Editorial | Avoid judicial trespass

Folks shouldn’t be too harsh on Floyd Green. He meant well. He may just have been badly tutored, or the recipient of bad examples, on the separation of powers.

Given Mr Green’s capacities, that is nothing that a short treatise on the subject – like the one delivered by the judiciary this week – oughtn’t to have cured. It is important, though, that Mr Green, and indeed other members of the executive, don’t again fall into error in marking out their roles in relation to those of the judiciary.

It would probably be useful in the circumstance that the justice minister, Delroy Chuck, and the legal and constitutional affairs minister, Marlene Malahoo Forte, organise a tutorial on the subject for the Cabinet. The attorney general, Derrick McKoy, who previously taught law at The University of the West Indies, Mona, would be especially helpful in this exercise.

But in between disentangling the conceptual divide between the political executive and the judiciary, Minister Green might also pay attention to what usually is the most efficacious deterrent to crime. That, for the most part, doesn’t start with the harshness of the sentence, but rather the relative certainty of lawbreakers being caught, brought to justice and made to pay for their crimes. Which doesn’t happen much in Jamaica, especially with respect to praedial larceny.

MAJOR PROBLEM

Indeed, the theft of agricultural produce is clearly a major problem for farmers who are estimated to lose up to a fifth of their output to thieves each year, valuing as much as J$8.5 billion. Generations of agriculture ministers have struggled with the problem without achieving a lasting breakthrough.

Last week, Minister Green invoked one of the regular complaints of people in his job for the persistence of stealing from farms: judges are too lenient with those who come before the courts. So, the minister proposed to invite judges to what could only be perceived as a telling off or dressing down, presumably for failing to properly apply the law, while being put straight on the facts of life of the effects of farm theft.

“One of the things we are going to do is to have a retreat for our judges,” Mr Green told farmers in the northern parish of St Ann, “We want to walk our justices through agriculture and the Agricultural Produce Act so they can appreciate the level of losses our farmers have been experiencing at the hands of criminals. Sometimes, having that first-hand knowledge is the best and most effective way of addressing the problem.”

Mr Green’s obvious faux pas might have been politely ignored, seen as a consequence of naivete and his willingness to do good. But the judiciary’s response, this newspaper suspects, was grounded in history and a concern that left unchallenged the notion that judges can be directed by politicians could become ingrained in the executive and corrosive to the notion of separation of powers. That, ultimately, would be dangerous for the independence of the courts.

“[T]he executive arm of government does not determine what type of judicial education is appropriate for judges,” the judiciary reminded in a statement issued at the start of the week.

The role of the judiciary, the statement noted, was to interpret and apply laws passed by Parliament. In determining innocence or guilt judges proceed on the basis of evidence presented in court, not the losses suffered by farmers.

“The independence of the judiciary is a non-negotiable aspect of our democracy and must be guarded zealously,” the statement said.

This newspaper agrees!

BACKGROUND NOISE

In the judiciary’s clarion declaration of independence, we discern background noise from the time of Chief Justice Bryan Sykes’ 2018 appointment to the post and Prime Minister Andrew Holness’ attempt, contrary to Jamaica’s constitution, to have Justice Sykes initially act in the job so that he could prove himself. The judiciary revolted. Mr Holness quickly relented.

There are perhaps echoes, too, from the 2020 haranguing of the judiciary by Attorney General Malahoo Forte, as she was then, because judges were ostensibly ruling outside the law.

She said, “There is just a worrying trend that I see in respect of some rulings coming out of the court when the law should be the guiding approach to be taken ... I have seen many cases that have come back to me in the chambers, where what the law says is put aside, both procedurally and sometimes substantially, and matters are determined now.”

Since that declaration, the prosecution has been given the right of appeal in criminal matters on points of law and in the event of egregiously soft sentences. That, presumably, is available to Mr Green.

But first, criminals, including those engaged in praedial larceny, have to be caught and brought before the courts.

The government would, in relation to praedial larceny, enhance effectiveness if it finally – after more than two decades of having the law – establishes the corps of agricultural wardens, a kind of auxiliary to the police to pursue farm thieves.