Tue | Dec 6, 2016

Judges and security of tenure

Published:Sunday | January 25, 2015 | 12:00 AM

Donovan McLean, Contributor

As a follow-up to my previous letter published in The Gleaner in December 2014, it is my strong belief that we consider the issue of judicial independence and tenure.

The protocol to the agreement establishing the Caribbean Court of Justice, relating to the security of tenure of members of the judiciary, provides for an extension of the tenure to age 75. It is to be noted that the threshold for retirement is 72.

The practice that a judge be not removed, except with cause, would prevent the removal of any judge desirous of remaining until age 75. The Jamaican Government must have been satisfied with the efficacy of such tenure for Caribbean judicial officers. They would have proceeded on good grounds, as there is no lack of evidence of attorneys-at-law, in private and public practice, continuing in their profession well beyond age 75.

If parliamentarians were subjected to the same rule, requiring retirement at age 70, as applies to the judiciary, then Cabinet ministers, A.J. Nicholson, QC, 73, Robert Pickersgill, 72, and the attorney general, Patrick Atkinson, QC, 71, would not only have to pack their bags and leave Parliament on attainment of their 70th birthday, but would be restricted from practising their profession thereafter.

The Court of Appeal and the Supreme Court have always maintained the same tenure, which is currently a retirement age of 70 years. The disparity in respect of the tenure between these courts and the Caribbean Court of Justice cannot, to my mind, be justified. There are factors peculiar to the Jamaican judiciary that provide good grounds to mount the argument that in order to secure for the Jamaican judiciary the quality of independence that their colleagues in the CCJ enjoy, the tenure of the local courts should not be limited by mandating an age of retirement. 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".

Longer tenure required

It is argued that because of the concerns peculiar to the administration of justice in Jamaica, a longer tenure than obtained by the CCJ is required to guarantee the independence of the judiciary. Judges of the Supreme Court and the Court of Appeal are disqualified from sitting as members of either House of Parliament (along with a select group of persons, which include undischarged bankrupts, a person under a sentence of death, a person serving a period of imprisonment, and a person certified insane, or a criminal lunatic. Opposition Senator Marlene Malahoo-Forte, a former resident magistrate, the only sitting member with judicial experience is not considered a judge, for these purposes. However, members of both Houses of Parliament, with the requisite qualification, face no exemption from serving in the judiciary.

Justice Carl Rattray, OJ, had served as president of the Court of Appeal, 1993- 1999, after having served as a opposition senator, attorney general and minister of justice. In the case of Senator Malahoo-Forte, her present service as opposition senator is a loss but no bar to her returning to the Bench elevated as a judge.

The prohibition on retired judges to practise their profession, and their almost total dependence on the executive for lucrative post-retirement appointments, coupled with the inability of the Government to provide adequate compensation, as noted by the president of the Court of Appeal, is a threat to judicial independence.

K.D. Knight, QC, illustrated the plight of many public officials, some of whom would not be endowed with the former minister's star qualities. He is reported in the Observer of May 2011 to be bemoaning the fact that he was broke as a result of 18 years of public service. Happily, Mr Knight, QC, was able to resume his professional practice. Our hope is that his financial health has been restored.

This had led in the past to instances of persons having served in this important arm of government finding themselves in straitened circumstances. One such notable case concerned a jurist who had served at the pinnacle of the judiciary. This scenario demeans the high office of the judiciary and deters the brightest and the best from its portals. Adequacy of compensation is not a concern in the Caribbean Court of Justice, nor is it in most Caribbean countries. There is, therefore, the absence of the pressing need for post-retirement sustenance that faces the Jamaican judiciary.

This is an issue of the protection of one of the constitutional safeguards, judicial independence. It is not necessarily an issue that requires the concurrence of the judiciary, which, by tradition, has a self-imposed code of silence surrounding matters concerning its welfare. The judge would enjoy the option solely on her choice to step away from the Bench.

Donovan W. McLean is a Fellow of The Institute of Chartered Accountants of Jamaica currently living in Canada. Email feedback to columns@gleanerjm.com and danni-mackie@hotmail.com.