Mon | Dec 11, 2017

Gordon Robinson | Principle or ulterior motive?

Published:Sunday | December 3, 2017 | 12:00 AM
File Chief Justice Zaila McCalla will demit office next year.
File The Jamaican Bar Association did not protest the process by which Lensley Wolfe and other sage appointees were chosen, columnist Gordon Robinson argues.
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It seems that the Jamaican Bar Association (JAMBAR) has suddenly discovered a yearning for transparency.

So JAMBAR wrote to the PM asking for transparency in the appointment of the next chief justice. Yawn! If it wasn't so irritating, JAMBAR's letter would be hilarious. To begin with, the non-transparent method of appointing a chief justice is provided for in Jamaica's Constitution:

"98 (1) The chief justice shall be appointed by the governor general by instrument under the Broad Seal on the recommendation of the prime minister after consultation with the leader of the Opposition."

The Judicial Services Commission, which appoints all other Supreme Court judges (through the GG), is excluded from the process. Interestingly, the identical constitutional process is mandated for the appointment of the president of the Court of Appeal, while "other" appeal court judges are appointed by the Judicial Services Commission.

For years, I've been a lone voice calling out in a forest of the hearing-impaired for radical constitutional reform as the only way to Jamaica's progress or prosperity. Very few lawyers have come on board (the earnest young thinker, and amateur agriculturist, Clyde Williams, being a notable exception). JAMBAR has been as silent as a Hokkaido on the subject. Up to now, the egregious, cataclysmic flaws in our constitutional arrangements have been of zero interest to most lawyers.

But now, JAMBAR writes:

"Given ... the judiciary constitutes one of three arms of Government and impacts daily on the ... citizenry, it's of paramount importance that the process of judicial appointments accord with best practice for which the Commonwealth (Latimer House) principles give us the acceptable benchmark standards."

Well, blow me down! Since Independence, at least five chief justices and hundreds of judges have been appointed by the process set out in the Constitution without a whimper from JAMBAR. When Rowland Phillips or Ken Smith was appointed chief, nobody mentioned transparency. When Edward Zacca was appointed, JAMBAR didn't cry out for transparency. When Lensley Wolfe was appointed, JAMBAR spake not a word of transparency, and, finally, when Zaila McCalla was appointed in 2007, the words 'Latimer House Principles' escaped nobody's lips.

Recently, the great Seymour Panton retired as president of the Court of Appeal (and before him, the unparalleled Paul Harrison). NOBODY, certainly not JAMBAR, asked how come 'Latimer House Principles' weren't applied when Seymour Panton and Dennis Morrison were appointed to replace them.

Now, JAMBAR is getting all coy and principled:

"The clearly established principles, with which we fully expect Jamaica to comply, given our active role in formulating them, deal squarely with the issue of judicial appointments under the first heading - 'Preserving Judicial Independence' as follows:

The appointment process, whether or not involving an appropriately constituted and representative Judicial Services Commission, should be designed to guarantee the quality and independence of those selected for appointment at all levels of the judiciary."

What exactly does JAMBAR propose to create that "guarantee"? What's its idea of the correct "design"? The letter asks for "transparency" but makes no suggestion as to how this can be achieved. It doesn't even ask to meet the PM to propose a new system of appointments. Just says, stop!

"Judicial appointments to all levels of the judiciary should be made on merit with appropriate provision for the progressive removal of gender imbalance and of other historic factors of discrimination."

What's meant by "merit"? Should judges undergo special training before being eligible for appointment? Should they sit for a probational period? Where are JAMBAR's concrete alternative proposals to achieve "transparency"? How is "merit" to be measured? Who's the arbiter of "merit"? JAMBAR?

What's this about "gender imbalance"? Is this why no complaint about lack of transparency or non-reliance on 'Latimer House Principles' was raised when Zaila McCalla was appointed?

Recently, I had the pleasure of appearing before a panel of three appeal court justices, all of whom were female. I commented on the positive change, and we all recalled the days when pioneers like Justices Madge Morgan and Avril McKain were alone in what was definitely a "man's" profession.

