This has been a funny week. The appointment of an Acting Chief Justice (and Prime Minister Andrew Holness’ remarks at his swearing in) has raised some eyebrows. The legal fraternity does not appear to be impressed, either. We are in sensitive and difficult times insofar as the National Security and Justice portfolios are concerned, and the Government seems to be under considerable pressure. Here is a Statement from the anti-corruption group National Integrity Action (NIA) on the “Acting” issue, followed by the Prime Minister’s remarks in response to the criticisms. But is this simply a constitutional issue? Why are the legal and human rights fraternities (not to mention the Opposition) getting hot under the collar? Is Acting Chief Justice Bryan Sykes “on probation”? Anyway, here is NIA’s statement:
February 2, 2018
NIA Statement on Prime Minister’s Appointment of an Acting Chief Justice
NIA calls on Prime Minister Andrew Holness to promptly provide the Jamaican people with a full and compelling explanation of the reasons underlying the appointment of Justice Bryan Sykes as “acting” in the position of Chief Justice or, in the absence of such an explanation, to immediately advise the Governor General to appoint Justice Sykes to the position of Chief Justice.
The need for a full and compelling justification arises from:
- The need to uphold the fundamental principle of transparency underlying Jamaica’s system of constitutional democracy;
- The Prime Minister’s own pledge in his inaugural address: that my role is to “ensure” that “the nation is informed”;
- The fact that the appointment of an acting Chief Justice in the current circumstance is unprecedented in Jamaica and, on good authority, unprecedented in the Caribbean and in the Commonwealth; and
- The critical importance of explaining any action such as the current one that could appear to or, in fact risk the “independence of the judiciary.” It is worthy of note in this regard, that Jamaica’s “Judicial Independence” traditionally places Jamaica in the top quartile of countries globally and is celebrated internationally.
In the absence of a compelling explanation, NIA calls on the Prime Minister to advise the Governor General to forthwith appoint Justice Sykes to the position of Chief Justice. We make this call in the light of:
- Consensus, shared by Prime Minister Holness himself, amongst the widest sections of the legal profession and the Jamaican people, that Justice Sykes is eminently and unquestionably qualified for appointment as Chief Justice.
- The unacceptability of the Executive setting the acting Chief Justice unspecified “actions that bring results” for an unspecified period of time that “will determine the assumption” of Office.
- The real danger of appearing to and/or in fact undermining the intention and spirit of Jamaica’s Constitution to guarantee that the Judiciary is a separated power of the State from the Executive. NIA recalls that the recently published Judicial Conduct Guidelines, developed by a distinguished committee chaired by the President of the Court of Appeal, requires that “an appropriate distance should especially be maintained between the Judiciary and the Executive, bearing in mind the frequency with which the Executive is a litigant before the courts.”
- The real danger of a Constitutional action challenging the Prime Minister’s authority to appoint a person to act as Chief Justice in current circumstances, thereby risking prolonged litigation between two arms of the Jamaican State.
Taking into account the extraordinary challenges currently facing Jamaica in the maintenance of law and order as well as in raising levels of trust in critical institutions of the State, NIA urges the Prime Minister to act promptly in the manner recommended above in resolving the Chief Justice’s appointment as a matter of urgency.
Professor Trevor Munroe, C.D., D. Phil (Oxon),
Executive Director National Integrity Action
Today, the Prime Minister responded to the criticisms thus:
“I come from a different school, a different age and a different way of thinking. It may not always coincide with those that have traditional views. In the appointment of the chief justice, I was encouraged by the very people who are critical now to take an unconventional view. I followed that view. I interviewed after having gone through a process of short listing the chief justice. I have never met the person who I’ve selected as chief justice. I’ve never had the opportunity to have a conversation with him. I can safely say I do not know him and I selected someone based upon what is presented on paper as his resumé and what I have researched as his work and what I have consulted with with his peers. It is indeed a break from the traditional and conventional way in which this was done. I’m certain that the Chief Justice understands that I am a person who believes in systems of accountability. I’m not intent on treading, trampling or in any way interfering with the independence of the judiciary, but the judiciary is also accountable for how taxpayers’ funds are spent. We want to see an improvement and strengthening in the rule of law and timely justice outcomes and the chief justice will be accountable for this. I can’t be any clearer. Those who want to criticise have the luxury of doing it. I have the luxury of running a country and being accountable to the taxpayers for the results of the systems that we are elected to run.”