Wednesday, Dec 12, 2018
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Ambitious lawyers stir up trouble over Supreme Court

Dear Editor,

In his play “Macbeth”, William Shakespeare told the story about how unbridled ambition on the part of politicians often leads to their ruin. It can cost the best and the brightest to get ahead of themselves or, to use the native vernacular, to ‘smell dey self’.

We have a tempest in a teacup brewing over the fact that there is a job opening at the top of the judicial branch of government. For all sorts of reasons smart people have been piling on the prime minister pressuring him to name a chief justice.

But while there is an opening for chief justice (CJ), the post is not vacant as some would imply. Last November the PM appointed an acting chief justice, who, for all intents and purposes, is discharging the duties of the office.

There is no constitutional or existential crisis because of this opening. In fact, the purportedly learned people piling on the PM ought to know that the constitution deals with this very matter.

The Supreme Court and the office of chief justice are established under Article 93 of the constitution. Article 94 stipulates that the chief justice shall be appointed by the governor general on the recommendation of the prime minister after consultation with the leader of the opposition.

Article 95 says that if the post becomes vacant the prime minister must name someone to act until such time as the governor general appoints a new CJ on the advice of the PM after consultation with the leader of the opposition. The PM has named such a person, and that person has been duly appointed by the governor general.

A substantive chief justice is not essential to the maintenance of a free and fair judiciary. As former Chief Justice Dame Joan Sawyer succinctly pointed out, the justices of the court function without recourse to the chief justice.

One can only speculate on the motives awash in the Bar Association. It did come across as somewhat of a condescending lecture by lawyers to our first non-lawyer prime minister. They attempted to “mansplain” the subtleties of the high court to someone they viewed as a neophyte.

It could be construed that these robed counsellors were trying to shame the PM into moving the pawns, knights, rooks, bishops and queen on the judicial chessboard.

As any chess player knows, although the king (i.e. the prime minister) is the most powerful piece in the game, he is hardly an aggressive member. Those rooks presently and formerly at the bar simply overplayed their hand.

Even a sitting Cabinet member (the state minister for legal affairs no less) forgot that it was his job to defend the king. He went off script and publicly upbraided Dr. Minnis for moving too slow to name a chief justice.

This was a jaw-dropping rookie move that could have gotten him ejected from the game, but the king was gracious and magnanimous. This errant minister’s swift and forthright mea culpa did help him wheedle his way back into the palace.

As with the game of chess, the appointment of a chief justice could leave open any number of squares on the board. Perhaps a Cabinet-level position could be in play. And some self-serving lawyers may be jockeying to get their candidates into high position.

What the legal fraternity ought to be pushing for is more public resources to enable a new chief justice, when appointed, to dispense justice more efficiently. That could mean putting the full complement of 12 justices on the bench.

They could also help explain to the public why we need a constitutional amendment to extend the retirement age for justices from 65 to perhaps 75. People are living longer today than they were 45 years ago when the constitution was written. And we, in essence, have a brain drain at the top, as justices who are fit in both mind and body must leave the bench because of this statutory age wall unless given an extension to serve for two more years until age 67. The retirement age for justices in England and Wales is 70. In Canada it is 75.

Our Jamaican family just had a bit of a kerfuffle over the appointment of a chief justice there this year. Their prime minister, Andrew Holness, a spritely 45-year-old, took heat for naming an acting chief justice. Only in his mind the “acting” referred more to a probationary period as opposed to holding the post temporarily, like we do here.

Said Holness he was from a different age and his way of thinking may not always coincide with those who hold traditional views. Sounds like he and Dr. Minnis are cut from the same cloth, despite the 20-year age difference.

The whole brouhaha got the Jamaicans talking seriously about increasing their retirement age for judges from 70 to 75.

Cooler heads will prevail at the Minnis Cabinet table, and we will muddle through this without a threat to the independence of our judiciary. The plotters and the Lady Macbeths who lurk in the halls of power should heed the counsel of Shakespeare: “Vaulting ambition overleaps itself.”

 

– The Graduate

 

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