 

NO GENDER ImBALANCE

 

Today, there's no gender imbalance on the Bench, and to suggest this is to ignore the strides women have made without any help from quotas or "gender imbalance" rules so that they now have equal status both at the Bar and on the Bench. There are at least four women (five, if you include the chief justice, who is an ex officio appeal court judge) sitting on the appeal court Bench (out of seven posts), and last week's Supreme Court schedule listed nine male and nine female judges (including Masters).

"Judicial appointments should normally be permanent; whilst in some jurisdictions, contract appointments may be inevitable, such appointments should be subject to appropriate security of tenure.

"Judicial vacancies should be advertised."

Why is JAMBAR so antsy, after 50-odd years, about lack of advertisements in judicial appointments? What JAMBAR isn't telling the public is that it has always had a vigorous lobby in and input in judicial appointments. It's JAMBAR's input that resulted in Boyd Carey, of blessed memory, not being appointed appeal court president. Partly because government was told in no uncertain manner that the brilliant but unpopular Carey wouldn't be accepted by the Bar, government was forced to appoint Carl Rattray as president to a howl of undeserved opprobrium from public commentators, led by the erstwhile 'Smutty' Perkins. President Rattray silenced his critics in his inimitable style by quietly performing a magnificent job.

So there's no way JAMBAR can convince me that they're writing this letter out of principle. For years, I've been explaining to Jamaica that the problem isn't who's appointed, but how appointments are made. I've ranted and raved about our constitutional arrangements that allow ministers to write two-line letters of appointment in secret, as a result of which political hack after political hack is made head of vital national agencies like the NSWMA, BGLC, the NHT (remember Outameni?), the NWC; UDC, et cetera, et cetera, et cetera (channel Yul Brynner).

Despite scandal after scandal involving some of these organisations JAMBAR zipped its mouth about lack of transparency in public-service appointments. Vacancies in statutory boards are rarely advertised.

JAMBAR writes:

"... The process of appointing a new chief justice should start with advertising the position and receiving as broad a field of candidates as possible ... ."

DWL. How broad? Should junior associates in boutique law firms be "received"? Exactly how many Jamaican jurists would JAMBAR propose be considered for the post? Five? Ten? Twenty? A hundred? What makes JAMBAR believe THIS prime minister, as opposed to all others before him, isn't considering ALL qualified jurists and consulting within and without the professional associations without subjecting applicants for such a sensitive judicial post to public scrutiny or contempt as the Constitution specifically mandates? Why is THIS prime minister told that he's incapable of handling a national obligation that's been handled capably and without demur by every prime minister before him finding himself or herself in a similar situation?

Why has JAMBAR been so acquiescent for so long on this vexed issue of secret appointments and now comes out only about the anticipated secret appointment of a particular chief justice? Why was no complaint made when others were appointed in the past? Anybody wants to know the truth, the whole truth, and nothing but the truth regarding this disingenuous stand on 'principle' from JAMBAR?

 

RUMOUR HAS IT ...

 

A rumour has been bruiting about the legal profession for months that a certain individual is to be appointed chief justice. My sources tell me that at a weekend seminar conducted by JAMBAR at Half Moon Hotel just before the letter was sent, the subject was on the lips of almost every lawyer present. The expected appointment of that particular individual received almost undivided disapproval from lawyers present and a unanimous thumbs down from lawyers who have spoken to me since the rumour first broke.

THIS is why JAMBAR suddenly found its voice and located long idle 'principles'. Unlike other popular and excellent choices, the rumoured appointee would be received with (let's be polite) extreme misgivings. THAT's why JAMBAR is so agitated. It has NOTHING to do with principle and everything to do with asinine assumption (something Haemorrhoid wouldn't abide; see last Tuesday's column) and putrid prejudice. And we wonder why lawyers are forever the butt of sarcastic humour?

Now that JAMBAR has found its principles, I invite it to join me in a focused, intensive, uncompromising movement to force fundamental constitutional change to include transparency in ALL leading public-service appointments. Or it can continue to apply tunnel vision to these important issues, seeking only to promote narrow professional interests. By their deeds ... .

Peace and love.

- Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com.