Holness might get away with this untidy matter with respect to the acting chief justice

Thursday, February 08, 2018

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It matters not how many countries with similar constitutions to ours have had acting chief justices or still have their top supreme court judges in acting positions. It matters not that the prime minister has not hitherto interfered with any judge on any legal matter. It matters not that he has never before tried to bring undue influence to the judicial process. For Andrew Holness to say that he will recommend that the acting chief justice be confirmed in that post based on performance is to put himself in the position of evaluator. This is not in the spirit of the constitution, if we go by tradition, according to the British model.

And the prime minister's mention of the word 'performance' with respect to the acting chief justice makes me uncomfortable. I am grateful to Gordon Robinson for stating so clearly what it was that I felt uncomfortable about. Robinson mentioned in his column in the Sunday Gleaner of February 4 that Andrew Holness was putting himself in the position of evaluator.

It is the prime minster's job to evaluate the performance of the ministers of government. As leader of the Jamaica Labour Party, its party constitution might speak to the role of its leader in evaluating the performance of Members of Parliament, caretaker candidates, and the party workers. As a father of children, he is totally within his rights, and indeed his responsibility, to evaluate several aspects of his children's lives just as any other father. But the prime minister oversteps his boundaries in terms of the spirit of the constitution when he attempts to evaluate any judge; let alone the head of the judiciary.

The judges are supposed to act fairly and impartially without any politician 'breathing over their shoulder'. And the prime minister's tone of anger is unjustified because he has brought this whole thing on himself, even if he was ill-advised. It is his decision alone as to whether to heed any advice offered and when to take it.

Being a modern prime minister of a different mindset does not mean that Holness should try to evaluate any judge in any court. Not even the president of the United States of America, in obedience to a different constitution from ours, can do that. The president appoints someone and it has to be confirmed by the United States Senate. And once appointed, the US chief justice serves until retirement or death.

Is there an election petition of sorts pending with respect to a division of the St Thomas Municipal Council? If indeed there is such a petition, will the public know if the acting chief justice has been confirmed in the post of chief justice before the verdict or afterwards?

Should there be any petitions regarding the result of the March 5 by-elections in St Andrew North Western and/or in the Norman Gardens Division of the Kingston and St Andrew Municipal Council, would a ruling by any judge appointed to preside by the acting chief justice have any bearing on whether Justice Sykes is later confirmed in the post?

In 2007 the members of the Public Services Commission were dismissed reportedly because the then prime minister, Bruce Golding, did not like the recommendation for the post of solicitor general — Stephen Vasciannie. I regret that it was not aired in court due to an out-of-court settlement, because it was a dangerous precedent. It was certainly a prelude to this situation with respect to the acting chief justice.

I have argued that elections are won on the day of the election. With this matter of the acting chief justice it does appear that Andrew Holness shares my opinion. He has not up to the time of writing confirmed Justice Sykes as chief justice, but the by-election dates have been announced. It is as if this issue will have no bearing on the by-election results. If it did, Holness might have at least put in place some corrective measures, which in this case would be to simply have Sykes confirmed in the post of chief justice.

But why correct the situation when money can be spent on roads which will give the party machinery work so that they are encouraged to go out and vote on election day? Politicians in both political parties tend to think this way. Why correct this matter of the acting chief justice if more Jamaica Labour Party (JLP) supporters are on the voters' list in St Andrew North Western than those for the People's National Party (PNP)?

But can they get out sufficient voters this time around? Has the rift between Derrick Smith and his son Duane and those who support the selection of Nigel Clarke really been healed? Clearly Holness is confident that the JLP will win regardless of the situation with the acting chief justice.

This is not St Andrew South Western, where the rivalry between Angela Brown Burke and Audrey Smith-Facey did not matter to the PNP because even if the PNP votes were split three or four ways, the JLP did not have enough votes to win. With respect to St Andrew North Western — although in normal circumstances a safe seat for the JLP — the margin of victory is somewhat closer. So a rift within its ranks can upset the apple cart.

But even if the JLP were to lose the St Andrew North Western seat, it would not be because of this situation with the acting chief justice. Similarly, I argue that the PNP's loss of St Mary South Eastern had nothing to do with the Canadian citizenship of Shane Alexis. It had to do with an enlarged voters' list of non-residents of the constituency, plus Government-funded roadwork on the Annotto Bay Main Road that stopped as soon as the campaign was over.

Many of the JLP supporters who spoke out against the “run wid it” affair starring the PNP's Omar Davies are the same ones who accept this state of affairs now that the JLP is in power. There is too much irrational thinking in Jamaica. Small wonder then that Holness might get away with this untidy matter with respect to the acting chief justice. And unfortunately, there are many political hacks that will defend it.

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