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Trump, Holness walking similar path of missteps

Canute Thompson

Sunday, February 11, 2018

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I continue to see parallels between Prime Minister Andrew Holness and President Donald Trump, and these parallels trouble me deeply. While Holness does not display the level of bellicosity as Trump, there are serious and unsettling areas of commonality which may be shaping a new era of politics in Jamaica — in the same way Trump may be redefining the American way of life and presidency.

If the actions of Holness which, to my mind, bear similarities to those of Trump were merely stylistic and peripheral — such as their love of tweeting — then there would not be an issue of concern. But their actions are of such a nature that they portend potential constitutional crises.

For Trump it is the future of the Robert Muller investigation into whether or not he obstructed justice or sold out to (collude with) Russia in ways that could undermine American sovereignty. And the decision of Prime Minister Holness to appoint Justice Bryan Sykes as acting chief justice represents a potential constitutional crisis for the simple reason that the prime minister has reserved for himself the power to terminate the (acting) appointment of Justice Sykes. This, in effect, means abrogating the independence of the judiciary.

Constitution vs constitution

Our constitution provides for three co-equal, separate, and distinct branches of government — the executive (Cabinet), the legislature (Parliament) and the judiciary (courts). The notion of co-equal, separate, and distinct means none of them is to have a controlling power over the other. By making the appointment of the chief justice an acting one, the prime minister has, in effect, made it a conditional or contingent appointment, and has thereby, unconstitutionally, arrogated to himself the power to decide whether Sykes continues in the job until his retirement (which is what the framers of the constitution intended) or be replaced at a time of the prime minister's choosing, which is thoroughly inconsistent with the concept of co-equal and separate.

The fact that the Prime Minister has created room for him to terminate the acting appointment of the chief justice is in fact a constitutional crisis for the simple reason that he has made the the tenure in the office of chief justice subject to his absolute judgement. This is contrary to the notion of judicial independence. This is simple common sense reasoning.

Those schooled in law have sought to argue that Section 99 (1) of the Jamaican Constitution provides for an acting appointment in respect of the office of chief justice. The section reads:

99 (1) If the office of Chief justice is vacant or if the chief justice is for any reason unable to perform the 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…

This section addresses two scenarios of vacant; the latter where, for example, the chief justice is off the island or ill, in which case the office has a substantive holder who is temporarily unable to discharge the functions so someone covers for a defined period. The former scenario is, for example, the sudden death of a chief justice, while in office, and the unavailability of preparation time to select a replacement after a period of advertising and vetting. Given that we have a fixed retirement age for chief justices — unlike other countries in which a chief justice and other judges may remain in office until death — we have time for smooth transition; the ideal being that the outgoing chief justice hands over the baton to the incoming chief justice. I submit that these are the only circumstances in which section 99 may be lawfully used. The constitution makes no provision for testing the competence of a judge by appointing him or her to act.

The fact is that the Government had ample time to have selected a replacement for the recently retired Zalia McCalla. There was no emergency, there was no suddenness, and therefore no need to have created a stop-gap, acting appointment. Apart from the fact that doing things in this manner suggests lack of attention to important matters — and even sleeping at the wheels — the actions of the prime minister in making an acting appointment has several layers of complication.

Holness's cans of worms

In addition to the constitutional crisis of the executive now having power over the judiciary, Holness has opened several cans of worms. The first can of worms is his assertion that Sykes's permanent appointment would depend on his performance. What does this mean? What is meant by performance? Is it how he rules in cases, or is it how he relates to the executive? Or does it mean whether he shows personal loyalty? And where in the constitution is it stated that a prime minister has the power to assess the performance of a judge, moreover the chief justice? Is this the new Jamaica promised; one in which the executive exercises power over the judiciary?

But it gets worse. The prime minister is quoted as saying: “Actions that bring results will determine the assumption of the role of chief justice.”

