Wed | Feb 21, 2018

Martin Henry | Acting chief justice and the rule of law

Published:Sunday | February 11, 2018 | 12:00 AM

With eyes wide open and brilliant legal mind blazing, legal luminary Justice Brian Sykes, 10 days ago, accepted his appointment as acting chief justice. Since then, there has been a tsunami of opinion sweeping over the land from legal minds and other minds, most of it against but a few brave souls in favour of. Some of the fors have pointed out that if Justice Sykes accepted an ultra vires acting appointment, his vaunted wisdom, character and credibility would be lying in tatters, leaving him completely unsuitable for the job of heading the judicial branch of government, acting or fully appointed.

 

Weak defence

 

Prime Minister Holness' defence of the acting appointment could hardly be weaker. Nor does constitutional law require that the GG function only as a well-lubricated conduit for the wishes of the executive and the legislature if those instructions are ultra vires, that is, outside the legal power or authority of the doer to so do.

Mr Holness kept petulantly harping on his unconventional approach to government, his good intentions for judicial efficiency, his lack of any personal knowledge of the appointee which might have affected his decision, and his (Holness') impeccable personal integrity. All of which is neither here nor there with respect to his powers, or lack thereof, to so appoint an acting chief justice into a clear vacancy.

The justification was lavishly sprinkled with 'I'. The head of the executive may not be familiar either with John Adams' famous declaration in the Constitution for the Commonwealth of Massachusetts, approved by the voters in 1780, for "a government of laws and not of men", however good those men and their supporters think they are.

The question of constitutional intent in the appointment of a chief justice figures prominently in the public debate over the acting appointment of Justice Sykes. The best that we could get from the learned retired and longest-serving president of the Court of Appeal, Justice Seymour Panton was a timorous statement of chance and possibility. Justice Panton is of the view that there is no need to leave open the possibility of a constitutional challenge to the acting appointment. "The chances," he weakly opined, "are that the courts will decide that an acting chief justice may only be appointed where there is no vacancy and the holder of the post is on vacation or sick leave or otherwise out of office. We need to avoid such a situation," the retired justice begged.

But, please, why should this possibility be avoided? A court challenge of the prime minister's action (and of that of the complicit governor general), like the legal challenge brought over the PM's powers to revoke senatorial appointments, would be an excellent thing. Good for living, dynamic constitutional law. But who is going to file the case in the courts?

People have been up in arms (almost literally) over perceived risks in the acting appointment of the chief justice to the constitutional separation of powers and to the independence of the judiciary. Actually, there is, and can be, no complete separation of powers in any real political system in the world. The concept is a worthy utopian ideal which political theory has everywhere struggled to achieve against the practical realities of governance on the ground. What can be achieved, and maintained with 'eternal vigilance', which will sometimes involve legal challenge, is a controlled overlap of the branches of government kept to the minimum practically possible.

In our Westminster model, for example, the executive is drawn from the legislature and appoints the chief judges of the judicial branch, the chief justice and the president of the Court of Appeal, as well as the director of public prosecutions and also the Police Service Commission which appoints the commissioner. The great point of security, insulation and independence is that removal, as Mr Holness bitterly learned from his attempted revocation of Senate appointments, cannot be done by a mere reversal of appointment at the pleasure of the appointer. The learned acting chief justice is probably sleeping well at nights secure in this knowledge that the prime minister really has no powers of revocation of his appointment.

Many people lightly think the American system is some big improvement over Westminster. But the president appoints an executive from unelected people, must have the federal budget and many appointees voted by a sometimes hostile Congress with the risk of budget gridlock and the shutting down of the government, and appoints judges, typically aligned to his views, to vacancies on the Supreme Court.

The prime minister is pushing for greater judicial accountability and efficiency and says he wants "timely justice outcomes". Jamaicans are shouting, "We want justice!" His Justice Minister Delroy Chuck has taken a lot of hypocritical public flak for 'interfering' with the 'independent' judiciary in demanding greater efficiency and output, which the Minister insists is possible.

How best can we handle conflicts of interest under separation of powers? Citizens can vote out the elected legislature and with them the appointed Senate and the executive drawn from the legislature. What's to be done about a slow, poor and unresponsive judiciary and lazy, inefficient judges in the delivery of justice as a national priority which the executive is now making it?

The legislature already directs the judiciary in law and the executive provides broad direction in policy. The role of the judiciary in the constitutionally crafted balance of powers is to serve as guardian of the fundamental law, the Constitution. They can rule, and have ruled, that statute law enacted by the Parliament goes against the Constitution or that actions of the executive are unconstitutional. That's why a legal challenge to the action of the prime minister in the appointing of an acting chief justice would be so important and valuable in the evolution of Jamaican law. But the legislature has the powers to amend the Constitution to legitimise the laws it makes!

It is not sufficient for sundry voices, learned and unlearned in law, to be defending on the streets and in the media the 'spirit of the Constitution', a vague and loose and very personalised concept. But who will guard the judicial guards themselves? Or are we to believe that they need no guarding?

The prime minister is gunning for "strengthening the rule of law". But what does that mean? For many people, possibly including the prime minister himself, the rule of law just means tough law enforcement. While the idea has been around for a long time, it was the great 19th- and early 20th-century English legal scholar Albert Venn Dicey who most gave flesh to the concept in his monumental work, Introduction to the Study of the Law of the Constitution.

Dicey opens his chapter on 'The Rule of Law: Its Nature and General Applications' noting that: "Two features have at all times, since the Norman conquest [1066 AD], characterised the political institutions of England. The first of these is the undisputed supremacy throughout the whole country of the central government." Our zones of political exclusion and other areas under don rule run counter to this principle.

The second feature of the political institutions of England, according to Dicey, and which is closely connected to the first, is the rule or supremacy of law.

The rule of law "which forms a fundamental principle of the [English] constitution", from which ours is derived, has three basic meanings, according to Dicey:

1. "The absolute supremacy or predominance of regular laws as opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government. [We] are ruled by the law, and by the law alone.

2. "Equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts. [It] excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals.

3. "The law of the constitution [is] not the source but the consequence [or result] of the rights of individuals, as defined and enforced by the courts."

The Jamaican State is so often in breach of its own laws, hurting its own citizens, and negligently allowing citizens to breach others' rights in law, it's not funny.

Strengthening the rule of law in Jamaica must necessarily include more timely justice outcomes, which will, indeed, as a matter of urgency, require executive and legislative interventions in the performance, not the judgments, of the judiciary.

- Martin Henry is a university administrator. Email feedback to columns@gleanerjm.com and medhen@gmail.com.