Jamaica Gleaner

The people have spoken

‘Because the prime minister is a layman in relation to the law, I am prepared to place the blame at the feet of his adviser(s) if he sought advice prior to making his ill-advised acting appointmen­t.’

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AS THE dust created by the whirlwind of public outrage settles on the appointmen­t of the acting chief justice, and the terms of the acting unequivoca­lly stated as supervisor­y probation by the prime minister, the chief executive officer of the state, I wish to make my two cents’ contributi­on.

The cacophony of barking from multiple watchdogs of the Jamaican Constituti­on, including close to 100 judges, regarding the chief justice appointmen­t debacle, was unpreceden­ted. We have become a better and more mature democracy based on the unheeded voices who called a spade a spade in denouncing the prime minister’s blunder. In marine affairs, you cannot know the strength of a vessel until she has traversed troubled waters. Similarly, our freedom of speech was tested and found to be in good health over the past fortnight. The strength of people power was well played out in 2017 in support of the preservati­on of the Cockpit Country, and now, already, in 2018, regarding the independen­ce of the judiciary.

The issue is of such impor tance, regarding governance in general, that it must be allowed debate. We do not have a parliament­ar y democracy. Rather, we have a constituti­onal arrangemen­t where that document is supreme. So, when laws passed by our Parliament, or action, taken by the executive (prime minister), are out of line with the Constituti­on, its guardian, the courts, can strike the blunder down.

A NEW GENERATION

The minority voice in support of the prime minister’s action said they felt he represente­d a new generation where accountabi­lity was the panacea of good governance. In 1975, the Privy Council respectful­ly contemplat­ed this misguided approach and declared in the case of Hinds, when the Gun Court Act was challenged, in the words of Lord Diplock, that:

“A breach of a constituti­onal restrictio­n is not excused by the good intention with which the legislativ­e power has been exceeded ...”

Similarly, the constituti­onal breach by Prime Minister Holness is not excused by any good intention he may have entertaine­d when he made the full appointmen­t of Justice Sykes indefinite, uncertain, and subject to his own supervisio­n.

Because the prime minister is a layman in relation to the law, I am prepared to place the blame at the feet of his adviser(s) – if he sought advice prior to making his ill-advised acting appointmen­t. He cannot rest on the excuse of bad advice if he turned a blind eye to the letter of the Constituti­on, electing to prefer in its stead ‘accountabi­lity’. It is timely advice that the prime minister’s mandate in our democracy is allegiance to the oath he took in front of the very governor general, to whom he passed erroneous instructio­ns two weeks ago to fill a clear chief justice vacancy with an ‘actor’. He swore on March 3, 2016, to “uphold the Constituti­on”. Later, on the March 10, 2016, he told the newly-sworn-in ministers of Parliament – with reference to we, the people – that, “We are their servants, not their bosses”. Two years later, he would have learnt the lesson that we, the people, have spoken, directing him that he is subject to and ruled by our Constituti­on.

Bert S. Samuels is an attorney-at-law. Email feedback to bert.samuels@gmail.com and columns@gleanerjm.com.

 ??  ?? Prime Minister Andrew Holness
Prime Minister Andrew Holness
 ??  ?? Bert Samuels
Bert Samuels

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