Tue | Dec 18, 2018

Editorial | More waffle on Justice Sykes

Published:Friday | February 16, 2018 | 12:00 AM

P J Patterson, a former prime minister of Jamaica, offered the current incumbent, Andrew Holness, valuable advice recently at the height of the controversy over his appointment of Brian Sykes as the acting chief justice in a context where a clear vacancy exists. Prime ministers, Mr Patterson suggested, need to learn the art of admitting errors and of dignified retreat. For, prime ministers, too, make mistakes.

We are not sanguine that either Mr Holness, or his justice minister, Delroy Chuck, received Mr Patterson's wisdom, or if they did, did so with either grace or acceptance. Subsequent statements by the Cabinet and Mr Chuck give cause for doubt.

Judges in Jamaica, including the head of the judiciary, the chief justice, are constitutionally required at age 70 to retire. So, anyone who needed to know, and especially the Government, would have been aware that the former chief justice, Zaila McCalla was bound to leave her post on the 70th birthday on January 31. A successor, therefore, had to be named.

Mr Holness chose Justice Sykes - but in an acting capacity. He said that, "action that brings results will determine the assumption of the role of chief justice (by Mr Sykes)". Not unexpectedly, the acting appointment and the prime minister's statement, read together ignited public outrage.

Justice Sykes, it seemed obvious, was being put on a dog and pony show and could claim the prize based on how well he strutted his stuff. The problem here is that security of tenure of judges is sine qua non to the independence of the judiciary and the concept of the separation of powers between this arm of government and the executive/legislature.

Mr Holness' statement, in that context smacked at an attempt to interfere with the independence of the judiciary, which he roundly rejected. But when challenged on his approach to the Justice Sykes' appointment, doubled down. His logic was that he was young and different; that his approach was "indeed a break from the traditional and conventional way in which this (appointing a chief justice) was done". He had no apology.

In the face of the public outcry, nearly 100 judges took a day off from the courts to discuss the issue among themselves. They, thereafter, issued an unprecedented public statement of concern over potential Government treading on the separation of powers.

The Cabinet subsequently issued its own statement claiming that the prime minister's remarks had been, "taken out of context and used to create a non-existent threat to the independence of the judiciary".

There are reasonable grounds to question the constitutionality of naming an acting chief justice in circumstances where it is not required to fill the post in emergency, short-term basis when the incumbent may be indisposed or a declared nominee may not be immediately available to assume the job. Further, the administration, not least among its members, Mr Chuck, should have been aware of the inherent danger to the principle of separation of powers of having someone acting in the chief justice's post to the backdrop of the prime minister's statement.

Indeed, even if the attorney general Marlene Malahoo-Forte was not seized of these principles we expected that Mr Chuck would have been, and so advised Mr Holness. That is why this newspaper is extremely surprised at Mr Chuck's explanation that consensus around Justice Sykes' candidacy developed only in late January and therefore time did not allow for the administrative processes for his permanent appointment. Chief justices, whether permanent or in acting positions, are formally appointed by the governor general, under the Broad Seal. Nothing more was needed to be done administratively, but for the changing of a few words in a declaration of appointment, to make Justice Sykes' job permanent. Which should happen immediately.