A probationary chief justice and Holness's pattern of judgement

Canute Thompson

Sunday, February 18, 2018

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A good indication of what a person believes is hardly found in what the person says in prepared statements, but rather what the person says “off the cuff”, and more so in the person's pattern of conduct.

I am willing to wager that on February 1, 2018 when Prime Minister Andrew Holness spoke at the swearing-in ceremony for the acting appointment of Bryan Sykes as chief justice and said, “Actions that brings (sic) results will determine the assumption of the role of chief justice”, he was not speaking from his prepared text — though a prepared state of mind.

The expressed position of the prime minister was that Justice Sykes was to prove himself worthy of the permanent appointment based on his performance on the job. In making those utterances he gave no indication of the precise deliverables and performance standards to which the probationary appointee would be held accountable, nor the duration of the said appointment.

The prime minister's action brought immediate opprobrium from several sections of the society — and the expected blind support from his devotees. From February 1 to about February 10, he doubled down on his position. On one occasion he questioned the cognitive capabilities of those criticising him saying that he does not know how to be “any clearer” about the decision for appointing an acting chief justice.

I argued in my February 11, 2018 column that Holness's action amounted to arrogating to himself the power to supervise the judiciary in contravention of the letter and spirit of the constitution. I hold the view that this was the effect of Holness's decision, and his obstinacy in relation to that position, in the face of public outcry, means that he and his legal advisors would have proceeded to subvert the constitution if a segment of the population had not pushed back as hard as had been done.

Commendations to the judiciary

The ultimate pushback against Holness's actions came, appropriately, from the members of the judiciary. Although they need no commendation, the 97 judges are to be commended for taking a stance in the face of what would have been — if left unchecked — the firmly planted seeds of the end of separation of powers. The judges, in their statement, made it clear that while they accepted that there was need for improvements in the justice system, they were of the view that:

“…declarations of the prime minister relative to the acting appointment unquestionably have serious implications for the fundamental principles of the separation of powers and the independence of the judiciary. These are principles of great jurisprudential value as they form the foundation of our constitutional democracy and which are critical imperatives for the protection and preservation of the rule of law.”

The case against the decision of the prime minister seemed so clear, and the folly of his position so self-evident, that I had to conclude that when rational people do things so blatantly irrational there is a clear objective in mind. And I was not convinced that the objective of the prime minister was strictly improvement in the justice system, for he could not possibly think that in the space of a few months' or even a year's probation (if that were lawful) any chief justice could turn around our creaking justice system. But even if that were remotely possible, the prime minister must have reckoned that he must abide by the rule of law. The clarity and courage with which the members of the judiciary communicated this sacred principle is most commendable.

Unfortunate statement by Cabinet

The Cabinet has put out a statement seeking to explain the Holness's actions. I take the view that the statement is most unfortunate as it has failed to deal frontally with the issues at hand, and is in some respects a weak deflection. A decisive statement would have indicated that the Government accepts that it erred.

I pinpoint two weaknesses. The statement asserts:

“9. There was never any intention on the part of the executive to 'supervise or direct' the judicial branch. The prime minister in accordance with the constitution recommended someone to perform the roles and functions of the chief justice. It was not intended to have the recommended person act indefinitely. It was always the intention of the Government in short order to appoint the chief justice.

“10. In the prime minister's remarks at the swearing-in ceremony of Justice Sykes, he made a certain comment which has been taken out of context and used to create a non-existent threat to the independence of the judiciary. If those comments caused concerns to the judicial arm, the prime minister has no hesitation in unconditionally withdrawing the comment.”

The fact is that whatever the intentions were, the repeated words of the prime minister amounted to a decision to supervise. A person placed on probation has to be evaluated. To suggest that it was not the intent to have the person act “indefinitely” is laughable. Which acting appointment is indefinite? The effect of paragraph 10 is that we all misunderstood. The comments were taken “out of context”. Wow! And then there was the non-apology apology, “If those comments caused concern…” They have caused concern, and not only to the judiciary. So, go ahead and withdraw unconditionally.

Do we see the pattern?

Holness's seeming disposition to flout the rule of law and the principle and practice of separation of powers, while doubling and tripling down in the face of counter advice is not new. He did this when he used pre-signed, undated letters of resignation. On his instructions, his lawyers advanced arguments which the Court of Appeal described as sheer fallacy. Let us recall sections of Judgement JMCA Civ 21 of the Court of Appeal in the 'pre-signed letters saga'.

Having stated at Paragraph 2 that “the circumstances of this case are unusual, to say the least”, Justice Panton stated:

[33] …(name of attorney) had a difficult task. She submitted that the governor general was obliged to act on the advice of the leader of the Opposition once he had received the “letter of advice”…

[34] (She)… went off base when she submitted that the leader of the Opposition “is the appointer”. It is sheer fallacy to say that the leader of the Opposition appoints members of the Senate. He does not. He has the power to advise the governor general on an appointment — nothing more, nothing less.

[35] (She) … contended that appointments to the Senate are based on partisan representation. In this context, she said, it is artificial to speak of the independence of the Senate in a vacuum…”

Notice the word 'artificial' in paragraph 35. Over the last two weeks, as the country debated the constitutionality of the acting appointment of the chief justice, one of the arguments advanced by the prime minister and his surrogates is that the idea of judicial independence is an artificial construct. That notion of artificial is a thinly veiled reference in the statement put out by the Cabinet. Note as well the ridiculous arguments referenced paragraph 33 to defend the indefensible, and the court's blunt assessment in paragraph 34 that the arguments were “sheer fallacy”.

Holness has claimed that he is from a different era and he does things differently. That may well be so, but in being unconventional one must always conform to the rule of law. Ironically, the Holness Administration has made the “rule of law” the centrepiece of its medium-term programme; but even more ironic, perhaps, is the fact that the person who has articulated the Government's position on this is the learned attorney general. “Rule of law” was mentioned at least three times in the statement by Cabinet. Let words and action meet!

But while the country may have been spared a constitutional crisis as a consequence Holness's acting appointment, the issue of his judgement and the quality of the legal advice he receives, or uses, must concern the country greatly. One of the readers of my column of Sunday, February 11, 2018 reminded me, via e-mail, of two acts of poor judgement by our prime minister.

The person writes:

“In November 2015, a female Opposition member of the Upper House of Parliament publicly and stridently complained that the (male) president ... demanded that the (male) marshal to the Houses venture into the ladies' room of Gordon House to bring her back to the floor of the Senate to answer certain questions.

“She was strongly supported in that ugly public accusation by two male Opposition senators. A few days later, upon the initiative of the Senate president, recordings by the security cameras at Gordon House showed that the female member never, at any time during the day in question, enter the ladies' room, but that at the material time, the female senator and the two males who had sought to corroborate her story were together in the lunch room of the parliament building.

“A mere three months later, there was a change of Administration, with Holness taking over the reins of government, and… he proceeded to… elevate the female to the lofty constitutional position of attorney general, the principal legal advisor to the government and head of the legal profession. And the two males? One to be president of the Senate and the other to be minister of national security.”

The writer continues: “(A) man (who was found guilty of a sex crime in Qatar)…duly served his term of imprisonment and was deported to Jamaica. Lo and behold, Opposition Leader Holness, with Bartlett in tow, found themselves at the Norman Manley International Airport to lay the red carpet in welcome of the convicted... deportee, and immediately thereafter accompanied him to a press conference in his behalf.”

I submit that what makes a great leader is not only his or her courage in seeking to effect change, but his or her judgement and ability to admit error.

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




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