Peter Espeut | The fiction of impartiality

“It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”

Gordon Hewart, 1st Viscount Hewart (1870-1943), Lord Chief Justice of England (1922-1940), in his judgment The King v. Sussex Justices (1924).

I am not sure that the legal principle quoted above is widely held by politicians of any stripe in modern Jamaica.

I cannot think of a time in post-Independence Jamaica when there has been even the pretence at impartiality in the appointment of boards of management of state agencies. Every time the government changes, the convention is that all state boards resign to allow the new government to appoint their supporters to the plum positions.

To me, this breaches Lord Hewart’s dictum stated above. How could appointing your friends – qualified or not – to state boards be justice? Only the best and most qualified persons should be appointed. And they must serve in the best interests of Jamaica, not their party – or themselves.

It is expected that the party in power will appoint its partisans to key positions: the Governor General, the Chief Justice, the Chief of Defence Staff, the Commissioner of Police, the Director of Public Prosecutions, and so on. For some of the above, appointment to the position is in the gift of the Prime Minister (PM); the language of the Constitution may require him to “consult” the Leader of the Opposition (LOTO), but this does not mean that the PM has to take into account anything the LOTO may say.

Often the fiction of an “independent” decision is promoted when the appointment is made by the Governor General (GG) “on the advice of the Prime Minister”. Why bother! The hand is the hand of Esau, but the voice is the voice of Jacob.

DEEPER FICTION

A deeper fiction of independence and impartiality may be contrived when a recommendation is made to the GG by a “services commission” (e.g. the Judicial Services Commission which recommends judges, or the Police Services Commission which recommends police officers for promotion); a majority of Commission members are named by the ruling party, and a minority by the party in opposition. Ultimately, the preferred candidate of the ruling party is recommended to the GG, who invariably makes the appointment without demurral. Admittedly there is some (meaningless) distance between the PM and the appointment, but to conclude that the appointment is independent and impartial is naïve at best and dishonest at worst.

Procurement procedures can be easily manipulated such that the government’s paisero gets the job or the government contract; competing bids may be arbitrarily disqualified, or preferred applicants may have a soft interview, while unpreferred applicants may be grilled until they crack-up. The government will always be able to say that “the standard procedure was followed”; that sort of statement is a smokescreen.

At least when there must be agreement between the PM and the LOTO the appointment will not be one-sided; but bipartisan agreement is not the same thing as an impartial agreement; for example, both parties could agree to appoint a benign investigator to the Integrity Commission who will never uncover any corruption, or a friendly prosecutor who will never prepare a successful case against an agent of the state.

Again, it seems to me that with these arrangements, justice will never be done or be seen to be done. It was the Greek storyteller Aesop (ca. 620-564 BC) who 2,500 years ago said that “we hang petty thieves, and appoint the great ones to public office”. The more things change, the more they remain the same.

The Westminster system works for the United Kingdom because the Monarch cannot be manipulated by the British PM in the way our PM can manipulate the GG; and all the members of the House of Lords are not beholden to the political parties the way our Senate is. And the civil service in the UK is selected on merit, is independent and non-partisan, and remains across administrations. Westminster also adheres to an unwritten code of values and ethics which guides its operations; MPs actually have shame and resign when caught in malfeasance. Not so in bastard Westminster.

NOT WORKING

The bastardised version of Westminster we practice is not working for us, and the politicians on both sides who control the system seem unwilling to reform our constitutional arrangements to allow substantial mechanisms of accountability to be put in place.

After more than 60 years of political independence we have not been able to get our politicians to even sign on to The Seven Principles of Public Life (also known as the Nolan Principles), never mind to adhere to them. The political ombudsman has been neutered, and many Jamaican politicians are in revolt against the Integrity Commission, and wish to have its decisions declared null and void, and the Act repealed.

And we have not been able to agree on a mechanism to make impartial appointments.

One approach might be to empower civil society to get more involved in governance, but this might actually work, which does not suit those in politics for private gain. The sections of civil society which seek to defend democracy and human rights must therefore be vilified. Jamaicans for Justice is accused of defending criminals against the police; National Integrity Action is accused of supporting the opposition; environmentalists who support sustainable development are accused of being anti-development.

The judicial branch remains the last bastion against dictatorship, and so far the courts have disallowed several attempts at state overreach. We need to test some of these things in court!

Jamaica’s democracy survives because of the basic decency of some in the face of malfeasance. Any decent person who finds himself or herself in a situation where justice appears to be compromised, will know the decent thing to so; and they will be respected for it. Otherwise, they become part of the problem.

Peter Espeut is a sociologist and development scientist. Send feedback to columns@gleanerjm.com