Daniel Thwaites | There were ninety and nine
Flogging has been off the books for quite some time now, and it's clear that the judiciary was reluctant to have to legislate from the Bench and reintroduce it on such short notice, and for no less a person than the prime minister. But as the eminent legislator, jurist and executioner, sometimes known as my granny, used to say, "hard ears pickney bite stone", also sometimes known as "who can't hear will feel".
And let's face it, sometimes when a sheep has gone astray, the shepherds have to take some drastic measures to return it to the fold. And that's what happened this week. Ninety and seven judges, in an act of great historical significance, gathered at King Street on February 12, 2018 to call in the lost sheep.
A little clarification on the numbers. The Gleaner reported that it was ninety and seven, but that struck me as suspicious. Mind you, Justice Sykes wouldn't have been present, and neither would Justice Malahoo, so that kind of explains the discrepancy. But ... whatevs! In times like these, we need to look beyond the mere empirical tally and count theologically. Theologically speaking, we know it was ninety and nine, as I will presently demonstrate. For the hymnist, and my same old granny, used to remind us:
There were ninety and nine that safely lay
in the shelter of the fold,
but one was out on the hills away,
far off from the gates of gold
away on the mountains wild and bare,
away from the tender Shepherd's care ...
So the point is that a lost sheep needed redemptive guidance, because he was "far off from the gates of gold - away on the mountains wild and bare".
Anyhow, the judges streamed in from across the island, effectively shuttering the Court of Appeal, the Supreme Court, and the Parish Courts. Let me put it another way: De whole justice system did lock down and nah keep, and y'know, that's a problem, because "wi waan justiss!"
The justices "have found it necessary to publicly register our grave concern regarding some statements made by the Honourable Prime Minister, following the appointment of the Honourable Mr Justice Bryan Sykes to act as chief justice of Jamaica as of February 1, 2018".
What is the result of all this? To get straight to the point: There is blood.
"Lord, whence are those blood-drops all the way
that mark out the mountain's track?"
"They were shed for one who had gone astray
ere the Shepherd could bring him back."
Consider Paragraph #18 from the King Street Declaration on Judicial Independence:
"By his unfortunate comments, the Honourable Prime Minister, the head of the executive branch of the Government and a member of the legislature, has sought to place the head of the judiciary, a separate and equal arm of Government, under his supervision, direction and control, and subject to a process of evaluation by him. This is clearly inappropriate and in breach of the fundamental doctrine of the separation of powers. We ask the prime minister to retract his statements and to publicly acknowledge that the chief justice is not answerable to him."
Sassss Crisssse! Please note "unfortunate comments", "clearly inappropriate", "retract his statements", and "publicly acknowledge". Even if maths isn't one of your strong points, you can check up this invoice and calculate that the Bench is demanding an apology.
They haven't quite got it, but the uncomfortable twisting and turning is worth more than any apology. Remember now, first there was the wrong and strong. The explanation was that this is how it's going to be from now on in the "new and different" dispensation of the next generation, which is ordinarily loosely translated from the Latin for "I don't give a sh** what you think" into Jamaican as "youthful exuberance".
Unsurprisingly, that didn't fly at all, at all. So then came the old "I was misunderstood" explanation, with a volley of apparatchiks sent out to defen' de ting. That didn't work either, which is about when the panic could be seen in their eyes.
Already on the ropes, that's when the judges stepped in with the cat-o'-nine, and it had become clearer than Kartel's skin tone that this had become a five-alarm fire. So the next move saw the PM seeking cover behind his Cabinet, who used the tried-and-true "out of context" defence. Still, no dice. Finally, here comes Minister Delroy Chuck to explain that the whole thing was a mere administrative hiccup.
Ahhhhhh! That's what it was. A mere administrative mishap. Whew!
Look, don't take this the wrong way, but when Malahoo-Forte goes off-script, I don't think anyone is particularly surprised and says to someone else, "That's really out of character!" But when the Honourable Justice Minister Delly Ranx has to get out there firing blanks to hold off the horde of critics, you know the wall has been breached. Cuz he's like a smart guy.
So a word on the propriety of what the judges did, because an argument has surfaced that it was improper. The "be a good likkle boy" criteria for full appointment and security of tenure elaborated by the PM were so offensive that every citizen, and certainly every lawyer worth two shillings, should have objected.
In fact, Jamaica should be proud of its judiciary for unsealing the whip. As the great theorist of the separation of powers, the Baron de Montesquieu (no relation to Bobby, I think), noted: "A nation may lose its liberties in a day and not miss them in a century."
You see, the executive branch of government, attracting as it does the men of ambition and vigour, is not likely to be too respectful of the separation of powers. What they do respect, however, is the power of separation, namely, from their positions and titles. And that's why I fully expect that Justice Sykes will shortly be granted a permanent appointment.
Another thing. Although these developments are critically important from a governance point of view, this isn't a major setback for the PM because most voters don't care too much about this at all. However, his mishandling of the situation is uncharacteristic and a bit mysterious. One just hopes it's not because Justice Sykes refused to sign an undated resignation letter drafted by Arthur Williams. Don't laugh! Stranger things have happened.
- Daniel Thwaites is an attorney-at-law. Email feedback to firstname.lastname@example.org