Editorial | Appointing justices and public-sector boards
It matters naught that the Jamaican Bar Association (JAMBAR) may not have, in the past, invoked the principle of transparency in judicial appointments, or that they might have motives, other than those declared, for their suggestion to the Government about how it should go about naming a new chief justice.
What is important is the merit of the idea, notwithstanding from whom or whence it comes. For, as we noted before, people and institutions evolve and grow. That is how societies advance.
In that regard, JAMBAR's proposal that the Government advertise for a successor to Chief Justice Zaila McCalla, who, under the Constitution, has to demit office when she turns 70 on January 31, 2018, has our support. In the first instance, advertising the job, including in other Commonwealth common-law jurisdictions, has the potential of widening the pool of talent from which the choice is made.
Going this route, in the absence of a constitutional amendment, would not remove from Prime Minister Andrew Holness the power to effectively name the new chief justice in accordance with Section 98 (1) of the Constitution. First, any such amendment, given the time the bill would be required to stay on the table of Parliament before and after its debate, would require at least six months, well beyond when Justice McCalla has to leave. Further, if Prime Minister Holness feels strongly enough about the qualities of a person he nominates, or who someone else proposes, he has the authority to recommend that person's appointment to the governor general. And he should be willing, in the circumstance, to stand behind the courage of his conviction and explain the basis of his decision.
Even as we urge on Mr Holness this flexibility in the exercise of his authority on this occasion, we support JAMBAR's -and whoever may take credit for its advocacy before them - call for deeper reforms to the way in which top judges are now appointed. While subordinate judges are appointed on the recommendation of the Judicial Services Commission, the naming of the chief justice and the president of the Court of Appeal is essentially the prerogative of the prime minister.
This arrangement has a whiff of politicising an independent and almost co-equal branch of government, as well as the potential for weakening trust in State. Thus far, no prime minister appears to have abused that power, or if they attempted so to do, the appointee failed, it seems, to adhere to the expectations of the PM. However, the integrity of such a critical arm of government should not be left to chance, or the whim or presumed integrity of a politician. The appointment of judges at all levels should be on the basis of systems, undergirded by the independence of the people who manage the process, and with appropriate checks and balances. That is the debate which should begin now.
Judicial appointments, however, shouldn't be the only thing on the country's reform agenda at this time. So, too, as this newspaper has in the past campaigned for, should be appointments to the boards of public bodies and companies. For instance, within two months of Mr Holness' administration taking office, it had appointed more than 500 persons to set on the boards of just over 50 state agencies.
We understand the wish for governments to put on the boards of state agencies people who support their philosophies and are ready to execute their agendas, which, to them, usually means naming party loyalists. However, as we noted then, Jamaica, a small country with 2.7 million, isn't overrun with management talent and other skills needed on such boards. Often, the best people have to make way for the partisans. We had proposed two things: One is that membership of these boards be staggered so that appointees straddle election cycles and can't be removed by ministerial whim; the second, board positions be advertised, with the hope that people who have something to offer apply.