Peter Espeut | Independent appointments in our republic

One of the huge disadvantages of an absolute monarchy is that the sovereign appoints whoever he wishes to any post in his government, producing what is effectively a crony government. The monarch is thus able to effectively impose his will: he makes all the laws, he is supreme judge in all legal matters, and he has full executive power to run the country.

If he is a benevolent dictator, then he will seek to rule for the good of his subjects; but if he is not, he will pass laws and adjudicate for his own benefit and the benefit of his cronies. Over the centuries this approach to governance has been rejected, and there are very few absolute monarchs left in the world.

Western countries have developed benevolent democracies which seek to achieve the ideal of government “of the people, by the people, and for the people”. To prevent new dictators from emerging, the powers of government have been split into three branches – one passing the laws (the legislature), one adjudicating based on the laws (the judiciary), and the third administering the country according to the laws (the executive); each branch of government has the responsibility of watching over the other two, implementing a system of checks and balances.

The legislature can pass a vote of no confidence in the executive, while the executive can dissolve the legislature. In Jamaica we do not have a real system of separation of powers, as the executive (the cabinet) is exclusively composed of members of the majority party in the legislature (the two houses of parliament), while legislation is almost exclusively introduced by the executive branch, which applies a “whip” to ensure that its parliamentary majority enacts it. In reality, the legislature is ruled by the executive.

The really independent branch of the Jamaican government is the judiciary, which has the power to overturn legislation enacted by the legislature (ruling it as unconstitutional), and the courts also have the power to judge that members of the legislature or the executive have broken the law, and to penalise them. It therefore is crucial that persons appointed to the judiciary are not closely connected with either the executive or the legislature, for this may bias their legal judgments and create a conflict of interest.

APPEAR TO BIAS

Equally of concern is that the source of their appointment may APPEAR to bias their legal decisions; this is why the dictum of UK Lord Chief Justice Hewart is so fundamental: “it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”. In the same judgment, Justice Hewart went on to say that “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice”.

Therefore, neither the executive nor the legislature must be directly involved in the appointment of members of the judiciary – and especially of the chief justice – as this might set up the appearance that the appointee is beholden to the appointer; which might give the appearance of bias should the appointee ever rule in a legal judgment in favour of the appointer.

In Jamaica we have not found a wholly satisfactory way for the government to appoint members of the judiciary, especially the chief justice. What we have done for judges is to ask the governor general (GG) – himself appointed by the prime minister (PM) – to appoint a Judicial Services Commission (on the advice of the PM) which then sources and selects the judiciary. This proxy arrangement creates the appearance that judges are not appointed by the executive branch of government, but only the appearance. As we claim to be seeking to reform our constitution, one expects fulsome public discussion on how we could create a real arm’s-length arrangement for the appointment of judges. So far, we wait in vain!

In the case of the chief justice, there is no pretence: it is the PM directly – not the Judicial Services Commission he nominates – which makes the recommendation to the GG. Surely this monarchical arrangement which is in our present Constitution violates the principle of the Separation of Powers, and should be replaced. Surely in a real republic, the PM should not have such direct control over the judiciary.

When the post of chief justice last became vacant, our present PM recommended to the GG that only a temporary appointment be made so that he could evaluate the performance of the chief justice, to determine whether he would be appointed permanently. This created the appearance that the PM was seeking a compliant chief justice, which breached the fundamental principle of the independence of the judiciary. Should the chief justice ever make a ruling which favours the government, justice will not appear to be done.

Which brings me to the Caribbean Court of Justice (CCJ). Whereas the judges in the CCJ are appointed by a Regional Judicial and Legal Services Commission (named by the PMs of the region), the president of the CCJ is directly appointed by the prime ministers of the region.

In my view, this arrangement is wholly unsatisfactory, and not sufficiently arm’s-length from regional politicians. Its method of appointment (especially of the president) does not make it – in reality – independent of regional politicians. Should the CCJ ever make a ruling which favours a government over its citizens, justice will not appear to have been done. The Judicial Committee of the Privy Council in London does not suffer from this disability.

Yes, we want to complete the process of decolonisation; I understand the emotion. But until we can solve the problem of how the nation can appoint judges independent of the wishes of monarchical PMs, I believe we are better off with the Privy Council as Jamaica’s final court of appeal. The PNP are on the wrong track, and are part of the problem.

BUILDING THE KINGDOM

I understand that the minister of legal and constitutional affairs traced me off in Parliament on Tuesday, saying that “he will not succeed in bringing anyone to Christ with such an ungodly, un-Christlike approach”. Well, I am certainly a failure where she is concerned!

I love my country which the Lord has made and given to us as our home, and I have an obligation to work hard to build God’s kingdom. The Lord must be the only monarch here, and I cannot remain silent and let Jah kingdom go to waste.

The Rev Peter Espeut is a sociologist and development scientist. Send feedback to columns@gleanerjm.com