Patrick Robinson | Acting role mark of disrespect to judiciary
The appointment of Justice Bryan Sykes to act as chief justice in a case where there is a clear vacancy is not in the best interest of the country, for the following reasons:
1 The appointment of a judge to act as chief justice of Jamaica is, as far as I have been able to ascertain, without precedent in independent Jamaica, and as far as I have been able to ascertain, also without precedent in the Caribbean and, indeed, in the Commonwealth. The unprecedented nature of the appointment does not, of course, necessarily mean that it is wrong, but cogent reasons should be advanced for such action.
2 The practice of appointing persons to act as judges of the Supreme Court is bad enough, but the appointment of a person to act as the chief judge until the governor general is "further advised" is wholly unacceptable. The holder of that office must be seen as the leader of the judiciary in all aspects of its work. As a quintessentially important branch of government, the proper functioning of the judiciary is vital for the preservation of democratic governance.
3 Those responsible for the appointment of Jamaica's chief judge ought to be certain that they have appointed a person who can be relied on to discharge immediately the functions of that high office. If they do not have that certainty, the person should not be appointed at all.
4 Appointment to act as chief justice until the governor general is "further advised" sends the message of a lack of confidence on the part of the prime minister as head of the Government in the appointee, and indeed in the judiciary as a whole at a time when we need to shore up confidence in that body as an independent branch of the Government.
We in Jamaica have been fortunate to have had a splendid judiciary since Independence, with good relations between the executive and the judiciary. Since 1972, I have worked in various international fora on behalf of the Jamaican Government, as well as in my own private capacity. I have always been exceedingly proud to trumpet to foreigners the high quality of our judiciary and the independence it enjoys in law and in fact.
However, I am afraid that this extraordinary step hints at a budding tension between the executive and the judiciary. For appointing Justice Sykes to act as chief justice until the governor general is "further advised" when he is more than qualified for the post, is not only to disrespect him but to disrespect the judiciary as a whole.
5 The appointment of Justice Sykes to act as chief justice suggests that the appointee is being watched closely by the prime minister as head of the Government and that his appointment is susceptible to rescission at any time that the Government disapproves of the manner in which he discharges his judicial function. In that regard, it comes perilously close to being an interference with the independence of the judiciary guaranteed by the Constitution.
The appointment of Justice Sykes to act until the governor general is "further advised" would scarcely appear to be consistent with the security of tenure envisaged by the Constitution for judges of the Supreme Court. As a practical matter, how is it reasonable to expect him to discharge his judicial and administrative functions if his tenure is so uncertain?
Indeed, distinguished judges in the international setting in which I operate, as well as former Court of Appeal judges in other Caribbean jurisdictions with whom I have consulted, have expressed the view that the appointment of a person to act as chief justice until the governor general is "further advised"could be challenged in the courts.
6 In light of the important questions of principle raised by this wholly unprecedented action, it is irrelevant whether Justice Sykes agreed to the appointment to act as chief justice. The matter is not personal to Justice Sykes. It is an institutional question affecting the judiciary as a whole, as well as the integrity of democratic governance. It is plainly wrong, as a matter of principle, for a person to be appointed to act as Jamaica's chief judge until the governor general is "further advised".
7 In light of the foregoing, I respectfully ask the honourable prime minister to immediately confirm the appointment of Justice Sykes as chief justice of Jamaica.
- Patrick Robinson is a judge of the International Court of Justice in the Hague, Netherlands. Email feedback to firstname.lastname@example.org.