Tue | Feb 20, 2018

Editorial | Confirm Justice Sykes immediately

Published:Friday | February 2, 2018 | 12:00 AM

While we supported the Jamaican Bar's proposal for the Government to advertise for a new chief justice, as well as reforms to the system of future appointments, few people would second-guess the naming of Bryan Sykes to the job. Except, maybe, Prime Minister Andrew Holness.

First, there is little doubt that Bryan Sykes is an experienced and excellent jurist. Agreement with his rulings is not always universal. That is the nature of the judicial process. But Justice Sykes is a deep, imaginative and expansive thinker. Not infrequently, his decisions advance the application of the law and, in the process, the framing of a Jamaican and Caribbean jurisprudence.

Which brings us back to Mr Holness and Mr Sykes' elevation to act as chief justice. There are, in this regard, a few salient facts to be considered.

Under Section 100 of Jamaica's Constitution, a judge of the island's Supreme Court mandatorily retires at age 70. So, once a person is appointed to the Bench, you know, to the day, when he will step down, unless he retires early, or, in an extreme circumstance, is removed from office.

It was, therefore, no secret when Zaila McCalla - who retired this week, after two decades on the Bench, including 11 years as chief justice - would have stepped down. The chief justice's office is a crucial one, the appointment to which governments are wont to give serious thought. This administration would have nearly three years to consider who would be Justice McCalla's successor.

The chief justice, on the basis of Section 98 of the Constitution, is appointed by the governor general "on the recommendation of the prime minister after consultation with the leader of the Opposition". In other words, it was, and essentially remains, Mr Holness' call who is to be the chief justice. For given that Justice Sykes was only named to act in the role until the governor general is "further advised", it suggests Prime Minster Holness did not come to the appointment with certitude. There is a suggestion of doubt by the prime minister, assuming that Peter Phillips, the opposition leader, gave his imprimatur to Justice Sykes' appointment.

We are concerned on a number of fronts, not least of which is the urgency to accelerate the reform of the judicial system, which, despite the best efforts of Justice McCalla, remains slow and inefficient with its backlog of hundreds of thousands of cases. In that respect, the judicial process is an unwitting facilitator of Jamaica's high rate of crime and a drag on the economy.

 

UNLIKELY TO TAKE TOUGH DECISIONS

 

People in acting positions, uncertain of their final or long-term status, are unlikely to take creative and sometimes tough and unpopular decisions that may be necessary for fundamental reforms. In other words, as acting chief justice, we do not believe that Bryan Sykes is appropriately empowered to really get on with the job, including taking initiative, if he could, in short order, find himself back in the ranks.

Another, but related, cause for discomfiture is that the prime ministerial sword of Damocles, may be unintended, but nonetheless implied, by the acting appointment. From that perspective, the presumption is that should Justice Sykes take action that doesn't find favour with the Government, his habitation of the chief justice chair will be short-lived.

That is a presumption that Prime Minister Holness should not want people to have. It may, indeed, be among the reasons, why it has been so difficult to find a case since Independence of an acting chief justice being appointed on the retirement of another.