Unconstitutional? Unprecedented? Or just unconventional?

Garfield Higgins

Sunday, February 11, 2018

Print this page Email A Friend!

Power will intoxicate the best hearts, as wine the strongest heads. No man is wise enough, nor good enough to be trusted with unlimited power. — Charles Caleb Colton


Many of those who are calling down brimstone and fire on Prime Minister Andrew Holness for the appointment of Justice Bryan Sykes as acting chief justice of Jamaica seem to be involved in a game of intellectual ping pong.

Last week, the People's National Party (PNP) held a press conference to air its position on the matter of the acting appointment. A report in The Gleaner said, among other things: “Retarding the process of the judiciary and compromising the fundamental principle of Jamaica's Constitution are implications that Leader of the Opposition Dr Peter Philips said are possible in light of Prime Minister Andrew Holness's decision to appoint Chief Justice Bryan Sykes in an acting position. Speaking at a press conference that was held at the leader of the Opposition's offices in St Andrew, Phillips said it was wholly unacceptable that the fundamental principle of the constitution would be impaired by Sykes's lack of settled authority.” ( The Gleaner, February 3, 2018)

Some of the leading opponents of the decision shouted far and wide that the acting appointment was unconstitutional or would impair a fundamental principle of our constitution. In recent days even eminent attorneys have told us that the acting appointment is not unconstitutional and that our constitution allows for such an appointment. Nationwide News Network, on February 2, 2018, reported: “Prominent attorney Lloyd McFarlane has called the prime minister's decision madness and says it's unconstitutional.”

The argument about unconstitutionality has since disappeared. Those who were championing it are no longer shouting far and wide. Did they not check the constitution before their expert public utterances? Those who posited the impairment argument have also gone missing in action.


Unprecedented, really?

Then the country heard from Patrick Robinson, the father of Julian Robinson, general secretary of the People's National Party, that the acting appointment was “an unprecedented nature”. This excerpt from a story carried by Radio Jamaica is instructive: “Patrick Robinson, Jamaican jurist and judge of the International Court of Justice in the Hague, Netherlands, has weighed in on the Government's decision to appoint Chief Justice Brian Sykes in an acting position, arguing that the action, where there is a clear vacancy, is not in the best interest of the country. The decision has sparked negative reactions from the Jamaican Bar Association and the parliamentary Opposition.

In a letter to RJR News Friday morning, Justice Robinson respectfully asked that Prime Minister Andrew Holness immediately confirm the appointment of Justice Sykes as chief justice. Justice Robinson pointed out that the appointment of a judge to act as chief justice of Jamaica is without precedent in independent Jamaica, the Caribbean and the Commonwealth.

Full credit for one of my readers who alerted me to this bit of research: “...on December 22, 2017, Stephen Isaac was sworn in as acting chief justice of the Supreme Court of The Bahamas. On April 14, 2017, Justice Gita Mittal, the most senior judge of Delhi High Court, was appointed acting chief justice of Delhi High Court in India. On November 10, 2016, Justice W S N Onnoghen was appointed acting chief justice of Nigeria, after which he was sworn in as chief justice of Nigeria on March 7, 1017. Chief Justice Bess Nkabinde retired as acting chief justice in Johannesburg South Africa. Nkabinde was appointed in 2016 as a justice of the highest court in the land, and then elevated to acting chief justice up to her retirement.” I have checked this information. It is accurate.


You asked, you get...

Recall this screaming headline from last November, 'Be different when choosing next chief justice, Bar Assn urges'. The story said among other things:

“Judicial appointments to all levels of the judiciary should be made on merit with appropriate provision for the progressive removal of gender imbalance and of other historic factors of discrimination;

“Judicial appointments should normally be permanent; whilst in some jurisdictions, contract appointments may be inevitable, such appointments should be subject to appropriate security tenure;

“Judicial vacancies should be advertised,” the letter quotes. ( Jamaica Observer, November 27, 2017)

Last Friday, Nationwide News Network reported that the Jamaican Bar Association “was concerned about the prime minister's statement that 'actions that bring results will determine if Justice Sykes is confirmed in the post'.” It seems to me that the Bar wants to have its cake and eat it at the same time.


