Tue | Aug 11, 2020

Editorial | Where’s the discussion on judicial appointments?

Published:Sunday | July 12, 2020 | 12:22 AM

The little rumpus over the extension of Paula Llewellyn’s tenure as director of public prosecutions (DPP) reminds of a thus-far unattended matter of public policy, to which it is related. That is, calls for reform to the system for judicial appointments, which gained traction two and a half years ago with Prime Minister (PM) Andrew Holness’ lubberly approach to appointing Bryan Sykes as Jamaica’s chief justice.

The PM first caused Justice Sykes to be named to an acting position. In the face of complaints that his move was antithetical to the independence of the judiciary, Mr Holness retorted that as a leader born after Independence, and not bound by tradition, his intention was to put the chief justice on trial for the permanent job.

“I come from a different school, a different age, and a different way of thinking,” he said. “It (his approach) may not always coincide with those that have traditional views.” Except that in the specific instance, there were concerns that he was stepping on constitutional and democratic norms.

In the end, confronting a national outcry, including a revolt by the judiciary, Mr Holness relented. Since then, though, there has been little public discussion on the idea, championed most strongly by the Jamaican Bar Association (Jambar), that the country look at new ways of recruiting and appointing judicial officers, including advertising the posts.

Opening up the system, Jambar argued prior to the imbroglio over Justice Sykes, would mean that “all qualified persons would have an opportunity to apply for the job”.

We are not aware of Jambar’s thinking regarding the appointment of DPPs or whether Peter Phillips, the opposition leader, is in favour of an open-selection process for this and other judicial posts. Indeed, his opposition to continuing Ms Llewellyn’s 12-year tenure – a position made moot by her three-year extension – rested primarily on two planks. One was his argument that Ms Llewellyn just hasn’t done a good job, especially with respect to prosecuting corruption cases. The other is his contention that emerging thinking is to limit the tenure in such jobs to seven years, which overlaps the five-year terms of political administrations.

POWERFUL POSITION

Under Jamaica’s Constitution, the DPP occupies a very powerful position. Not only can the holder of the office “institute and undertake criminal proceedings against any person before any court other than a court martial”, but the DPP can take over proceedings started by another authority. Further, the DPP can “discontinue at any stage before judgement is delivered in any … criminal proceedings instituted or undertaken by himself or any other person or authority”.

And as declared in Section 96(6) of the Constitution, in the exercising of those powers, the DPP shall not be subject to the direction or control of any other person or authority.

Clearly, the person asked to wield such enormous and unfettered power should, intellectually, be among the brightest, possessing also, high levels of emotional intelligence. While the website of the DPP implies that the holder of the office is appointed by the governor general, unlike with the chief justice and the president of the court of appeal, there is no clear declaration of the governor general’s involvement, or the prime minister or the leader of the opposition in the Constitution. Indeed, the only specific reference to the role of the governor general in appointing the DPP at Section 96(1)(b) relates to the extension of the tenure of the incumbent after the compulsory retirement age of 60. In such a circumstance, the governor general makes the appointment “acting on the recommendation of the prime minister after consultation with the leader of the opposition”.

Apart from the chief justice and president of the court of appeal, other judges are appointed by the governor general on the recommendation of the Judicial Services Commission. Usually, the passage to the Bench, or to becoming DPP, is via the prosecutorial services. Only occasionally is their recruitment from the private Bar – and not usually through an open and transparent system.

Judges are required to retire at age 70 and the DPP at 60, although, in either case, they may be allowed to continue for up to five years. Ms Llewellyn will be allowed to continue for three. It is time, hopefully, that will be put to good use in planning for her successor.

For, it is not unreasonable, in the circumstances, without any imputation on the incumbents, that we seriously review how we appoint people to high judicial, and related, offices, to determine whether nearly 60 years on, the framers of the Constitution got it right. Or if there are things in need of tweaking or radical overhaul.