Columns

Appoint Justice Sykes as full chief justice without delay!

Wednesday, February 07, 2018

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I have no doubt that Prime Minister Andrew Holness means well in his appointment of Justice Bryan Sykes as acting chief justice. One has no doubt also that he is committed to the canons of accountability that can lead to good governance. Indeed, this is a subject to which he has spoken often since taking high office.

But accountability does not mean that you proceed on matters which defy public goodwill or which call into question the very accountability that you are striving to perfect. In delicate areas of governance — such as overreach in directing the operations of the judiciary — the way in which you seek to be accountable can run counter to your objectives for transparency and fairness. In the eyes of many in and outside of the judicial system we seem to have reached this stage in the appointment of a chief justice in an acting capacity.

The prime minister has contended that he has come from a different school and is informed by a different way of thinking that may not coincide with those who have traditional views. This may be so, but he ought to be mindful that when he is moving boundary walls, erecting new barriers, or simply doing things because he believes he has the power to, he does not run afoul of the constitution or useful precedents that have been established over the years and that have proven to work.

The appointment of an acting chief justice for Jamaica brings several questions into consideration. One of the most important relates to what criteria will be used to determine whether the acting chief justice is suitable for the job. Further, what mechanisms of accountability will be instituted in coming to a fair assessment that he is chief justice material? Further, what are the timelines and deliverables within that timeline that the prime minister is working with? One is not sure whether any careful thought was given to these questions, but if the prime minister is prepared to do something this radically new, that breaks with tradition, it is only fair that he spells out in no uncertain terms how the process will be managed.

Other questions arise. Will Justice Sykes be judged on his managerial and administrative skills or on the judgements and decisions that he arrives at as the foremost jurist in the country? This is where things can get very choppy. The administration of justice in a democratic society is a delicate matter that must be treated with utmost sensitivity. There is strong suggestion that this sensitivity is not being observed by Holness in this matter. Although the separation of powers doctrine is not one that is entrenched in our constitution, as it is in the United States for example, Jamaican governments since Independence have operated on this principle that the judiciary is sacrosanct and must be kept more than an arm's length from the political executive. Up to now this has worked and served the country well. The judiciary remains one of the institutions that enjoy high public favourabilty as it has a high degree of public trust, despite its imperfections.

The prime minister is creating an unnecessary conundrum that, if insisted on, may well end up in the constitutional court. The chief justice, and the judiciary by extension, must not be or appear to be fettered in the performance of prescribed duties. To whom is Justice Sykes going to be accountable during and after his period of vetting? What kind of performance hoops will he have to jump through to make Holness, the chief political executive in the country, become favourably disposed to him? And if he fails to be so disposed, will a new acting chief justice be appointed to go through the same rigmarole as Justice Sykes?

In a speech where he sought to give greater clarity to his decision, Holness said: “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.”

In the instance of his decision he may endeavour to be clearer by helping us to understand to whom Justice Sykes will be accountable during his apprenticeship period. Will it be to him or some board or committee that he appoints?

We all want to see a strengthening of the rule of law, and we certainly want to see timely justice outcomes, but these cannot be at the expense of a denuded judiciary. The country will be better served if we have a straightforward appointment of a chief justice as has been the practice rather than indulging a process that is fraught with the risk of too many missteps.

It is confounding, and at the same time ironic, that the vetting standards to which Justice Sykes will be subject should be applied to a man of his intellect and calibre. It is indeed an insult to his intelligence that after having spent so many years at the bar, performed with excellence and admirable judicial temperament as a judge, enjoyed the universal acclamation of his peers as a good jurist, that he should now be asked to sit what amounts to an exam for the job.

Why Holness finds it prudent to wade through this kind of water at this time boggles the mind. Does he not have enough on his plate that he has to be setting out on a course of action on which he is bound to reverse himself? He may have the luxury of running the country — as some of us do to criticise his actions — but he must not think that his concerns for the country is any more important than those of his critics.

His zeal for accountability is well understood, but stubborn persistence on a course which many see as ill-considered will not achieve what is intended. Holness must heed the calls of the Jamaican Bar Association other members of civil society and the wider Jamaica and rescind this poor judgement before it really becomes untenable. It reminds one of the sagas of the infamous Senate letters in which Holness steadfastly refused to yield and was ruled against in the courts. There are some battles that are just not worth the fight; some cans of worms that are best left unopened.

Dr Raulston Nembhard is a priest and social commentator. Send comments to the Observer or stead6655@aol.com.

PULL QUOTE

The prime minister has contended that he has come from a different school and is informed by a different way of thinking that may not coincide with those who have traditional views. This may be so, but he ought to be mindful that when he is moving boundary walls, erecting new barriers, or simply doing things because he believes he has the power to, he does not run afoul of the constitution or useful precedents that have been established over the years and that have proven to work... if the prime minister is prepared to do something this radically new, that breaks with tradition, it is only fair that he spells out in no uncertain terms how the process will be managed.

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