Columns

Don't mess with judges and their independence

BY GLENROY MURRAY

Wednesday, February 14, 2018

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The fact that the operations of the courts came to a virtual standstill on Monday, February 12, 2018 cannot go without notice. And the fact that this standstill was brought on by the obstinate positioning of the prime minister on the matter of the appointment of Justice Bryan Sykes as acting chief justice is most disappointing.

In keeping with their unassailable ability to miss the point, many of Prime Minister Andrew Holness's supporters are critical of the actions of members of the judiciary who met and released a statement outlining their discomfort with Holness's actions and statements which effectively placed Justice Sykes on probation before confirming him as chief justice.

The actions of the judiciary were both unprecedented and disruptive, but so were the combined actions, rhetoric and overall tone of Prime Minister Holness. I am only left to question the fitness of his legal advisors as I have watched this entire debacle unfold.

A constitutional scholar I do not claim to be, but my limited appreciation of the principles underpinning our democratic constitution meant that red flags were raised immediately when the prime minister acted the way he did.

A foundational principle in any modern democratic constitution is that of separation of powers. This means that the power to govern is divided into three equal parts. The legislature is given the power to make law. The judiciary is given the power to interpret law in individual cases. And the executive are given administrative powers which allow it to develop and implement policies. The whole point of separation of powers is to ensure there is no arbitrariness in governance. The power to govern will not be consolidated in one arm of government and, while the three arms interact at different points, the three each have their own domain which must not be unduly interfered with by the other.

From as early as 1975, the principle of separation of powers was established as one which the courts would apply to invalidate the actions of Government which violated the principle. This was done in the case of Hinds et al v DPP 13 JLR 262, in which the Gun Court Act sought to give powers belonging to high court judges to magistrates. The Privy Council established that the separation of powers requires the independence of the judiciary, and that this independence is guaranteed by the constitutional protections provided to higher courts. Therefore, powers belonging to higher court judges must stay with higher court judges. In the over 40 years since, the bedrock of judicial independence has been understood as sacrosanct.

We were reminded of this in 2005 when the first attempt was made by the Government to make the Caribbean Court of Justice the final appellate court in Jamaica. Its lack of constitutionally enshrined protections and its susceptibility to influence from the executive meant that it could not be at the top of the judicial totem pole (at least not without following the proper procedures for amending the constitution). The Privy Council, once again, placed judicial independence at the forefront and outlined that, while the section 110 of the Jamaican Constitution, which allowed for an appeal to the Privy Council, was not hard to remove from the constitution, the other parts of the constitution which would be affected by the change were harder to alter. The court did not just look plainly at what the Jamaican Constitution allowed for, but also what was the substantive effect of the action being taken.

Fast-forward to the present, the prime minister's actions may have seemed to fit squarely within section 99 of the constitution; however, his actual expressions have demonstrated that he appointed Justice Sykes not because he is still searching for a replacement for former Chief Justice Zaila McCalla, but because he wants Justice Sykes to prove himself. Holness followed the wording of the constitution, but the substance of his actions are far more dubious, and it is this reality that has brought us to this unfortunate place where the courts have had to fight for respect of the independence it has been constitutionally guaranteed since our nation's birth.

That some are criticising the actions of the judiciary is disappointing, given that it ignores that they are their own arm of government, on equal footing with the executive, and that the prime minister has no place in determining what results the courts should be producing so as to satisfy himself to trust the person in leadership thereof.

With the permanent appointment of the chief justice now rectified, I wait to see how the prime minister will deal with those who had assured that his initial actions were constitutionally sound.

Glenroy Murray is policy and advocacy manager at Equality for All Foundation Jamaica Limited. Send comments to the Observer or glenroy.am.murray@gmail.com.

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