Columns

The new circus in town

Lorenzo Smith

Sunday, February 11, 2018

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I am completely flabbergasted with the recent pronouncements and subsequent defence of same coming from the prime minister regarding the muck up with the appointment of the chief justice. The prime minister's comments and actions regarding the appointment of the chief justice are in wanting.

Nationwide News Network, in a story 'Holness encourages acting chief justice to prove himself' reported “Prime Minister Andrew Holness is asking Acting Chief Justice Bryan Sykes to prove that he can deliver positive results before he can be confirmed in the job.”

We should all have a serious problem with this. Justice Sykes, with over 30 years in the justice system, a judge of impeccable character with well-written judgements that act as guidance for the judiciary should be proof enough that he is capable to sit in the office of chief justice. When since the head of the judiciary, one of the three branches of government, has to prove himself to the prime minister? The chief justice is not acting at the behest of the executive nor the legislature.

The acting chief justice was reportedly appointed under section 99 (1) of the Jamaican Constitution, which reads, “If the office of chief justice is vacant, or if the chief justice is for any reason unable to perform the judges' functions of his office, then, until a person has been appointed to that office and assumed its functions or, as the case may be, until the chief justice has resumed those functions, they shall be performed by such other person, qualified under subsection (3) of section 98 of this constitution for appointment as a judge, as the governor general, acting in accordance with the advice of the prime minister may appoint for that purpose by instrument under the broad seal.”

My reading of those sections is that an acting chief justice is possible if the office is vacant through illness or any extenuating circumstances that would prevent said person from executing his or her duties, which is not the case here. We were aware of the date of retirement from the moment the Chief Justice is appointed so why is the prime minister pussyfooting with this appointment?

Why does it appear as if we are moving away from the doctrine of separation of powers? Robinson et al in Fundamentals of Caribbean Constitutional Law posits, “It is very important that other institutions of government should not be able to dictate to juridical offers how to perform their functions.” It is clear that the framers of the constitution were trying to prevent the very thing that presents itself and that is interference with the judiciary whether perceived or otherwise. We must shun the very appearance of interference.

The office of chief justice proves itself to the Court of Appeal and the Privy Council. The prime minister stated further that he is “confident that Justice Sykes will act in the role of chief justice and very soon will fully assume the role of chief justice…” what are the terms of this perceived probationary period? How long will Chief Justice Sykes act? Is the acting chief justice reporting to a 'superior'? These are the questions we must ask. This is the conundrum in which we find ourselves.

The pièce de résistance was when the prime minister said “...an action that brings results will determine the assumption of the role”. This statement flies in the face of the nation's constitution. What exactly is the prime minster hinting at? It is actions like this that give support to calls made by the Jamaican Bar Association for swift and immediate changes in how we select our chief justice. My only reservation is, why stop at the chief justice? Why not call for a constitutional reformation?

Prime Minister Andrew Holness contends that the public is interested in the strengthening of the rule of law and that they want to see just and timely outcomes. These are cause for concern, yes; however, let us be clear, it is the remit of the prime minister through the executive to equip the justice system with the necessary tools that will aid in the swift delivery of justice.

For far too long our judges and the director of public prosecutions have been calling for justice yet it seems to evade them. Mr Prime Minister, the courts are understaffed; there is malfunctioning equipment, some outdated; there is also the constant cry from judges for more office space, and I want to submit research assistants. I am sure that provided with the tools necessary the judges will with much alacrity.

From all indications, Prime Minister Andrew Holness selected the right person but used the wrong process. I don't doubt that he has good intentions, but these good intentions must be grounded in sound advice.

Sir, it is not too late, accept wrong and make it right, appoint the Justice Bryan Sykes as chief justice of Jamaica.

 

Lorenzo Smith is an educator with interests in social justice. Send comments to the Observer or to lorenzsmitt@gmail.com.

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