Tue | Feb 20, 2018

Peter Espeut | Justice must appear to be done

Published:Friday | February 9, 2018 | 12:00 AM
Governor General Sir Patrick Allen (left) presents Justice Bryan Sykes with his instrument of appointment during a swearing-in ceremony at King’s House on February 1. Justice Sykes has been appointed to act as Chief Justice.

One of the huge disadvantages of an absolute monarchy is that the sovereign may appoint whoever he wishes to any post in his government, producing what is effectively a crony government. The monarch is thus able to effectively impose his will. He makes all the laws, he is supreme judge in all legal matters, and he has full executive power to run the country.

If he is a benevolent dictator, he will seek to rule for the good of his subjects; but if he is not (and few have been otherwise), he will pass laws and adjudicate for his own benefit and for the benefit of his cronies. Because of this, over the centuries, this approach to governance has been rejected, and there are very few absolute monarchs left in the world.

Western countries have developed benevolent democracies that seek to achieve the ideal of government "of the people, by the people, and for the people". To prevent new dictators from emerging, the powers of government have been split into three branches - one passing the laws (the legislature), one adjudicating based on the laws (the judiciary), and the third administrating the country according to the laws (the executive).

Each branch of government has the responsibility of watching over the other two, implementing what is called a system of checks and balances.

The legislature can pass a vote of no confidence in the executive, while the executive can dissolve the legislature. In Jamaica, we do not have a real system of separation of powers, as the executive is a subset of the legislature, and is, therefore, not really separate from it.

 

The JUDICIARY

 

The really independent branch of the Jamaican government is the judiciary, which has the power to overturn legislation (ruling it unconstitutional), and to rule the executive in breach of the Constitution. The courts also have the power to judge that members of the legislature or the executive have broken the law, and to penalise them. It is, therefore, is crucial that the persons appointed to the judiciary are not closely connected with either the executive or the legislature, for this may bias their legal judgments and create a conflict of interest.

Equally of concern is that this may APPEAR to bias their legal decisions. This is why the dictum of Lord Chief Justice Hewart is so fundamental: "It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done."

Therefore, neither the executive nor the legislature must be directly involved in the appointment of members of the judiciary - and especially of the chief justice - as this might set up the appearance that the appointee is beholden to the appointer; which might give the appearance of bias should the appointee ever rule in a legal judgement in favour of the appointer.

 

HISTORICAL EXAMPLE

 

An example from Jamaican history may be instructive. In 1914, Cecil Vernor Lindo recently returned from Costa Rica, bought the Bolton house in St Andrew, and presented it to the colonial government as a residence for the attorney general of Jamaica in gratitude for what the government had done for him; the government declined his offer on the grounds that it might be embarrassing if Lindo ever had to face the courts. In such a case, no matter what the courts ruled, justice would not have appeared to be done.

In Jamaica, we have not found a wholly satisfactory way for the government to appoint members of the judiciary, especially the chief justice. What we have done for judges is to ask the governor general - himself appointed by the prime minister) to appoint a Judicial Services Commission (on the advice of the prime minister), which then sources and selects the judiciary. This arm's-length arrangement creates the appearance that judges are not appointed by the executive.

In the case of the chief justice, it is the Prime Minister directly who makes the recommendation to the GG. Surely this arrangement, which is in our Constitution, violates the principle of the separation of powers.

What is worse, the Prime Minister has recommended to the GG that only a temporary appointment be made so that he can evaluate the performance of the chief justice, to determine whether he will be appointed permanently. For a certainty, this seeks to ensure a compliant chief justice. Should the chief justice ever make a ruling which favours the government, justice will not appear to be done.

In my view, this provision in our constitution needs to be revisited. In the interim, the appointment of the chief justice should be made permanent without delay.

- Peter Espeut is a sociologist and development scientist.

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