Our crime problem in Jamaica is pervasive and frightening. It is undoubtedly a matter of urgent public concern and thus requires serious debate in Parliament. But Parliament cannot evade a constitutional restriction by a colourable device.

Minister of Justice Delroy Chuck’s comments while addressing parliamentarians on Tuesday, May 4, 2021, in response to the uproar from certain groups over perceived overly lenient sentences being handed down from the Bench, may have sounded apposite and relevant to many at the time, but, respectfully, they were unconstitutional.

The minister is quoted in this paper as having declared in Parliament that, “Where the crime, be it murder or other serious offences, is so gross, so gruesome, whether or not the offender pleads guilty, the court should send a solitary message, the strongest message possible, that that individual, when he is sent to jail, won’t see outside again.”

The principle of the separation of powers is not a mere ideal or technicality. Rather, it is the centrepiece of our constitutional arrangement to which all organs of State must conform, so as to guard against the misuse or abuse of State power. Our constitution defines and limits the powers of the Government it creates. In so doing, the Government is divided into three branches — the legislature, the executive, and the judiciary. Each branch has a corresponding identifiable function of government — legislative, executive, or judicial — and each must be confined to the exercise of its own function and is not allowed to encroach upon the functions of the other branches.

That encroachment can take many forms. Influence of one arm of government on another can be subtle and indirect, it may even be unintentional, but any exertion of controlling influence over another arm of government is forbidden by the constitution, however slight.

The statement quoted from the minister in his address appeared to urge judges to issue longer and harsher prison terms to individuals convicted of certain crimes. But the manner in which the judiciary exercises its assigned constitutional powers is not subject to questioning by another branch of government.

The sanctity and impervious nature of the independence of the judiciary is safeguarded by the constitution in various ways. For example, section 100 of the constitution gives a Supreme Court judge the right to hold office until he attains the age of 70 years. That section also provides that only the governor general may remove a judge from office in specific circumstances, which make it almost impossible to so do. A judge cannot therefore be fired by a politician. The importance of this is obvious in that power over a man’s salary is a power over his will. The constitution ensures that there is no such power on the part of Parliament or the executive, and thus gives judges the freedom to carry out their duties with the ability to focus only on the facts and the law before them, without fear. Section 100 of the constitution sets out the process for dealing with reprehensible conduct by a judge. In so doing, the constitution makes it clear that Parliament has no place whatsoever in that process.

The distinction between the role of the judiciary, on the one hand, and Parliament, in the exercise of its legislative function on the other, was properly delineated in the landmark Privy Council decision of Hinds v The Queen, a case in which the Privy Council fiercely protected the principle of the separation of powers. The case acknowledged that, “In the exercise of its legislative power, Parliament may, if it thinks fit, prescribe a fixed punishment to be inflicted on all offenders found guilty of the defined offence… Or it may prescribe a range of punishments up to a maximum in severity, either with or, as is more common, without a minimum…”

However, it went on to make it clear that it must then be left “…to the court to determine what punishment falling within the range prescribed by Parliament is appropriate in the particular circumstances of his case”. The Privy Council was adamant that, whereas the Parliament may, if it thinks fit, prescribe a fixed punishment to be inflicted on all offenders found guilty of the defined offence “consistent with the separation of powers”, it cannot prescribe the penalty to be imposed in an individual citizen’s case. Parliament states the general rule, and the application of that rule is for the courts, the selection of punishment is an integral part of the administration of justice, which therefore cannot be exercised by the executive or the legislature.

Minister Chuck might not have had an intention to supervise or direct the judicial branch, but it may nonetheless have had that effect. Therein lies the danger. No organ of the State should interfere with another in any way. I have no doubt the minister was well-intentioned. Be that as it may, as was recognised in Hinds v The Queen, “A breach of a constitutional restriction is not excused by the good intentions with which the legislative power has been exceeded… If, consistently with the constitution, it is permissible for Parliament to confer the discretion to determine the length of custodial sentences for criminal offences on a body composed as the Review Board is, it would be equally permissible to a less well-intentioned Parliament to confer the same discretion on any other person or body of persons not qualified to exercise judicial powers.”

One may say the comment from the Minister Chuck was harmless or fleeting, and thus undeserving of this level of scrutiny, but acquiescing to small transgressions may foster much greater evils with which we will be forced to contend in the future. We should never become indifferent to infringements on the power of the judiciary, however ‘minor’. Judicial independence is too fundamental a component of national security to not insist on its preservation where a potential threat is perceived.

In the words of Thomas Jefferson, “To take a single step beyond the boundaries thus specially drawn around the powers… is to take possession of a boundless field of power not longer susceptible of any definition.” Tempting as it may be to agree with the minister’s comments, we must insist that the judiciary is protected; just as it zealously protects us from abuse of the Government.

Bianca S Samuels is an attorney-at-law. Send comments to Jamaica Observer or bianca.samuels@gmail.com.