Our prime minister has been 'acting' ill-advisedTuesday, February 06, 2018
The consideration of Justice Bryan Sykes as our next chief justice by Prime Minister Andrew Holness is an excellent move and has been unanimously accepted by all those concerned with the good governance of our country. However, the decision of our prime minister to have appointed him in an acting position as chief justice was ill-advised for the following reasons:
1. It is unprecedented in Jamaica's history and adds fuel to the fire that, in recent times, there appears to be an attempt to interfere with the independence of our judiciary, be it whether by declaring on political platforms that judges should not give bail to persons charged for certain offences, or that judges should not impose certain types of sentences. In both these instances, there is a flagrant disregard for the rule of law by those who are critical of our judges.
2. Section 99 (1) of our constitution, which is being relied upon by the prime minister to appoint an acting chief justice, is in my respectful view not in conformity with the spirit of that which was intended by the framers of our constitution. This section did not contemplate the appointment of an acting chief justice in a situation where there is a clear vacancy of the post upon the retirement of the holder of the office.
3. The Jamaican economy is already in a fragile state, and international investors, in particular, when looking to invest in countries such as ours, often seek to examine the state of our justice system and whether the system is one that is truly independent of any political interference. This is because, should the need for litigation arise in any trade or investment dispute, such international investors can be comforted that their cases will be treated fairly, without any perception — real or perceived — that there will be external pressure brought to bear in the ultimate determination of their matters before a court. Within this context, in seeking to have the office of the chief justice premised on results, the prime minster has left the door wide open for all kinds of speculations, which we cannot afford at all.
4. It reignites heavy political criticism of the prime minister's own seeming disregard for the supremacy of our constitution, in that it is reminiscent of a similar trait when, whilst in Opposition, the courts ruled that his decision to arrange for Opposition senators to have pre-signed resignation letters, was unconstitutional.
In seeking to defend his position, the prime minister elaborated by speaking to the need for accountability within our justice system to the public. In this regard, he cannot be faulted. However, it may well be argued that there is already within the justice system a measure of accountability by virtue of the fact that a judge's action can always be the subject of a review by virtue of the appellate process insofar as the application of the law is concerned. Outside of this, accountability can easily be met by having a strong Judicial Code of Conduct governed by individuals who do not form part of the political directorate, as is the case in other jurisdictions. Resorting to having an acting chief justice is not the solution.
There must be a recognition that the shortcomings within our justice system are long developed before it comes to the system itself. That is, our courts are presented with an astronomically high level of criminal cases and are expected to dispose of them at a reasonable rate, based on an infrastructure dating back to over half a century ago when Jamaica gained its Independence. Accountability, therefore, of which the prime minister speaks, must first start with effective means and ways of reducing our crime rate.
Recently, a survey revealed that of all crimes committed, the use of illegal firearms was the weapon of choice. More importantly, was the revelation that the offenders of these crimes were young men between the ages of 18 and 27. Against this background, one is forced to wonder whether there is any correlation between all of this and the familiar sight of our young men on street corners holding “ends”, and even younger ones at various traffic intersections when they should all be in school. The time has come for parents to be accountable and the Government itself to have truancy officers islandwide. It is from this state of affairs that crime develops and mushrooms into what we have to deal with today. Hopefully, the much-appreciated zone of special operations legislation will address this.
In seeking to further justify his choice of an acting chief justice, the prime minster referred to the fact that The Bahamas has had an acting chief justice for some time now. This, however, does not serve as a suitable precedent for our own situation, as the Bahamian situation has come about by virtue of its current chief justice being appointed to the presidency of the Court of Appeal. Its current acting chief justice, Justice Stephen Isaacs, was appointed to fill a temporary vacancy, where the current chief justice is unable to perform the function of his office as chief justice due to his new post. In any event, even if there was a precedent applicable in another jurisdiction for the actions of our prime minister, this still would not make it right. One bad precedent does not make another good.
Ironically, in addressing the issue of accountability, the learned acting chief justice of The Bahamas said, “It begins with family planning, beginning in the schools, trying to educate the youth, to raise responsible citizens. Churches play a part as well, with their outreach and mentoring groups. All of these things are so important; however, they are counter-balanced because there are some negative influences as well, such as community activities by mostly young men. If we can break the act of crime, we will have a better country…The courts are blamed for all sorts of things, including causing crime; however, we only see people after all is said and done and the crime is committed. We do trials — as many of them as we can.” This observation of Justice Isaacs is on point and is equally applicable to our present situation.
In all the circumstances, it is imperative that Prime Minister Andrew Holness confirms Justice Sykes as our chief justice as soon as possible. Our prime minister must “act” (pun intended) now!
Peter Champagnie is an attorney-at-law. Send comments to the Observer or firstname.lastname@example.org.