Trevor Munroe | When judges cry, 'We need justice!'
The Gleaner headlines (February 14, 2018) 'Holness backs down' and 'Holness bows to pressure' could well have been 'Holness responsive to citizens' demands: Jamaica's democracy alive .... if not fully well'.
Justice Sykes is to be appointed "in short order". Actions, intended or unintended, which opened the door to political interference with the judiciary, have been renounced, with sincerity or otherwise, by the Government, the Opposition, the judiciary, the Bar, the Church, the trade unions, the private sector, the National Integrity Action (NIA), and citizens of goodwill everywhere.
But what about the public call for the justice system and the judiciary, in particular, to be more accountable? If not to the prime minister, to whom? Again, all are agreed at least in words. The judges' declaration (February 12, 2018) reaffirms: "Judicial accountability to the populace we serve." Section 9 of the Judicial Conduct Guidelines states that "Judges should always be mindful that they are ultimately accountable to the populace whom they serve". Similarly, the Cabinet statement on February 13, 2018, declares, "All arms of Government are accountable to the public."
Unquestionably, however, the public call, supported by NIA, that accountability needs to be strengthened in relation to all arms of the State has justification.
The executive and legislative arms are ultimately accountable to the electors, and each member is subject to the law. However, to strengthen that accountability, the bill providing for "impeachment of public officials", drafted almost seven years ago during the Golding administration, should be dusted off and passed into law.
Judges, in relation to their judicial decisions, are accountable to the higher courts, to the Court of Appeal and, ultimately, to the Privy Council. Section 100 of the Jamaican Constitution sets out how a chief justice and a judge of the Supreme Court can be dismissed.
Regarding the administrative responsibility of the judges, the Blue Ribbon Task Force on Justice Sector Reform (chaired by my late friend and colleague, Professor Barry Chevannes, and including then Chief Justice Lensley Wolfe and then Court of Appeal President Justice Seymour Panton) concluded that one of the "systemic problems" of the justice system was "insufficient accountability and transparency in its 2007 report" (page 15).
Ten years later, few would doubt that advances have been made:
Since 2015, the Court of Appeal publishes an annual report on its website.
For the first time in 2017, the Supreme Court published on its website a comprehensive statistical report on its work.
Sentencing Guidelines "geared towards achieving consistency in judicial approach to sentencing" were launched in December 2017.
In 2014, Judicial Conduct Guidelines were published "in order to safeguard the rights of everyone to justice administered by a fair and independent judiciary". In these guidelines, it is stated: "Judges should endeavour to perform all judicial duties, including the delivery of reserve judgment, efficiently and with reasonable promptness" (page 10).
Despite these advances, all will agree that far more needs to be done:
The Judicial Conduct Guidelines need to be converted into a code of conduct and form part of the letter of appointment for judges. Additionally, an Office of Judicial Complaint needs to be established along the lines of what exist in the United Kingdom and other jurisdictions.
The Sentencing Guidelines, which include, importantly, the normal range of sentences for various offences, need to be periodically reviewed, and a standing Sentencing Council should be established to update the guidelines at stated intervals.
The recommendations of the Justice Sector Reform Task Force to significantly upgrade resources to the justice sector must be implemented "in short order". In this regard, the task force, 10 years ago, called upon "all political parties to publicly commit to a 10-year reinvestment strategy in the justice system ... [and] the Government of Jamaica to set aside an envelope of funding for justice system reform, in addition to an increase in the regular funding for the Ministry of Justice, on an annual basis beginning in 2008 and continuing until at least 2017" (page 24). No one can doubt that this recommendation has been completely disregarded by successive administrations, which have devoted approximately one per cent of the annual Government budget to the Ministry of Justice. Yet, 101/2 years after the task force report identified as a barrier to reform "wholely inadequate resources resulting in deplorable conditions in the courts and lack of material support needed for effective and efficient system" (page 15), in February 2018, the Cabinet tells us "it is well aware and agrees with the judges on the need for greater resources to be allocated to the justice system". Awareness and agreement long ago needs to have been converted into action.
The public can more reasonably hold judges to account to deliver judgments within the recommended three months only if more resources are provided by the executive and the legislature.