Editorial | Transparent judicial appointments

Assuming that Chief Justice Bryan Sykes was captured in his intended context, it is surprising that the Judicial Services Commission (JSC) will only this year hold its first ever retreat to review a near two-decades-old report with proposal for the overhaul of the judicial system, including new mechanisms for appointing judges.

But as the maxim goes, it’s better late than never. And this newspaper is happy if its frequent conversations on the justice system, especially judicial appointments, helped to stir the JSC into action.

That the judiciary is independent and highly competent is crucial in a liberal democracy, such as Jamaica. Judges within the context of law, resolves disputes between citizens, or between citizens and the State. It is the courts that determine whether the laws upon which they adjudicate are in concert with the Constitution, the supreme law.

In essence, judges and courts are the ramparts against legislative overreach and power grabs and abuse by the executive arm of government. Citizens look to the courts to protect guaranteed liberties, which are the major foundations of a democratic state.

So it matters who becomes a judge and any level at the system. And especially so, given, as Chief Justice Sykes pointed out last week, that once they are appointed, it was “almost impossible”, except for misbehaviour or severe ill-health.

How Jamaican judges are, or should be, appointed has been the subject of road discussion for decades. But the issue gained new relevance seven years ago when Justice Sykes was elevated to his present position, but with the purported caveat by Prime Minister Andrew Holness that he was placed on probation.

RARE PUBLIC REVOLT

That attempt incited a rare public revolt by the island’s judges, who signed a letter making clear that the attempted action was unconstitutional and would represent an infringement on the independence of the judiciary.

Happily, the Government quickly climbed down.

A decade earlier the question of the appointment of judges was addressed as part of an overarching report on the modernisation of the judicial system by a task force, chaired by the now deceased University of the West Indies (UWI) sociologist, Professor Barry Chevannes.

It is Professor Chevannes’ report that the Judicial Services Commission, which, under the constitution, is chaired by the chief justice, that the JSC will (re)visit this year.

“Despite the fact that it (the Chevannes report) may be considered old, it is still relevant and we take the observations made there very seriously,” Chief Justice Sykes at the swearing-in of a Supreme Court judge and a Master in Chambers.

Arising from the Chevannes Report “and other considerations”, the chief justice said, a committee chaired by now retired Court of Appeal judge, Hillary Phillips, had in 2020 produced a document, presumably synthesising, with additions, the recommendations from 13 years earlier. Judicial system reform in Jamaica isn’t a sprint.

Constitutionally, the Jamaican chief justice and the President of the Court of Appeal are appointed by the governor general on the advice of the prime minister, who is required to consult the leader of the Opposition. Those decisions, fundamentally, belong to the prime minister.

Other judges are appointed by the governor general on the advice of the JSC, whose membership include the chief justice and the president of the Court of Appeal. But the prime minister has a say in the appointment of four other members, including the chairman of the Public Services Commission (PSC), who don’t enjoy the same security of tenure as judges.

INSUFFICIENTLY TRANSPARENT

In 2007 the Chevannes task force concluded that “[t]he current system for the appointment of judges at all levels of the judiciary is inadequate and insufficiently transparent”.

It added: “Some have raised concerns that the appointment process is politicised, although the general view is that the appointments are of very high calibre. Another concern is that there is a tendency to focus on recruitment from the public bar, although this is more of an issue for appointments as Resident Magistrates (now called Parish Court judges) and only indirectly to the Supreme Court.

“The main problem is that the consultation and review process is very informal and is in need of more openness.”

This newspaper has few reasons to believe that much has changed in the 18 years since Chevannes delivered his report. While the information may filter through the legal system, the wider public is largely unaware of existing or pending judicial vacancies, or the criteria by which judges and other judicial officers are appointed.

Indeed, the Chevannes task force addressed this opaqueness in the appointment process and made recommendations to ensure greater transparency.

It proposed, for example, that judicial vacancies “be advertised broadly within the legal profession in both the public and private bars”. We, however, would argue that these openings should be widely advertised, period, without limitations to the legal profession.

We are in sympathy with the recommendation that “judicial appointments should only be made from candidates who formally apply or are nominated, or through a formalised search committee process in order to generate the widest pool of candidates through an open process”, particularly if it prevents “favourites” being parachuted into posts.

The task force’s recommendation for the development of clear criteria by which judges are chosen, as well as its call for the codification and publication of the appointment procedures remains highly relevant.

We are in agreement to with its recommendation that: “Independent Judicial Appointments Committees or Commissions with a broader membership than the current Judicial Services Commission should be established to solicit, receive and review applications, interview candidates and references and make recommendations to those vested with the constitutional authority to make the appointments.”

Elements of this arrangement will require constitutional reform, but as we have said before, in the interim the objective can be achieved with workarounds. That’s not beyond the imagination of Jamaicans.