Editorial | Choosing judges

If not the smart money, substantial judicial heft is behind Marva McDonald-Bishop to be the next president of Jamaica’s Court of Appeal.

Last week, for instance, Seymour Panton, a former president of the court, unreservedly endorsed Ms McDonald-Bishop’s suitability for the job – a move that, on its face, appeared to be a breach of protocol, but interpreted as a manoeuvre against perceived insurgencies from the political flanks.

“She is a scholar; she is hardworking, and I think she will continue the tradition of ensuring that excellent judgments do come from the Court of Appeal,” Justice Panton said. “I strongly support her appointment and indeed, I’m expecting that she will be appointed.”

Similar ringing support has come from Michael Hemmings, the president of the Cornwall Bar Association, an organisation of lawyers in Jamaica’s western parishes.

Mr Hemmings described Justice McDonald-Bishop as “a brilliant judge, a brilliant mind and somebody who you can approach for guidance in matters”.

This newspaper has no question about Ms McDonald-Bishop’s jurisprudential competence and/or the high qualities she brings to the bench. Indeed, we concur with Justice Panton, with whom she overlapped on the court for a year, about the depth of reasoning in her judgments.

In all probability, Justice McDonald-Bishop would be an excellent president of the court.

Nonetheless, we had hoped that Justice Patrick Brooks’ retirement in a fortnight’s time would have marked an end to the absence of transparency in appointments to high judicial office, and that the concern that Justice Panton seems to harbour of the possibility of someone just being “parachuted into the presidency of our Court of Appeal” would be wholly unfounded.

TRANSPARENT PROCESS

In other words, as this newspaper has advocated in the past, choosing the island’s top judges, especially the justices of appeal and the chief justice of the Supreme Court, should be a decidedly transparent process.

Theoretically, it can still happen, if there is as yet no formal appointment of the new president. It would require a wee bit of creative, constitutional workaround by Prime Minister Andrew Holness, and his willingness to delay the appointment for a month or two, while he puts in place the mechanism for making the selection. That would mean appointing a genuinely acting president of the court for the period – not someone intended to audition for the job, as was attempted with Chief Justice Bryan Sykes six years ago, on his elevation to that post.

In this regard – until the Constitution is reformed, creating new mechanisms for appointing judges and some other key constitutional posts, like the Director of Public Prosecutions and the Auditor General – there isn’t any need for Jamaica to invent a system for itself. We can borrow from the Canadians, who have similar constitutional arrangements for naming judges to their apex court, the Supreme Court, as we have for the President of the Court of Appeal and the Chief Justice.

Fundamentally, that power rests with the prime minister, with minimal oversight or restraint, which at best would be the moral outrage expected of the political opposition, the legal profession, including the judiciary, as well as civil society, if a particularly invidious choice was made.

With respect to appointing a president of the Court of Appeal Jamaica’s Constitution, at Section 104 (1), says: “The President of the Court of Appeal shall be appointed by the Governor General by instrument under the broad seal on the recommendation of the Prime Minister after consultation with the Leader of the Opposition.” It mirrors the language relating to the appointment of the Chief Justice.

Like in Jamaica, in Canada it is the governor general who issues the instrument of appointment to judges. But for those who sit on the highest bench, the Supreme Court, appointments are at the recommendation of the prime minister as head of the country’s political executive.

PREVENT POLITICISATION

However, to prevent the actual or perceived politicisation of the judicial appointment process, and to ensure its transparency, Canada has, with respect to the naming of federal judges, adopted a system that takes the levers from the direct control of politicians.

Under the 1988 arrangement, broad-based judicial advisory committees – made up of civil society representatives, ex-judges, members of the bar and legal scholars – are established to search for, interview and vet candidates for the bench. The minister (and in the case of the Supreme Court, the prime minister) is provided with non-binding recommendations to fill judicial openings. Usually, the candidates are whittled down to three.

The terms of reference of these committees, the application forms for candidate judges, and reports on the outcomes of recruitment exercises for federal judges are on the website of Federal Judicial Affairs Canada.

Additionally, an imminent vacancy is widely publicised, often starting, in the case of the Supreme Court, with an announcement by the prime minister or the attorney general/justice minister that a search is about to begin.

As we have noted before, a similar recruitment process happens for judges of the UK’s Supreme Court. But that mechanism was set out in law, ahead of the 2009 reforms that established the new apex court, to replace the institutional anachronism of House of Lords judges (law lords).

What the Canadians have done is to fashion a system that allows for the recruitment of the best talent for the bench in a way that is transparent and without having had to confront the fractiousness that usually accompanies any attempt at amending the country’s federal constitution. It has also shielded the judiciary from the cut-and-thrust of partisan politics.

It has worked.

The price of that is the prime minister ceding some of his powers to a non-partisan, independent body. Jamaica?