The chief justice affair: Who's really the boss?

Al Miller

Sunday, February 18, 2018

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Judges don't often make the headlines. More frequently their decisions are the subject of news stories — usually when there is disagreement with a decision. Some would say that it ought to be so — that the judiciary should remain a relatively silent group that keeps their collective head down and presses on with the work no matter what is happening in the society around them.

In recent times, however, the judiciary has been the subject of much public discussion. People have begun to ask questions that have previously perhaps only been canvassed in closed legal circles. Who are our judges? Who appoints them? To whom are they accountable and, what if anything can be done about 'bad' judges?

The cat upset the pigeons

All of these issues and others have been brought into sharp relief because of the 'acting appointment' of Justice Brian Sykes as chief justice, and more grievously ,some say, because of the comments made by the prime minister at the swearing-in ceremony. The Gleaner, in its February 2, 2018 edition, reported on Prime Minister Andrew Holness as follows:

“ announcing the appointment, Holness asserted that Sykes's permanent appointment would depend on his performance. Actions that bring results will determine the assumption of the role of chief justice, Holness said during the swearing-in ceremony for Sykes.”

The prime minister's comment that 'actions that bring results will determine the assumption of the role of chief justice', certainly set the cat among the pigeons. The outcry has been loud and voluminous and appears to have resulted in a change of position by the prime minister. Our own Jamaica Observer of February 13, in its inimitable style, reported on the prime minister's 'about-face' that:

“The furore over the appointment of Bryan Sykes as chief justice of Jamaica could end Friday when he is expected to be confirmed in the job, an impeccable Jamaica Observer source said yesterday.”

Some think that the new-era prime minister should not have changed his decision. Others believe he was wise to listen to counsel and to make the appointment permanent. Whatever your view, the perceived untidiness of the situation has exposed to public view some potential flaws in our current three-pronged structure of governance. Jamaica still maintains the Westminster style of constitution with its tripartite model — executive, legislative and judicial branches of the State. Each has its areas of responsibility and serves as a safeguard against the others, at least in theory.

I know not the man

I noted with interest the prime minister's comment that he did not know the man he was swearing in as the nation's chief justice and that he had never met him. You may ask how this is possible. Personally, if I was in the prime minister's place, I would have wanted to first meet him for at least a get-to-know you session, to sense his heart. Could it be that the Prime Minister Holness feared the very thing that he has been accused of? Should not any responsible leader want to be sure that he/she is making the right decision, especially for positions with far-reaching implications for a nation. Perhaps there are aspects of the system and procedures that need a rethink for effectiveness.

As with all such appointments, the recommendations actually come from the Judicial Service Commission. Similar arrangements exist with the Police Service Commission and the Public Service Commission. The idea has, of course, been to protect the important functions in the government service from the taint of political interference. So we have a system that tries to insulate the career public servants from the political establishment.

Of course, there are difficulties inherent in the system. The main one is this: The people of Jamaica elect representatives to take charge of the country's business in all aspects. As a result, we expect results from the political directorate. All the public goods and services that a Government is expected to produce, such as safety and security, justice, education, health care, infrastructure, etc, are deemed to be the responsibility of the executive branch.

When murders go up, we blame the minister of national security. When the ventilation fails at a major public hospital, the minister of health takes the heat. Likewise, when the delays in the judicial system mount, the minister of justice is expected to solve the problem. Herein lies the conundrum. The ministers are held responsible and very often they have very little control or even influence over those who are charged with the day-to-day administration of the portfolio matters.

While we understand the 'why' and 'how' we arrived at the systems that we now have, nations, like organisations, also at times need to renew themselves by revising some of the systems, customs, norms, or structures to be relevant to the times and to a renewed vision. The prevailing situation at a given time may warrant certain approaches and measures but, with changes in circumstances, appropriate adjustments need to be made. Failure to re-examine and make the requisite changes can cause unnecessary difficulties, frustrate those involved, and hinder the desired results.

Call for renewal, again!

There has been much talk about creating the new Jamaica and, with new-era leadership emerging, it is an opportune time to look back and think again about some crucial issues. I would invite us to not just continue as we have been, but to stop and take a critical look in an objective way at these and other areas for best wisdom going forward for greater effectiveness. Truth is, what motivated some previous decision-making no longer obtains, yet those decisions remain and are guiding our present, at times with crippling effects.

I have been a long-time advocate for a general fresh-start approach for our nation after 50 years. This would allow us an easier base to bring about the much-needed and talked-about transformation at the core of the nation. Our new-era prime minister and the rapid transitioning of leadership from the first post-Independence generation leaders to the emerging leaders are the perfect backdrop for the fresh-start approach. Everyone — organisations, the oppressed, disenfranchised youth, and the political culture — needs it.

