Gordon Robinson | Real justice
Last Sunday, I called the justice ministry “unconstitutional”.
I know you saw it. You said (to yourself, because you’re kind), “This chap’s Kool-Aid is spiked with mad puss piss!” How can that be? Jamaica ALWAYS had a justice ministry, don’t? Well, routine ain’t necessarily right.
The sun comes up and the sun goes down.
The hands on the clock go round and round
I just got up; now I gotta lay down.
Life gets tee-jus, don't it?”
1. Parliament, established by Chapter V of the Constitution, consists of The Queen, the Senate and the House of Representatives. Its purpose/power is set out there:
“48. (1) Subject to the provisions of this Constitution, Parliament may make laws for the peace, order and good government of Jamaica.”
2. Jamaica’s executive authority (Cabinet) is created in Chapter VI as vested in the Queen and exercised on her behalf by the governor general through Cabinet, whose purpose/power is explained thusly:
“69 … (2) … Cabinet shall be the principal instrument of policy and shall be charged with the general direction and control of the Government of Jamaica and shall be collectively responsible, therefore, to Parliament.”
3. Chapter VII sets up the judiciary (Part I Supreme Court; Part II Court of Appeal):
“97. (1) There shall be a Supreme Court for Jamaica which shall have such jurisdiction and powers as may be conferred upon it by this Constitution or any other law.”
Judges’ appointments are dealt with very carefully in an obvious attempt to ensure judicial independence:
“98. (1) The chief justice shall be appointed by the governor general … on the recommendation of the prime minister after consultation with the leader of the Opposition.
(2) The puisne judges shall be appointed by the governor general … acting on the advice of the Judicial Service Commission.”
Part II contains similar provisions as they relate to the Court of Appeal. Consistent with the Constitution, the jurisdictions of the two superior courts of record are delineated in two judicature acts.
Further concretising of the concept of judicial independence is found in sections 97(3) and 103(4): “No office of judge of the Supreme Court/Court of Appeal shall be abolished while there is a substantive holder thereof.”
Think clearly about what might be the legal result of a written Constitution conceiving three separate arms of government in three separate constitutional chapters be. Pay attention, everybody, this is important!
Water in the well’s gettin' lower and lower
Ain't had a bath in six months or more!
But I've heard it said and it's true, I'm sure.
Too much bathin' weakens ya.
From as far back as 1975, in the celebrated Gun Court cases [officially cited as Hinds & Others v R (1975) 24 WIR 326], the Privy Council reviewed these constitutional arrangements and held as follows:
“Even though the Constitution doesn’t expressly provide for separation of powers of the executive, legislature and judicature, it’s necessary, by implication, that the basic principle of separation of powers will apply to the exercise of their respective functions by these three organs of government. Thus even though the Constitution does not contain any express prohibition upon the exercise of legislative powers by the executive or of judicial powers by either the executive or legislature, the doctrine of separation of powers still applies ... .”
The basic principle of separation of legislative, executive and judicial powers is, therefore, implicit in a constitution based on the Westminster model so that judicial functions are to be performed exclusively by the judiciary without any interference from the executive or the legislature and the vice is extremely versa. Accordingly, since Hinds v R, many attempts to interfere with judicial discretion have been struck down as unconstitutional (e.g., mandatory death sentences; commissioner of customs’ power, given under the Customs Act, to select the quantum of a fine for persons found guilty of smuggling). Parliament keeps trying; judges keep slapping Parliament on the wrist. Everywhere Parliament tu’n, macca jook it!
I open the door an' the flies swarm in
Close the door and I'm sweatin' again
Walk a little fast and I bruise my shin
Just one darn thing after another.
Since Jamaica has a Constitution that entrenches separation of powers (albeit by implication), why would the executive believe it has the right to create a ‘justice’ ministry and appoint a ‘justice’ minister who decides, among other things, judges’ emoluments, conditions of work and accommodations? Isn’t this at least an indirect interference with judicial powers? I’ve heard it said (and it’s true I’m sure) he who pays the piper calls the tune.
