Sun | Aug 20, 2017

Revise security of tenure for judiciary

Published:Thursday | December 4, 2014 | 12:00 AM

THE EDITOR, Sir:

The recent appointment of Patrick Robinson to the International Court of Justice provides a source for the outpouring of national pride. It is testimony to the wealth of legal talent that this country possesses. It is interesting to note that Mr Robinson, at age 71, has been appointed for a nine-year period, to commence in 2015. At the end of his tenure, he will be 80 years of age. It is also worthy of note that Mr Robinson would be ineligible, despite his excellent credentials, for any judicial appointment in this country. In fact, based on discernible unpublished criteria, used by the current judicial administration and the Judicial Services Commission, he would have been ineligible long before he had attained the age of 70 years.

This self-imposed restriction on judicial talent is worsened because, as recently noted by the president of the Court of Appeal, the salary of the judiciary falls short of what should reasonably obtain. The judge, on retirement at age 70, is restricted from practising his profession. He is forced to accept a lowering of his already diminished standard of living.

THE UNHAPPY CONSEQUENCE

The only other sources of income that are available to the retired judge are by way of appointments recommended by the Government. The unhappy consequence of this is that judges, particularly those close to retirement, may appear to be less prone to making decisions that may upset the administration on whom they will have to rely for survival. It should not be far-fetched to imagine a jurist, with an important decision to make, taking a path to avoid what a government senator recently challenged an opponent with, a "payback".

A former chief justice has called on the Government to recognise these undesirable restraints on judicial freedom and to increase the age to be more in line with other Westminster-model countries. It may well be considered that to enhance the judiciary's security of tenure is likely to delimit the power of government's other branches. It is, therefore, the responsibility of the 'fourth estate' to ensure a strong independent judiciary. The United States Supreme Court appointments and federal judicial appointments are life appointments, only subject to health and mental fitness. Judges in that court have served up to age 90 years.

Section 100 (4) of the Jamaican Constitution should be the only restriction on the judges' tenure of office, that is, "only for inability to discharge the functions of his office whether arising from infirmity of body or mind or any other cause ) or for misbehaving".

WHY THE DISTINCTION?

There are no age limits other than the requirement for attainment of 21 years for membership to the Senate and the House of Representatives. Why the distinction in the judiciary , an important arm of government?

As we celebrate Patrick Robinson's elevation, an equally learned and respected, if younger jurist, will soon be lost to the Jamaican Court of Appeal because of this arbitrary age distinction. It is paramount to forcing Usain Bolt to quit competitive sprinting at this time in his career for no other reason than that the minister says so. The security of tenure should be a necessary pre-condition to any consideration of the permanent establishment of the Caribbean Court of Appeal.

Donovan McLean

Fellow of The Institute

of Chartered Accountants of Jamaica

Canada