Sat | Apr 21, 2018

Laws of Eve | Why is there a quarrel about the acting chief justice?

Published:Monday | February 19, 2018 | 12:00 AM
Governor General Sir Patrick Allen (right) observes as Justice Bryan Sykes takes the oath of office during a ceremony at King’s House .

It has been almost three weeks since the Honourable Mr Justice Sykes was sworn in as the acting chief justice, but the controversy surrounding the propriety of appointing him to act in that role "until further advised" is still brewing. At the swearing-in ceremony, the prime minister reportedly said that "action that brings results will determine the assumption [of Justice Sykes] in the role of chief justice".

For all the adverse responses that the prime minister's ill-advised statement has evoked, the unprecedented stance by judges across the length and breadth of the island, who engaged in an all-day meeting on Monday, February 12, and then issued a declaration of judicial independence, will not soon fade from our memories.

While the judges met, trials that had been scheduled several months ago and bail applications that were anxiously awaited had to be adjourned, and this is where ordinary citizens may have had their fill of talk shows referring to phrases such as "the separation of powers", "maintaining the rule of law" and the "independence of the judiciary". No doubt, judges felt that the matter was of such grave importance that they had to respond as they did.

 

MORE THAN A TALK SHOP

 

For persons in the legal community and the many civic society groups, who have long understood the role of judges in upholding the Constitution and maintaining law and order, I believe that it is clear that this is more than a 'talk shop'. However, there are many persons who feel that this has been nothing more than an intellectual discussion and that the prime minister, as the leader of the country, was well within his rights to make judges more accountable.

This is a very important legal issue for the following reasons:

Jamaica has a written Constitution, and it is more important and different from every other piece of legislation. This is why it is referred to as being the supreme law.

The Constitution establishes the manner in which the holders of certain critical offices in our society, such as the prime minister and the chief justice, are to be appointed and defines their roles.

It also specifically names three organs of Government - the Executive, the Legislature and the Judiciary - and indicates who should lead them.

The prime minister heads the Executive, while the chief justice heads the Judiciary.

Although the words, 'separation of powers' are not expressly stated in the Constitution, the Constitution is designed to ensure that the process by which the chief justice can be removed is not subject to the whim of any other organs of Government.

In this way, the Judiciary is therefore independent from the Executive and Legislature; because a chief justice, once appointed, enjoys security of tenure, so that he is free to carry out his job of interpreting and applying laws (even if his views are contrary to those of the Government) without being subject to any form of political pressure.

An acting chief justice, whose job could be terminated by the Prime Minister during a period of probation does not enjoy security of tenure in carrying out is job! The issue is that fundamental, but also that simple.

In a press release issued on February 13, the Cabinet, while acknowledging the separation of powers and stating that the prime minister's comments at the swearing-in ceremony were taken out of context, ends by stating that "at an appropriate time and in short order the prime minister will recommend the appointment of the chief justice". In other words, the Honourable Mr Justice Sykes remains the acting chief justice, and this is, at least, undesirable.

- Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.