Flirting with a constitutional crisis

IF IT wasn’t a misplaced attempt at humour, maybe it is that Delroy Chuck, the justice minister, in a moment of confusion, displayed a temporary lapse of cognition. So, he couldn’t remember the tenets of the Westminster model of Cabinet government and the concept of collective responsibility.

That would explain Mr Chuck’s argument, to this newspaper and others, that the matter of judges’ salaries was now in the hands of the Cabinet and was now the purview of the finance minister. As though Finance Minister Audrey Shaw is apart from the collective of ministers that meets on Mondays to decide government policy.

Should Mr Chuck need to be reminded, this is what Jamaica’s Constitution says at Section 69 (2): “The Cabinet shall be the principal instrument of policy and shall be charged with the general direction and control of the Government of Jamaica and shall be collectively responsible, therefore, to Parliament.”

This is important as the Government of Jamaica, directed by the Cabinet, of which Mr Chuck is a member, is flirting with a constitutional crisis, about which the justice minister is seemingly blasé and the Government, generally, seems in no hurry to attend to.

Section 101 (2) of the Constitution commands that the salaries of judges of the Supreme Court, which is established at Section 97 (1), “shall be charged on and paid out of the Consolidated Fund”. The same applies to judges of the Court of Appeal at Section 107 (2).

The process for determining what those salaries and emoluments should be is set out at Section 4A (1) (a) and (b) of the Judiciary Act. Every three years, within six months of the start of the financial year, or earlier, if expedient, the minister is to establish a commission to review, and make recommendations on, the pay of justices. That report is to be tabled in Parliament, and, if not voted down, implemented by the finance minister.

The last such review was completed 18 months ago, in December 2015, to cover the financial years 2015-16, 2016-17, and 2017-18. The last time Jamaica’s judges received a basic salary hike was in 2014, but that was two years overdue. The Government has delayed paying because of the size of the bill when the cost of groups, whose salaries are linked to those judges, is taken into account.

CONFLICT OF INTEREST

Judges are now restive and have anonymously made it known that some of them, if not as a class, are considering filing a case against the Government, seeking redress. The question is, where is such a case filed?

If it were in the Supreme Court, it raises the issue of the justices being judges in their own cause. For even if the matter was raised by an individual judge, there would seem to be inherent conflict of interest. If, as the judges suggest, they might go directly to the Privy Council, the process for clearing that legal hurdle is not immediately clear.

This, perhaps, explains why Mr Chuck seems so unflustered by the development: Who is to hear the judges’ case?

Yet, this possible collision of two of the three critical arms of Government, in our view, is potentially dangerous and ought to be avoided. Judges, as an independent arm of government, are, as Mr Golding, the shadow justice minister, suggests, not expected to be above the daily political hurly-burly of the State. Instead, they are caught in a tussle between the executive and its related legislature, whose laws the courts are to independently interpret.

It is a battle that could grow nasty, which the Government, on the wrong side of the issue, should seek, with urgency, to avoid.