Tue | Aug 21, 2018

Editorial | Good idea to advertise judicial jobs

Published:Thursday | November 30, 2017 | 12:00 AM

In his apparent haste to impute partisan political motive in the Jamaican Bar Association's (Jambar) proposal for appointing a new chief justice, Delroy Chuck not only misconstrued the gravamen of its argument, but its practical effect on the ability of Prime Minister Andrew Holness to name the person.

It would not. Mr Holness wouldn't be deprived of the opportunity, if that is the fear, of naming the next top judge, even if the post is advertised, which is a suggestion that this newspaper supports. That would only happen if Section 98 of the Constitution is amended to move such appointments out of the hands of the political leadership. Which couldn't happen in time for the next appointment.

This issue has currency because of the imminent retirement of Chief Justice Zaila McCalla, who turns 70 on January 31, the age at which judges of the Supreme Court are constitutionally required to retire, although they can be asked to continue for a time to complete proceedings or other tasks begun before reaching the retirement age. Whether the privilege to continue after age 70 would also relate to the specific functions of the chief justice is not clear.


Prime minister's choice


What, however, is certain is the process for appointing someone to the post, which is covered by Section 98 (1) of the Constitution: that is done by the governor general on the recommendation of the prime minister after consultation with the leader of the opposition. Having consulted, the prime minister is not obligated to take any advice offered by the Opposition. Fundamentally, it is the prime minister's choice, although, conceivably, he could meet resistance from the governor general.

What has emerged with regard to choosing Justice McCalla's successor is Jambar's suggestion that the post be advertised - in Jamaica and other Commonwealth countries with judicial systems based on common law. That would be a change from the process for appointing people to the Jamaican Bench, which is usually via invitation and private selection.

But, as Jambar's president, Jacqueline Gordon-Cummings, said in an interview, advertising the job is likely to throw up a wider range of qualified persons from among whom the prime minister could make his selection. Further, the association argued in a letter to Mr Holness that this process would demonstrate his "commitment to the hallowed principles of judicial independence, starting with what must be a tipping point: the appointment of Jamaica's next chief justice".

The Government, or at least Mr Chuck, the justice minister, sees less pure motive. He has complained that the association didn't make this suggestion during the administration of the People's National Party. Jambar, however, insists that advertising for judicial positions is a long-held policy, which it has articulated many times across administrations.

Two points are worth noting. One is that it matters not whether Jambar previously made this suggestion. Ideas, systems, and processes evolve. That is how individuals, institutions, and societies advance to the better.

Second, Mr Chuck, and presumably the Government, is not against advertising the position: only not now. He wants to await a constitutional change, outside of which, he seems to assume that there would be a limitation on Mr Holness's freedom to choose. Further, he claims, many qualified persons would not apply for the post and risk rejection.

We make two points. First, the greater likelihood is that advertising the job, as Ms Gordon-Cummings argued, would bring more qualified persons to the table, which wouldn't stop the Government from considering other good candidates, even if they didn't apply. Second, in the final analysis, the call, up to now, would remain with Mr Holness - and not someone else, as Mr Chuck fears.