Monday, 1 February 2010

A Gibraltar Born Chief Justice

The appointment of the Hon. Anthony Dudley CJ as the first Gibraltar citizen to hold the office of Chief Justice is certainly newsworthy. What remains to be announced is for what period of time he has been appointed

An appointment under Section 64(1) of the 2006 Constitution would be until he is 67. This raises the specter of too long a term in office by the same individual. A fear already expressed in an earlier blog: "Judging Judges". A person who is too long in post can lead to negative consequences that are best avoided.

An appointment under Section 64(7) can be for a term certain. There is judicial authority for the proposition that too short a term undermines judicial independence. The leading authority on this point is Starr v Procurator Fiscal, which held that generally a term of 3 years is too short.

If this is what has been done, rule 9 of the Guide to Judicial Conduct of England and Wales prohibits someone who has been a judge from returning to practice privately as a barrister or solicitor. Is this prohibition to be applied in Gibraltar? If not, why not? If it is, what will someone like the Hon. Anthony Dudley CJ, who has achieved such high office so early in life, do upon his retirement from office?

I wonder whether a typical compromise solution will be found for Gibraltar, like ignoring rule 9 cited above, and whether that will be excused on the basis of its small size? How long can we carry on relying on this excuse without actually realizing that, applying objective internationally recognized standards, Gibraltar has to find other solutions rather than compromising at all times for purely nationalistic and political expediency.


  1. How many candidates were there? Who were they? What breakdown Gibraltarians v. expatriates?

  2. These are good questions that remain unanswered, with further questions like, where, how often and for what length of time was the office advertised and how long were potential candidates given to reply to adverts for the office? If all was not done properly and with sufficient time and adequate coverage, the number and quality of candidates will be influenced by these extraneous factors.

  3. Under the previous constitution, the Chief Justice was appointed until the age of 67, or until removed through the proper constitutional process. This could simply have been extended to all Supreme Court judges. Instead, the new Constitution provides that they only have security of tenure so long as their instrument of appointment lasts. This is disgraceful.