New paradigm

These comments by Holness are a good sign: “I come from a different school, a different age, and a different way of thinking. It may not always coincide with those that have traditional views. In the appointment of the chief justice I was encouraged by the very people who are critical now to take an unconventional view. I followed that view. I interviewed after having gone through a process of shortlisting the chief justice. I have never met the person who I've selected as chief justice. I've never had the opportunity to have a conversation with him. I can safely say I do not know him and I selected someone based upon what is presented on paper, as his résumé, and what I have researched as his work and what I have consulted with with his peers.

“It is indeed a break from the traditional and conventional way in which this was done. I'm certain that the chief justice understands that I am a person who believes in systems of accountability. I'm not intent on treading, trampling, or in any way interfering with the independence of the judiciary, but the judiciary is also accountable for how taxpayers' funds are spent. We want to see an improvement and strengthening in the rule of law and timely justice outcomes, and the chief justice will be accountable for this. I can't be any clearer. Those who want to criticise have the luxury of doing it. I have the luxury of running a country and being accountable to the taxpayers for the results of the systems that we are elected to run.”

It was John F Kennedy who said, “For time and the world do not stand still. Change is the law of life. And those who look only to the past or the present are certain to miss the future.”


Signs of sunrise continue...

'19 months with Andrew Holness-led Administration: Signs of sunrise' was the title of my column in The Agenda on December 24, 2017. Somehow this submission has irritated a vast number of people in the PNP and its affiliates. Is it that they would prefer the seven plagues of biblical Egypt to fall upon Jamaica, land we love?

Richard Blackford, Paul Buchanan and Dr Canute Thompson seem on pins and needles over the positive developments in the country. I believe some people want a kind of characteristic sameness in viewpoints to flow from The Agenda pages. Good luck to them! No amount of empty chat can change the reality that our country is on the right path. I have provided incontrovertible evidence to support the numerous improvements in the country.

And there are more signs of sunrise. Doubtless these bits of recent good news will upset the PNP and its surrogates even more: “Jamaica's 'bond king', Gregory Fisher, in his opening speech at the 12th Jamaican Stock Exchange Conference, quoted approvingly Sandals CEO Adam Stewart.

“ 'In 45 years, we have not seen the confluence of events that's taking place right now — inflation at four per cent, unemployment at 11.3 per cent, and long-term interest rates at eight per cent...Jamaica is ideally poised as a leader in the Caribbean and an international icon of a turnaround story.'

Fisher added that Jamaica is now in fact the leader of the Caribbean economic community, giving kudos to Prime Minister Andrew Holness for steering the ship of State, while observing that Forbes magazine has also made Jamaica its highest-ranked Caribbean Community country.

The three ingredients to Jamaica's stellar performance were, firstly: market confidence due to the precautionary International Monetary Fund Stand-By Agreement.

Secondly, a near-balanced budget, where Jamaica outperformed not only its Latin American and Caribbean peers by a very wide margin, but both developed and emerging countries generally. This has allowed a “crowding-in” effect, with falling government interest rates increasing capital flows to the private sector.

Thirdly, we are finally seeing major signs of economic growth, the holy grail needed to lower the debt/GDP ratio, after many decades, and the market is taking note. ( Jamaica Observer, January 31, 2018)

This good news about the improvements in our employment numbers, I suspect, will send those who subscribe to the Pickersgillian dictum — “We believe it is best for us to form the Government, then anything that will lead us, or cause us to be in power is best for the PNP and best for the country.” — running to the bathroom:

“The Statistical Institute of Jamaica (STATIN), in a release yesterday, said that the declining unemployment rate is at 10.4 per cent, the lowest it has been since October 2008.

“STATIN, the government's statistics agency, said that the youth unemployment rate of 25.4 per cent was also the lowest since January 2008, while female employment continues to increase.

“In addition, it noted that, at October 2017, most of the persons who gained employment were non-government employees.

