Wed | Sep 26, 2018

Helene Coley Nicholson | Judicial independence and other fictions

Published:Sunday | February 18, 2018 | 12:59 AMHelene Coley Nicholson
Helene Coley Nicholson
Justice Bryan Sykes
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Public comments on the appointment of Justice Bryan Sykes to act as chief justice and the subsequent historic summit of judges in Kingston on Monday, February 12, have hung on statements made by the prime minister at the swearing-in ceremony. The prime minister is reported as saying, "Actions that brings results (sic) will determine the assumption of the role of chief justice."

However, the statement issued by the Court Management Services on behalf of the judiciary following the meeting reveals that their unprecedented action appears to have been triggered by much more. According to the judges, “Our concern is heightened, as this is against a background of previous statements made by other members of the executive that have crossed the line of the separation of powers and have had the effect of undermining the independence of the judiciary.”

It seems that what Prime Minister Andrew Holness said was simply the last straw. Recent newspaper stories with headlines such as ‘Justice system corrupt’ and ‘Justice minister blasts judges and justice system’ come to mind. Both arms of government agree that there are inefficiencies, deficiencies and delays in the justice system. In reviewing recent developments and where we go from here, the country must consider and address those problems on which there are no disagreements. We must also look at some fundamental issues related to our governance arrangements.

Cabinet’s response the day after the summit outlined the administrative reality. After setting out the public policy objective of the Government as “strengthening of the rule of law and timely justice outcomes”, the statement from the executive branch said, “In our governance arrangements, the judicial arm, specifically the Office of the Chief Justice, shares some administrative responsibility for achieving these outcomes of public policy.”

A corollary to that is the justice system cannot function efficiently and effectively without adequate budgetary support. The extent of that support, the lifeblood and oxygen needed to resuscitate and improve justice outcomes, is determined by the executive. This reality leaves the system susceptible to partisan political and other influences that must be acknowledged and addressed. This is not an accusation, just an obvious weakness.

No discussion about separation of powers and judicial independence would be complete without pointing out that a truly sovereign, independent nation is one that is responsible for itself. While our government consists of three branches, only two of them, the executive and the legislative branches, completely reside here. Critical functions of the legislative branch, specifically those exercised by the Judicial Committee of the Privy Council, are not controlled or superintended by any government chosen by our people. While the status quo remains, Jamaica can only pretend to be independent as one from three leaves none.

 

THE SOLUTIONS

Should the constitutionality of the acting appointment of the chief justice be considered and determined by the court, the fundamental points of executive hold on the judicial purse strings and the incompleteness of the process of Jamaica’s independence would not have been addressed.

Add to that the chief justice’s inability to address in a timely manner certain internal issues such as judicial discipline because of a cumbersome system in need of modernisation and we have a case for constitutional review of our governance arrangements.

Against that background, the following are some suggestions for constitutional review and amendment:

- Consider establishing a trust fund to insulate the judiciary and the justice system from political and criminal influence. The National Housing Trust, in its original iteration and arrangements for the Caribbean Court of Justice, offer models for sustainable financing.

- Modernise the system to give the chief justice more power to manage the process, the judges, and to enforce judicial discipline.

- Provide for retired judges to make themselves available to the chief justice and president of the Court of Appeal on a needs basis and appoint specialist judges.

There are many other changes that could be made to improve the quality and quantity of access to justice. In the meantime, let us desist from demonising judges for delays and inefficiencies in the system. Many of them are doing their best in difficult circumstances.

- Helene Coley Nicholson is an attorney-at-law. Email feedback to columns@gleanerjm.com and helenecoley@gmail.com