What actions? What results? Is the prime minister seeking to cultivate a relationship in which the chief justice dances to the music of the Government? While the prime minister's claim to be in a position to assess the performance of the chief justice is without precedent and a complete violation of conventions and constitutional provisions, having said he will determine the chief justice's fitness for office based on performance he cannot un-speak those words and must now tell the country is simple language what are the chief justice's deliverables, the performance standards, the acting period and, most importantly, how he arrived at those standards. The prime minister cannot claim the luxury of deciding by himself how to assess the chief justice's performance, or make those determinations on the fly. Frankly, the very fact of these issues being raised, which are justifiably triggered by Holness's words and action, paints a bleak picture for the justice system.

We not only have a potential constitutional crisis, we have a crisis of role confusion and possible corrupt use of office. For if the prime minister fails to be transparent in respect of the criteria he will use to decide whether to permanently appoint the chief justice or not then the potential for corruption exists. In the United States, presidents are at liberty to appoint judges whom they believe share their ideological positions. Could Prime Minister Holness have such a wish? I hope not.

Potential conflicts of interests?

Since the announcement of the impending vacancy in the office of chief justice there have been whispers that a member of the Administration, who is a Member of Parliament, has an interest in the job. If Prime Minister Holness were to replace Sykes with this person then a constitutional crisis would become a moral and political one. There are also reports that a matter is currently being heard by Justice Sykes involving Jamaica Labour Party and People's National Party interests. If the court matter is determined before a final decision is made on Sykes's appointment, and he is not confirmed in the post, the prime minister could not escape being understandably accused of abuse of power.

Justice must not only be done, Prime Minister, it must manifestly appear to have been done. The fact that the prime minister's action could give rise to the perception that he may be seeking to influence how a matter is determined is the second can of worms. Thus, the only way to stave off the burgeoning constitutional crisis is for the prime minister to make Justice Sykes's appointment permanent.

Great leaders listen

The prime minister has not exactly demonstrated that he has a knack for listening to contrary view points, or reversing himself in the face of dis-confirming facts. On the contrary, like Trump, the Holness seems to listen only to his base and to press ahead even when the facts and common sense suggest that another direction is the wiser one.

Having put his foot in his mouth with the campaign-induced indiscretion of saying, in effect, that only he and the Jamaica Labour Party can fix the crime problem (much like Trump saying only his views matter), Holness has rejected one opportunity after another to withdraw those baseless and nonsensical comments. Instead, Holness has (sorry…like Trump) doubled down on the comments and appears willing to carry that monkey on his back even in the face of spiralling murders, failed initiatives, and a citizenry living in fear.

Several people with knowledge of the constitution have pointed to the dangers of Holness's actions, but he has dismissed everyone, saying he has the luxury — I hope he misspoke in using the word luxury here — of running the country and being accountable.

But as some people, including those on social media, have reminded us, when it comes to accountability Andrew Holness does not have a particularly good record. He promised that, as prime minister, he would hold ministers accountable and would start by giving them job descriptions within the first 100 days in office. We are now nearly two years in the life of the Administration and the last peep we heard about the job descriptions was about September 2016 when the prime minister indicated that the ministers needed more time to find their feet.

Holness seems not to have learnt anything from his unconstitutional conduct in relation to the pre-signed letters of resignation for senators. And let it be recalled that after the lower court found that the letters and their use were unlawful, the Holness took his fight to the Court of Appeal.

This latest action by Holness — which I hope some entity with standing challenges (unless the PM corrects the problem by appointing Justice Sykes immediately) — suggests that he either has not taken the time to read the constitution or is of the view that he knows better than everyone else. It is one of the marks of a dictator or a person with a messianic mentality to think they know better than everyone else.

Dr Canute Thompson is head of the Caribbean Centre for Educational Planning, lecturer in the School of Education, and co-founder and chief consultant for the Caribbean Leadership Re-Imagination Initiative, at The University of the West Indies, Mona. He is also author of three books and several articles on leadership. Send comments to the Observer or canutethompson1@gmail.com.

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