“According to the information included in the 2017 Labour Force Survey, the number of persons employed in October 2017 was 1,206,800, which was 27,300 (2.3 per cent) more than the 1,179,500, recorded in October 2016. For males, employment had increased by 5,300 (0.8 per cent) between October 2016 (663,600) and October 2017 (668,900), while female employment increased by 22,000 (4.3 per cent) from 515,900 to 537,900 over the same period.” ( Jamaica Observer, February 1, 2018)

This following positive will also surely put some in a state of near madness: 'Fitch affirms Jamaica at 'B'; revises outlook to positive'. ( Reuters, January 31, 2018)


Paul Buchanan — stunted Don Quixote

The dribble spewed by Buchanan in his missive last Sunday in the Sunday Observer is confirmation that he is desperately seeking relevance. The Gleaner of February 25, 2016 described the happy haste with which the good folks of St Andrew West Rural separated themselves from one of the worst Members of Parliament in the previous Portia Simpson Miller Administration: “As if there is a mission to accomplish, voters in the St Andrew West Rural this morning streamed into the Stony Hill Heart Academy with a sense of urgency to cast their ballots for their candidate of choice.” Buchanan was given a political belting by the JLP's Juliet Cuthbert Flynn, a political newcomer.

Having been dispatched from his preferred perch, he now seems to be eyeing the role of a stunted Don Quixote. Recall Don Quixote was a middle-aged gentleman from the region of La Mancha in central Spain. Obsessed with the chivalrous ideals touted in books he had read, he decided to take up his lance and sword to defend the helpless and destroy the wicked.

Buchanan needs to realise I have no vendetta against Peter Phillips or the PNP. Like Dr Martin Luther King Jr said: “I have decided to stick with love. Hate is too great a burden to bear.” I believe Buchanan's tirade is an open admission that my fact-fortified articles are resonating in the inner and outer corridors of the PNP. With regards to his inaccurate assertion that I was separated as principal of Tarrant High School, here are some facts which I hope will make a dent in his thick armour of ignorance:

“Yet another decision by a school board has been struck down by the Supreme Court because of breaches of the law.

“In the latest case, principal of Tarrant High in Kingston, Garfield Higgins, was successful in having a decision by the board to terminate his provisional appointment overturned by the Supreme Court on March 21.” ( The Gleaner, April 2, 2013) I resigned soon after.

Paul Buchanan, by virtue of his public record, knows a lot about separation issues. It is not for me to categorise as premature or not. But was Buchanan separated as the administrative head of the ill-fated Operation PRIDE? I leave it to him to confirm or deny. Recall a front-page story in The Gleaner, on Tuesday, February 9, 2002, which listed major money scandals that have occurred under the watch of PNP administrations. The story made this sad revelation:

“Operation Pride/NHDC (1997-present) - $5.5 billion projected; approximately $22 billion today. Recall also a Gleaner editorial, entitled 'A heavy coating of whitewash', said among other things: “The Angus Report found mismanagement, corruption and ministerial overreach in the scheme. The effect of Rattray's review, commissioned by the then Patterson Administration, and couched in legal language, was to impeach key elements of Angus's findings and provide cover for some of the key actors in Operation PRIDE.” ( The Gleaner, August 10, 2017)

The PNP would want us to sweep those facts under the carpet.


Jamaica's best days are ahead. I am betting on Jamaica, full stop!


We maintain the peace through our strength; weakness only invites aggression. — Ronald Reagan


Garfield Higgins is an educator; journalist; and advisor to the minister of education, youth and information. Send comments to the Observer or

Now you can read the Jamaica Observer ePaper anytime, anywhere. The Jamaica Observer ePaper is available to you at home or at work, and is the same edition as the printed copy available at




1. We welcome reader comments on the top stories of the day. Some comments may be republished on the website or in the newspaper � email addresses will not be published.

2. Please understand that comments are moderated and it is not always possible to publish all that have been submitted. We will, however, try to publish comments that are representative of all received.

3. We ask that comments are civil and free of libellous or hateful material. Also please stick to the topic under discussion.

4. Please do not write in block capitals since this makes your comment hard to read.

5. Please don't use the comments to advertise. However, our advertising department can be more than accommodating if emailed:

6. If readers wish to report offensive comments, suggest a correction or share a story then please email:

7. Lastly, read our Terms and Conditions and Privacy Policy

comments powered by Disqus



Today's Cartoon

Click image to view full size editorial cartoon