Still in doubt? Remember this?
“No criminal case should stay in the court longer than two years … . There’s no reason why cases shouldn’t be tried within a few months. I must start firstly with the judges, as far too many of them are weak in the conduct of their courts. When the prosecutors or defence ask for adjournments, the first question they (judges) ask is, 'What date do you want?' That shouldn’t be the first question. The first question should be, 'Why can't we try the case today?”
Who said that? Disgruntled lawyers? Prosecutors? Families of victims? Nope. It was a member of Jamaica’s executive, the ‘justice’ minister, who’s supposed to keep his executive powers separate from judicial powers, TELLING JUDGES WHAT DECISIONS TO MAKE.
Old brown mule he must be sick.
I jabbed him in the rump with a pin on a stick.
Humped his back but he sure wouldn't kick
Sump’n’s cock-eyed somewhere.
“If judges were willing to put their foot down, a lot of cases wouldn’t have 12, 20, 30, 50 mention and trial dates. I’ve spoken to the judges and I’ve said to them, don’t let the prosecutor or the defence counsel twist you around their fingers. When a case is set for trial, it must be tried!”
Who said that? Who’s “spoken to the judges” and “said to them, don’t let prosecutor or defence counsel twist you around their fingers”? Must’ve been the chief justice? Surely, this can’t be a man who’s constitutionally restrained from interfering with judicial authority?
But it is THAT man. Where’ll THAT man draw the line? Does he even have a pen? Is there a category of judicial discretion upon which he’ll hesitate to instruct judges? Will he tell a judge to hurry up a judgment in a particular case? Will he try to influence the actual decision? Will he just keep chewing out the judiciary until, one day, it’s a mere adjunct of the executive?
There’s a mouse knawin' on the pantry door
He's been at it fer a month or more.
When he gets through he's gonna be awful sore
'Cause there ain't a darned thing in there.
Not only does that man feel sufficiently emboldened as to publicly boast of his interference with judicial powers, but he’s encouraged by his post to do it. After all, he’s the minister of justice.
Hound dog howlin' all forlorn.
Laziest dog that ever was born
He's howlin' 'cause he's sittin' on a thorn
An' too durn lazy to move over.
Carson Robison was an old-time country and western singer/songwriter whose most famous song, Life gets Tee-jus (tedious) don’t it?, was written and recorded in 1948. It’s been covered by many, including Walter Brennan and Hank Williams Jr. Each artiste put his own twist on Robison’s hilarious lyrics about a set-in-his-ways, idle rancher who just wanted to be left alone, but I’ve reproduced the song today as it was sung to me religiously by my father who loved country/western music and worshipped this song. The final two verses are odes to persons expert in getting by while doing the absolute minimum but, doggone it, if it wasn’t for bad luck, they’d have no luck at all.
The cows gone dry and the hens won't lay.
Fish quit biting last Saturday.
Troubles pile up day by day.
Now I'm getting dandriff.
If we’re serious about justice; if we want justice not only to be done but to manifestly be seen to be done; if we want a viable system of governance; we’ll amend the Constitution to provide a limit on the number of ministries (12?) and name them so politicians can’t play musical ministry names every five years.
National Security; Education, Youth and Culture; Transport and Works; Housing, Water and Land; Industry, Commerce and Agriculture (including Fisheries and Mining); Foreign Affairs (including Foreign Trade and Tourism); Energy, Science and Technology (including Environment and Climate Change); Labour and Social Security; Health; Finance and Planning (including the Public Service); Attorney General’s Chambers. Why would three million citizens need a bigger executive?
Grief and misery, pain and woe,
Death and taxes, here we go.
I think I'm gettin' a cold in my nose
Life gets tee-jus, don’t it?”
Peace and love.
- Gordon Robinson is an attorney-at-law. Email feedback to email@example.com.