declaration
on separation of powers,
judicial independence and judicial accountability
judicial independence and judicial accountability
Preamble
1.
We, a group of ninety seven (97) Judges
from the Court of Appeal, the Supreme Court and Parish Courts of Jamaica, 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.
2.
These concerns relate to the Prime
Minister’s explanation of the rationale for recommending an acting instead of a
permanent appointment to the post of Chief Justice.
3.
We wish to make it clear that we do not
speak on behalf of the acting Chief Justice, and are acting independently of
him and without his concurrence in indicating our disquiet.
4.
We make no comment in respect of the ongoing
debate surrounding the question whether the acting appointment of Chief Justice
Sykes is unconstitutional, illegal or otherwise invalid. That is a matter for
adjudication in a properly constituted court, if it should become necessary. We
do not express any views on that issue.
5.
It is however our considered view that
declarations of the Prime Minister relative to the acting appointment
unquestionably have serious implications for the fundamental principles of the
separation of powers and the independence of the judiciary. These are principles
of great jurisprudential value as they form the foundation of our
constitutional democracy and which are critical imperatives for the protection
and preservation of the Rule of Law.
The Administration of
Justice
6.
We state for the record that we welcome
the focus of the Prime Minister on the administration of justice and acknowledge
the concerns he raised about inefficiencies, deficiencies and delays in the justice
system.
7.
We also accept and share the view that much
more needs to be done to achieve timely justice outcomes. We remain committed to the attainment of a
more efficient and effective justice system. One that will serve to strengthen
the Rule of Law.
8.
We accept that, although the judicial
branch of government is independent and should remain so, it is also accountable
to the public. We therefore support any system geared towards enhancing
judicial efficiency and accountability in the pursuit of timely justice
outcomes. However, judicial efficiency and accountability, cannot be achieved at
the expense of judicial independence and the Rule of Law.
9.
Any mechanism employed to achieve efficiency
and accountability must be consistent
with the principles of separation of powers and the independence of the
judiciary. We fear, in the light of
recent developments, that some have lost sight of the crucial need to ensure
that the three arms of Government function together in a way that is
complementary of each other and consistent with the spirit of the Constitution
and the intendment of its framers.
Separation of Powers and
Independence of the Judiciary
10.
It
should be clearly recognised that the safeguards of separation of powers and
independence of the judiciary are not intended for the benefit of the judges
who are the office holders. Rather they
are intended for the benefit and protection of Jamaican citizens and all others
who come within our jurisdiction. For that reason, judges must be free to
enforce the laws of the land, “without
fear or favour, affection or ill-will”, which they are sworn to do.
11.
For
the judiciary to adequately and appropriately perform its constitutional functions
and maintain its authority and legitimacy, judicial independence must be zealously
safeguarded and preserved.
12.
The
doctrine of separation of powers on which the Constitution and our democracy
rests, recognises that the concentration of absolute power in one person, body,
or entity risks the corrosive dangers of corruption, exploitation and
tyranny. As Judges we stand resolute to do
our part in avoiding such an eventuality. There should be no infringement of
the fundamental tenets of our democracy that may, in any way, compromise the functions
of the judiciary as an equal arm of Government, the guardian of the Constitution
and the protector of the rights and liberties of the people of Jamaica and all
who come within our jurisdiction.
13.
We
commend for consideration the wise words of Sandra Day O’Connor, former
Associate Judge of the Supreme Court of the United States of America, that, “…judicial independence doesn’t happen all by
itself. It’s tremendously hard to create, and easier than most people imagine
to destroy...(58 Fla.L. Rev. 1, 2006). She also said “Statutes and constitutions do not protect judicial independence – people
do.” (The Guardian – March 2006).
14.
We
therefore caution that these traditional constitutional principles should never
be circumvented, however noble the intention. While we fully recognize that
there is a need for the Executive to account to tax-payers and international
partners for any investments in the justice system, our accountability, in
keeping with the Constitution is to the public. Everyone in Jamaica, whether in
any of the three branches of Government or a member of the public whom the
three branches serve, is subject to the letter and spirit of the Constitution.
Judicial Accountability
15.
We
urge that the nature and scope of judicial accountability to the populace we
are sworn to serve, should operate in a manner that faithfully preserves the
independence of the Judiciary and the separation of powers. The vital
importance of these fundamental principles was clearly established in the
seminal decision of the Judicial Committee of the Privy Council in Hinds
v the Queen [1977] 1 A.C. 195. There is no room within our
constitutional framework for one arm of government to impinge on the authority
of another.
16.
We
recognise the desirability of the continued modernisation of the judicial
system including possible changes in the way Judges are assigned, continued
focus on efficient criminal and civil case management, the allowance for
scheduled time to write judgments, and the increasing use of technology to enhance
efficiency. It must however be recognised that while we all have to operate
within the constraints of Jamaica’s tight fiscal space, without substantially
increased inputs into the justice system, in terms of the physical stock of
court rooms, additional human resources at all levels and the provision of the
necessary tools utilized within the system, the desirable levels of improvement
cannot be achieved or sustained. This in a context where inadequate investments
in the justice sector has been a feature of successive Governments since
independence.
17.
We
close with the guidance provided by the Commonwealth (Latimer House) Principles
on the Three Branches of Government (2003). “Each commonwealth country’s
Parliaments, Executives and Judiciaries are the guarantors in their respective
spheres of the Rule of Law, the promotion and protection of human rights and
the entrenchment of good governance based on the highest standards of honesty,
probity and accountability.” All three arms of the State should fulfill their
respective but critical roles in the promotion of the Rule of Law in a
complementary and constructive manner.
18.
By
his unfortunate comments the Honourable Prime Minister, the head of the
Executive branch of 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.
19.
Our
concern is heightened as this is against a background of previous statements
made by other members of the executive that have crossed the line of the
separation of powers and have had the effect of undermining the independence of
the judiciary. It should always be remembered that, “Judges are not beholden to
the government of the day.” (Bangalore Principles of Judicial Conduct, 2001).
20.
The
nation’s judges recognize and deeply regret the inconvenience to litigants,
attorneys and members of the public across the island caused by Monday’s
meeting in Kingston. However, in light of the gravity of the concerns and in
the interest of the country’s democracy and justice system, it was considered an
absolute necessity. For those persons inconvenienced, we will endeavour to
ensure their matters are rescheduled for the earliest possible time. Where
necessary we will be sitting for extended periods to achieve this.
King Street
Kingston
February 12, 2018
February 12, 2018
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