DECLARATION ON SEPARATION OF POWERS, 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 Ministerʼs 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 OʼConnor, former Associate Judge of the Supreme Court of the United States of America, that, “…judicial independence doesnʼt happen all by itself. Itʼs 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 Jamaicaʼs 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 countryʼs 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 crossedthe 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 nationʼs judges recognize and deeply regret the inconvenience to litigants, attorneys and members of the public across the island caused by Mondayʼs meeting in Kingston. However, in light of the gravity of the concerns and in the interest of the countryʼs 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