Edward Richards, Dudley Spurling, Walter Robinson, and of course, the late Dame Louis Browne-Evans. I was often spellbound when Queen’s Counsels from London and the West Indies appeared in some of the more prominent cases in the Supreme Court and the Court of Appeal. Their articulation of the language and of the law was absolutely profound.

Social dynamics have changed quite significantly in Bermuda over the past 40 years and the appointment of officers and judges of the Supreme Court has indeed been reflective of these demographic changes. Sir James Astwood was the first black Bermudian to be appointed Chief Justice in the mid-1970s; upon his retirement he was appointed president of the Court of Appeal in Bermuda. Justice Norma Wade Miller was appointed the first female Puisne Judge and served in that capacity for nearly 30 years prior to her retirement several weeks ago.

The current Chief Justice, Ian Kawaley is a born Bermudian along with Puisne Judge Charles-Etta Simmons and the court’s most recent appointee, Justice Nicole Stoneham. Notwithstanding these social changes, the rule of law remains sacrosanct and absolute.