Our bold, new-era prime minister can make it happen. What a glorious time to be alive in our nation if our emerging new-thinking leaders would be courageous and radical enough to give the nation a fresh start. I believe our people are ready. Are our leaders ready to set the framework to facilitate it?

Perhaps renewal should even take place in the well-established State system of governance that we inherited. The encroachment into the domain of the judiciary that some believe took place in the manner in which our new-era prime minister spoke and acted concerning Justice Sykes highlights the need for dialogue on authority, responsibility and accountability.

Some may say it's an unnecessary dialogue, as our separation of powers is a long-established principle of governance practised by modern and peaceful democracies. I beg to differ.

In any system of governance, responsibility and authority must stop somewhere. It cannot be that everyone is equally responsible with equal authority. If there are three entities that are equally responsible, you will likely have chaos. You can have differences in areas of responsibility, but ultimate authority must reside in one location. In our system, the prime minister must, on behalf of the people, bear ultimate responsibility for every government function.

I am not encouraging or supporting interference with the judiciary, but someone must have influence or authority over the judiciary. They must be accountable to someone, and the someone should be those to whom government is entrusted by the people.

In our democracy, the people constitute the final authority, although politicians in government often seem to forget that — except at election time. It is the people with the final authority who elect the legislature. The executive is formed out of the legislature, and it is the executive that has the responsibility of selecting the key officers in many areas of government including the chief justice. Responsibility without the commensurate authority will have expectations that cannot be realised.

Sophisticated 'block road'

Justice is a central pillar on which the society is built. Government has the responsibility to ensure that the justice system works for the people. The judiciary is obviously a key component in that system, and so great care and time must be taken to ensure that the right people are put in charge of the judicial process.

Tough as it may sound, the recent action of the judges (calling a meeting of judges on a Monday morning which crippled most of the island's courts for the day) is, at worst, an act of rebellion to authority. At best, it is a lack of humility and/or wisdom. This may not be a popular position, or one shared by many legal minds, but a view that should be considered on its own merit, being based as it is in a greater principle — that of authority.

The judges' action is no different to citizens who block roads and burn tyres when unhappy about a matter; only in a sophisticated form. Did a few judges representing the group seek audience with the prime minister first? The action they took should be the last resort and not the first line of action. Respect for authority and the rule of law says that there are certain kinds of action one should never consider unless all systems fail and show clear evidence of extraordinary circumstances. Leaders must remain composed, controlled and remain careful to take only such actions as are right and responsible; ones that never violate fundamental principles such as authority which is the basis for order in society.

Who's the boss?

The judges' action could give the impression that the judiciary views itself as being above question or reproach, and therefore the ultimate authority. In a statement released to the press, 97 unnamed judges spoke of the accountability of the judiciary to the public. But I ask the question, how is this accountability to be achieved?

The judiciary is not directly accountable to the people. They are not, as in some countries, elected by the people. The accountability then could only be indirectly through those whom the people have elected to govern in their interest. If that is so, then that is where the authority rests.

Again, I am by no means suggesting that there should be any interference with judicial independence, nor should any undue influence be exerted on the judiciary as a whole or on any individual judge. But it cannot be beyond us to ensure that there is transparency and accountability in the judicial system.

Interestingly, the Jamaican Bar Association has called for the post of chief justice to be advertised to allow for qualified individuals to apply for the job. This is certainly a good first step. Without them actually saying so, the inference that may be drawn is that the process as it is currently carried out has weaknesses.

The process of selecting judges is primarily conducted by judges, the Judicial Service Commission being comprised, as it is, mainly of other judges. So, in effect, we have a system of internal control by judges who appear from their statement to be saying, “We are judges, trust us. Don't even give the appearance of any other person having authority over us or request that results be produced.” But I must ask, is the primary issue here about the fear of interference or about the right to command?

I find it ironic, hilarious even, that the very branch that took umbrage at the alleged interference by the head of the executive branch themselves interfered with his domain by their own words and actions demanding that he change. Where is the tripartite independence in that? Something must be transformed here.

It's time for us to have a serious discussion about the kinds of changes that will result in transparency, accountability and results-driven performance in all our government departments and agencies. Justice is the responsibility of those who govern. It is one of the primary goods that must be produced by any legitimate elected Government. Therefore, the executive branch must be concerned about the delivery of justice and those who are charged with the responsibility of ensuring it.

If we truly want to see the new Jamaica, we will have to be open to changing some of the old ways. It may be uncomfortable at first, and even unusual, but isn't that the very point? We should be uncomfortable with the ways things have been since we have not yet seen the results that we desire.

Rev Al Miller is pastor of Fellowship Tabernacle. Send comments to the Observer or

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