Gordon Robinson | Separation of powers vital for equity and justice

While the hot (well, maybe, warm) topic is still constitutional law, this might be a good time to take another look at the constitutional principle of separation of powers from a different angle.

I’ve proposed that the very concept of a justice ministry, with portfolio oversight of the courts (including fixing of remuneration for judges), is directly contrary to the tenets of separation of powers. I’ve tried, in these columns, to explain why the judiciary ought to be as separate from Executive and Legislature as possible and the Office of Chief Justice (CJ) should provide all oversight functions based on a budget voted by government.

I’d expect, in the exercise of those oversight functions, that the CJ would ensure a panel made up of eminent retired jurists, experts in ethics from academic (historians), medical, religious, and spiritual perspectives and maybe one senior (or retired) attorney would deal with any allegations of misconduct, with a view to recommending to the CJ whether any judicial officer should be impeached.

Judicial protection

Judicial independence is too vital a tool of national security to be subject to whims and fancies of the other two arms of government. The brazenness of recent submissions made to the Constitutional Court by the attorney general, that the court should be guided by Cabinet policy, served to highlight the need for judicial protection. Thanks to the all-powerful illusion created for government ministers and agencies by our blind embrace of Westminster, Jamaican governments don’t understand that they don’t have any authority whatsoever over the judiciary. So we must show them.

Chapter VII of the Constitution (Jamaica’s supreme law) provides for the creation of the Judiciary and judges’ tenure.

“97. (1) There shall be a Supreme Court for Jamaica which shall have such jurisdiction and powers as may be conferred upon it by this Constitution or any other law.”

It may sound simple, but it’s important to point out that the Supreme Court’s powers are conferred by the Constitution (or any other law). Obviously, “any other law” may confer additional powers but cannot abridge, abrogate, or restrict powers conferred by the Constitution.

“100. (1) Subject to the provisions of subsections (4) to (7) (inclusive) of this section, a Judge of the Supreme Court shall hold office until he attains the age of seventy years.”

This is the centrepiece of judicial independence. As I’ve postulated ad nauseam, every human has biases, prejudices, leanings, and preferences, including political. If you want a judge without political opinions, get a computer programmed by someone without political opinions. If you prefer systems, you’ll understand that the inability of politicians to fire a judge (no matter who hired him/her) is the assurance to citizens that judges’ legal training will kick in and personal biases discarded when cases are being decided.

Subsection (4):

“A Judge of the Supreme Court may be removed from office only for inability to discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and shall not be so removed except in accordance with the provisions of subsection (5) of this section.”

Subsections (5), (6), and (7) provide that only the governor general (GG) may remove a judge from office if the CJ makes a complaint (or PM complains about the CJ). First, the GG must empanel a tribunal of Commonwealth judges to enquire into the complaint and refer any adverse finding to the Privy Council. Long story short, it’s nigh on impossible to fire a judge. Certainly, no judge need fear a political dismissal.

So, the Constitution sets out a comprehensive process for judicial accountability. My proposals only require that the GG be removed from the process and the CJ substituted. All complaints from any source should be made to the CJ, who then proceeds accordingly. One thing is certain: neither Executive nor Legislature have any place in the concept of judicial accountability. THAT would be highly dangerous.

But our politicians just can’t help themselves. So the new Integrity Commission (IC) Act 2017 described by Parliament as “An ACT to promote and enhance standards of ethical conduct for parliamentarians, public officials and other persons ... and to provide for the establishment of a single body ... The [IC] to promote and strengthen the measures for the prevention, detection, investigation and prosecution of acts of corruption ...”

Elliot-Ness-style

Alrighty then! Looks like we’re getting an Elliot-Ness-style organisation with investigative and prosecutorial powers to clean up all political corruption. But, hold on. What’s this “parliamentarians, public officials, and other persons”? The Contractor General Act had referred only to contracts issued by “public bodies” (defined to exclude individuals). This is wider. Surely, “other persons” can’t include private citizens already subject to police investigation and prosecution? So who?

Surely, this couldn’t include judges, could it? There’s already a constitutional process for investigating allegedly unethical conduct by judges while keeping them protected from political interference or threat. Right?

WRONG!

In the act, “public official” is defined as “any person holding an executive, an administrative, or a judicial office or a parliamentarian …”

WHAT? Somebody must be high! Judges are now to submit annual reports to a body set up by the Legislature authorised to “investigate alleged or suspected acts of corruption and instances of non-compliance with the provisions of this a ct or prosecute acts of corruption and offences committed under this Act” [ s ection 6(1)] with judges as possible targets? Politically appointed individuals with limited security of tenure and, possibly, agendas that could include pet peeves against the judiciary or who might’ve been at the pointy end of a judicial sword must now hold private information about judges that could be used as leverage? Really? Seriously?

TURNS ON ITS OWNER

It’s this sort of misunderstanding of separation of powers, process, and objectives that has, in my opinion, led to a warped evolution of the Office of Contractor General (OCG) over time. As a result, the OCG was converted from an agent of Parliament to monitor and investigate the award of government contracts by other parliamentary agents (public bodies, including parish councils) or ministries into an avenging angel, targeting parliamentarians themselves (and ministers). The watchdog ferociously turns on its owner.

Now that the OCG has been abolished and its functions subsumed within this new IC, with much wider investigatory powers (to include parliamentarians and ministers), there’s likely to be tension in overlapping functions, especially with regard to ongoing OCG “investigations” or incomplete reports. My concerns are that these tensions oughtn’t to be available for public consumption, and the OCG should be allowed to report as it sees fit, after which the chips should fall wherever they may.

Over the years, none of the individually targeted parliamentarians or Cabinet ministers (all incapable of awarding government contracts) was given any opportunity to read and comment on OCG reports before tabling. The law didn’t permit that. No previous OCG report was tabled with comments from individually targeted parliamentarians/ministers attached. Why was it done in the recently hyped report on an Urban Development Corporation (UDC) land deal? Why were Daryl Vaz and Andrew Holness, the latest targets of what, in my opinion, is OCG over-reach, allowed to get in front of the narrative like no previous target was? Will this now become the norm? Or was it a one-off?

Without commenting on reported sale details, all this could’ve been avoided if the investigation’s focus had been limited to the agency awarding the contract (UDC), leaving it to raise a public defence, after the report was tabled, of ministerial interference, if it was so inclined and could produce credible evidence.

I’d expect the UDC to think twice before pointing fingers at the minister because THAT would leave the UDC vulnerable to accusations of abdicating its public duty to kowtow to a minister. So a bureaucratic molehill has become a political mountain because Jamaican authorities misunderstand or ignore separation of powers.

We don’t get it. It’s just this kind of casual, headline-grabbing mindset that tricks legislature or executive into believing that it can step on judicial independence and led to the PM’s “action that brings results will determine the appointment” faux pas.

The OCG’s role was to make Parliament aware of corrupt contract awards so that Parliament could use its oversight powers to protect us from abuse of statutory powers. The Judiciary’s role is to protect us from all governmental abuse. We must insist that the judiciary is also protected.

It’s amazing how hard we fought to protect Caribbean Court of Justice appointees from political interference (still won’t join) but appear to have no problem with politicians treating local judges like their lapdogs. When’ll we mature sufficiently to understand that process and system supersede personal power?

Law, order, and method should be Jamaica’s raison d’être. To build a nation on equity and justice, powers must be separated and roles circumscribed. Convenience is an inconvenient governance tool.

Peace and love!

 

- Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com