Tue | Dec 12, 2017

Keep politics out of chief justice appointment - Attorney, retired judge agree process needs review as floated names make lawyers wary

Published:Sunday | November 26, 2017 | 12:02 AMBarbara Gayle
Samuels
Cummings
McCalla
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Chief Justice Zaila McCalla is retiring in January next year and calls are now being made by the Jamaican Bar Association (JAMBAR) and some members of the judiciary for a drastic change in the appointment to such a post.

There is now speculation as to who will head the judiciary, and so far, five names are being circulated in legal circles as the likely successors.

However, under Section 98 of the Constitution, the prime minister, after consultation with the leader of the opposition, advises the governor general who is to be appointed chief justice.

Last week, JAMBAR, through its president, Jacqueline Cummings, sent a letter to Prime Minister Andrew Holness calling for him to advertise the post to get a broad field of candidates for the job.

Several judges who were interviewed say the post should be advertised and the Judicial Services Commission then select two or three candidates for the prime minister to choose from, and that would not be outside of his powers under the Constitution. They said such a move would make the selection process very fair.

Attorney-at-law Bert Samuels does not believe that the appointment of a chief justice should have any political connection.

UNTENABLE SITUATION

Samuels said that due to the importance of the separation of powers, where the judiciary should not be influenced in any way by the executive or legislative arm of Government, the arrangement whereby the prime minister appoints the chief justice is an untenable situation.

“It is not good for the appointer or the appointee,” he argued.

“The prime minister should not be placed in a position that he or she be accused of political reasons influencing the appointment. We must be aware that it is the Judicial Services Commission that appoints judges, and therefore, the head of the judiciary should similarly be appointed by a body removed from political connection.”

A retired judge, in agreeing that every effort must be made to choose the right person for the job, said that in many other countries, it was the prime minister who does the appointment but, of course, with thorough consultation.

“The role of a chief justice is of fundamental importance to the nation and serious consideration must be given in the selection process, and political affiliation should never be considered to be of any importance in such an appointment,” said the retired judge, who wished not to be identified.

Since Independence, chief justices have always been appointed from the judiciary, particularly from the Court of Appeal Bench.

Concerns are now being raised by many judges because the names being speculated for chief justice are not coming from the judiciary.

“I know that a person outside the judiciary can be appointed, but the names we are hearing for consideration to the post make many of us very uncomfortable,” one judge remarked.

“The character and integrity of the person to head the judiciary is of paramount importance,” the judge said.

Another judge, who was asked to comment on the matter, said, “The chief justice must be a person who is fearless, hard-working, competent, have judicial experience, and must be highly respected, and this is the view being expressed by many of us.”

In its letter to the prime minister, JAMBAR stated that it was aware that a selection process was under way for the replacement of McCalla, but that it noticed there was no advertisement to fill the vacancy.

BEST PRACTICE

“Given that the judiciary constitutes one of the three arms of Government and impacts daily on the life of the citizenry, it is of paramount importance that the process of judicial appointment accords with best practice for which the Commonwealth (Latimer House) Principles gives us the acceptable benchmark standards,” the letter stated.

​JAMBAR said it had consistently requested that judicial appointments be advertised, and noted that vacancies in other Caribbean jurisdictions were advertised.

“By contrast, there are very few instances when the local Judicial Services Commission has advertised judicial vacancies,” JAMBAR noted as it called for a change.

“We call on you, Honourable Prime Minister, to lead that change and show your own commitment to the hallowed principles of judicial independence, starting with what must be a tipping point: the appointment of Jamaica’s next chief justice,” the letter ended.