Editorial | Choosing judges

There is no doubt, as this newspaper previously asserted, that Marva McDonald Bishop is an excellent jurist.

She is likely to acquit herself well as president of Jamaica’s Court of Appeal, a job to which she was sworn in yesterday, succeeding the retired Patrick Brooks. She is the first female to hold the position.

Indeed, if nothing changes, and with a mandatory retirement age of 70 for judges, Mrs McDonald Bishop will enjoy a long tenure, and, therefore, a great opportunity to influence the direction and development of the court, which, hopefully translates to its transformation into an even better, and a global gold standard, for jurisprudential institutions.

But even as we hold Justice McDonald Bishop to that mission, The Gleaner wishes for something to change. She ought to be the last president of the Court of Appeal, or chief justice of the Supreme Court appointed in accordance with the procedure of the incumbents. Further, these posts should be subjected not only to age, but time and term limits. And the process for appointment to them should be far more transparent.

Indeed, this issue should begin to get serious attention and early on the agenda for constitutional reform, when that process is seriously revived after next year’s general election.

TRANSPARENCY AND TRUST

In the meantime, the Government and the political Opposition, in conjunction with critical stakeholders, should fashion an interim mechanism to address the criteria for transparency and trust, in the event that the need arises to appoint top judicial officers before the constitutional process is completed.

The next choice, after all, may might not be a Marva McDonald Bishop, around whom there is consensus.

Under Jamaica’s existing Constitution, both the chief justice and the president of the Court of Appeal are appointed by the governor general on the advice of the prime minister, after consultation with the leader of the Opposition. Fundamentally, it’s the prime minister’s choice.

Other judges are appointed by the governor general on the advice of the Judicial Services Commission (JSC). While the prime minister has no direct say in these appointments, and Jamaicans have had no cause, now or in the past, to question the integrity of these commissions, the constitutional power of the prime minister to choose the majority of their members gives him a vicarious opportunity to influence their actions.

Apart from the chief justice and the president of the Court of Appeal, who represent independent arms of the government, the Judicial Services Commission has four other members: the chairman of the Public Service Commission (PSC) as an ex officio member, and three others, who are expressly proposed by the PM. The chair of the PSC is appointed to that post by the prime minister.

These arrangement have, up to now, worked reasonably well, except for the 2018 hiccup of Prime Minister Andrew Holness’ purported attempt to place the current chief justice, Bryan Sykes, on probation, to assess how he performed before giving him the job on a permanent basis. Mr Holness quickly backtracked from this apparently unconstitutional move in the face of an uprising by the Bench and wide-scale public outcry.

More recently, the unusual full-throated public endorsement of Mrs McDonald Bishop by at least one former judge and other members of the bar, as well as other less public declarations of support, was interpreted as a move to head off a possible parachuting of someone from outside the judiciary into the job.

OPEN TO COMPETITION

This newspaper has no fundamental objection to someone, who isn’t a member of the Jamaican Bench, but is appropriately qualified, being made either chief justice or president of the Court of Appeal. However, the process for any of those jobs, or any judicial post, must be transparent and open to competition.

That is why, until the system is reformed, The Gleaner previously proposed the adoption of Canada’s approach to choosing and appointing top judges, as a workaround to current constitutional constraints.

Canada has a constitutional arrangement similar to Jamaica’s for the appointment of its top federal judges. But to get around perceptions of, or potential for, the politicisation of the exercise, it has since employed the mechanism of broad-based judicial advisory committees – made up of civil society representatives, ex-judges, members of the bar and legal scholars – to recruit, interview and otherwise vet candidates for the bench, including the Supreme Court – its apex court.

After that process, the minister (which in the case of the Supreme Court is the PM) is provided with non-binding recommendations to fill judicial openings. Usually, three candidates are on the list.

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 public and easily accessible information.

Further, imminent vacancies for judgeships are announced and widely advertised, such as happened this week in this newspaper for the Caribbean Court of Justice (CCJ).

A similarly transparent approach takes place with respect to appointments to the UK’s top court, the Supreme Court. But Canada’s system is a potential short-term model for Jamaica, given the constitutional constraints.

Regarding a long-term arrangement, Jamaica should take a close look at the governance arrangements of the CCJ, the world’s most insulated court.