Piotr Espeut | Independent appointments in our republic | Comment

One of the huge disadvantages of an absolute monarchy is that the sovereign appoints whomever he wants to any position in his government, effectively creating a government of crony people. The monarch can therefore effectively impose his will: he makes all laws, is the supreme judge in all legal matters, and has full executive power to run the country.

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

Western countries have developed benevolent democracies that strive to achieve the ideal of government “of the people, by the people, and for the people.” To prevent the rise of new dictators, the government’s power was divided into three branches – the one that passes laws (the legislature), the one that decides on the basis of laws (the judiciary), and the third one that governs the country in accordance with the law (the legislature). executive); each branch of government has the responsibility to watch over the other two and implement a system of checks and balances.

The legislative branch may pass a vote of no confidence in the executive branch, while the executive branch may dissolve the legislative branch. In Jamaica we do not have a true system of separation of powers because the executive (cabinet) is composed entirely of members of the majority party in the legislature (the two houses of parliament), while legislation is introduced almost exclusively by the executive branch, which uses a “whip” to ensure its adoption by the parliamentary majority. In fact, legislative power is exercised by the executive branch.

The truly independent branch of the Jamaican government is the judiciary, which has the power to strike down legislation passed by the legislature (declaring it unconstitutional), and the courts also have the power to find that members of the legislature or executive have broken the rules of law and punish them. Therefore, it is important that persons appointed to judicial positions are not closely associated with either the executive or the legislative power, as this may influence their legal judgments and create a conflict of interest.

SEEMS WHITE

Equally disturbing is that the source of their nominations may APPEAR to influence their legal decisions; that is why the saying of the British Lord Chief Justice Hewart is so fundamental: “not only is it of some importance, but it is of fundamental importance that justice not only be done, but that it should be seen and undoubtedly seen that it has been done.” In the same judgment, Justice Hewart further stated that “no action should be taken that would give rise to even a suspicion that there has been improper interference with the course of justice.”

Therefore, neither the executive nor the legislature can be directly involved in the appointment of members of the judiciary – and in particular the chief justice – as this could create the impression that the appointee owes an obligation to the appointor; which could give the appearance of bias if the appointee ever made a legal ruling in the appointee’s favor.

In Jamaica, we have not found a fully satisfactory way in which the government could 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 establish a Judicial Service Commission (on the advice of the Prime Minister), which then recruits and selects judicial staff. This arrangement of proxies creates the impression that judges are not appointed by the executive, but only give the impression that they are. As we say we are seeking to reform our constitution, we can expect a heated public discussion about how we could create a truly independent judicial appointment agreement. So far we are waiting in vain!

In the case of the President of the Supreme Court, there is no point in pretending: it is the Prime Minister directly – and not the Judiciary Committee nominated by him – that issues the GG’s recommendation. Certainly, this monarchical arrangement in our current Constitution violates the principle of separation of powers and should be replaced. Certainly, in a true republic, the prime minister should not have such direct control over the judiciary.

When the position of Chief Justice became vacant recently, our current Prime Minister recommended to the GG that only an interim appointment be made so that he could assess the performance of the Chief Justice and determine whether he would be appointed permanently. This created the impression that the Prime Minister was seeking a compliant court president, which violated the basic principle of the independence of the judiciary. If the chief justice ever rules in favor of the government, it will not appear that justice has been served.

Which brings me to the Caribbean Court of Justice (CCJ). While CCJ judges are appointed by the Regional Commission for the Judiciary and Legal Service (appointed by the region’s prime ministers), the president of the CCJ is directly appointed by the region’s prime ministers.

In my opinion, this solution is completely unsatisfactory and is not based on sufficient distance on the part of regional politicians. The method of appointment (especially the president) does not make it – in fact – independent of regional politicians. If the CCJ ever issues a ruling that favors the government over the people, it will not appear that justice has been served. The Judicial Committee of the Privy Council in London does not suffer from this disability.

Yes, we want to complete the decolonization process; I understand emotions. But until we solve the problem of how the nation can appoint judges independent of the wishes of monarchical prime ministers, I believe it is better for the Privy Council to be Jamaica’s final court of appeal. The PNP is on the wrong track and is part of the problem.

KINGDOM BUILDING

I understand that the Minister of Legal and Constitutional Affairs tracked me down in Parliament on Tuesday, saying that he “will not succeed in bringing anyone to Christ with such an ungodly, unChristian attitude.” Well, I’m certainly a failure when it comes to her!

I love my homeland, which the Lord created and gave us as our home, and I have the obligation to work hard to build the kingdom of God. The Lord must be the sole monarch here, and I cannot remain silent and let Jah’s kingdom go to waste.

Reverend Peter Espeut is a sociologist and development scientist. Send your feedback to [email protected]