Sun | Dec 16, 2018

Bert Samuels | The people have spoken

Published:Friday | February 16, 2018 | 12:00 AM
Bert Samuels
Prime Minister Andrew Holness
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As the dust created by the whirlwind of public outrage settles on the appointment of the acting chief justice, and the terms of the acting unequivocally stated as supervisory probation by the prime minister, the chief executive officer of the state, I wish to make my two cents' contribution.

The cacophony of barking from multiple watchdogs of the Jamaican Constitution, including close to 100 judges, regarding the chief justice appointment debacle, was unprecedented. We have become a better and more mature democracy based on the unheeded voices who called a spade a spade in denouncing the prime minister's blunder. In marine affairs, you cannot know the strength of a vessel until she has traversed troubled waters. Similarly, our freedom of speech was tested and found to be in good health over the past fortnight. The strength of people power was well played out in 2017 in support of the preservation of the Cockpit Country, and now, already, in 2018, regarding the independence of the judiciary.

The issue is of such importance, regarding governance in general, that it must be allowed debate. We do not have a parliamentary democracy. Rather, we have a constitutional arrangement where that document is supreme. So, when laws passed by our Parliament, or action, taken by the executive (prime minister), are out of line with the Constitution, its guardian, the courts, can strike the blunder down.

 

A NEW GENERATION

 

The minority voice in support of the prime minister's action said they felt he represented a new generation where accountability was the panacea of good governance. In 1975, the Privy Council respectfully contemplated this misguided approach and declared in the case of Hinds, when the Gun Court Act was challenged, in the words of Lord Diplock, that:

"A breach of a constitutional restriction is not excused by the good intention with which the legislative power has been exceeded ..."

Similarly, the constitutional breach by Prime Minister Holness is not excused by any good intention he may have entertained when he made the full appointment of Justice Sykes indefinite, uncertain, and subject to his own supervision.

Because the prime minister is a layman in relation to the law, I am prepared to place the blame at the feet of his adviser(s) - if he sought advice prior to making his ill-advised acting appointment. He cannot rest on the excuse of bad advice if he turned a blind eye to the letter of the Constitution, electing to prefer in its stead 'accountability'. It is timely advice that the prime minister's mandate in our democracy is allegiance to the oath he took in front of the very governor general, to whom he passed erroneous instructions two weeks ago to fill a clear chief justice vacancy with an 'actor'. He swore on March 3, 2016, to "uphold the Constitution". Later, on the March 10, 2016, he told the newly-sworn-in ministers of Parliament - with reference to we, the people - that, "We are their servants, not their bosses". Two years later, he would have learnt the lesson that we, the people, have spoken, directing him that he is subject to and ruled by our Constitution.

- Bert S. Samuels is an attorney-at-law. Email feedback to bert.samuels@gmail.com and columns@gleanerjm.com.