Tue | Dec 11, 2018

Don Foote | Judges’ protest misguided patriotism

Published:Wednesday | February 21, 2018 | 12:00 AM
File Governor General Sir Patrick Allen (right) observes as Justice Bryan Sykes takes the oath of office during a ceremony at King’s House. The judges' protest and declaration last week will test Justice Sykes' ability to rein in the revolutionary wing of jurists, writes guest columnist Don Foote.

JUDGES are called 'my lords', but they are not my GOD. Only GOD is infallible. Judges err and are not beyond reproach. There is a difference between the rule of law and the rule of judges in a democracy.

1. The Gleaner of Tuesday, February 13, 2018, reads: "DECLARATION ON SEPARTION OF POWERS, JUDICIAL INDEPENDENCE AND JUDICIAL ACCOUNTABILITY" purportedly emanating from: "a group of 97 judges of the Court of Appeal, Supreme Court and Parish Courts of Jamaica ... ."

2. The judges' decision to send the conclusion of their private meeting to the press for public consumption was an act of misguided patriotism.

It is unfortunately embarrassing to say the least, made worse being (as I suspect it to be) a paid advertisement from our judges to the Jamaican public.

3. Let's admit it. We are a polarised political country, since the 1930s following the Frome, Westmoreland, riots, which engaged the physical and intellectual prowess of Norman Manley and Sir Alexander Bustamante, the founders and fathers of Jamaican Independence, through their political vehicles, the People's National Party and the Jamaica Labour Party, respectively.

4. We all know that it is the prime minister's undeniable CALL to exercise his privileged constitutional responsibility of appointment of Justice Bryan Sykes to the office of chief justice.

These judges have regrettably politicised themselves as activists (concurring with the parliamentary Opposition against the democratically elected Government) by calling into question the manner in which Prime Minister Andrew Holness exercised his privileged constitutional duty.

5. Their action to publish such an absolutely unnecessary declaration is to influence the court of public opinion. They, however, fail to realise that their action to publish (the conclusion of their private meeting) is based on their misguided view that they are representing the views of the people of Jamaica. They seem not to appreciate the fact that it is against the people's own democratically elected Government, led by Prime Minister Andrew Holness.

6. This unprecedented action breached all known judicial protocol, and is unconstitutional, illegal, invalid and otherwise unauthenticated. We now know from the Cabinet's reply, through Minister of Justice Delroy Chuck, that the judges could have requested a meeting with the governor general, something they had successfully done before. This is known in law as alternative remedy, available to them.

7. The judges' mischievous anti-government publication would have been far more sincere and courageous if it were supported/validated or otherwise authenticated with at least one signature from someone who was part of the cohort of 97. It will now to be known as 'The 2018 February 12th King Street, Declaration of 97 Judges Kingston, Jamaica' and will be a regrettable appendage to our legal/judicial history.

8. The only comforting aspect of the aforementioned anti-governmental publication is its Preambular paragraph 3, which reads:-

"We wish to make it clear that we do not speak on behalf of the acting chief justice, and are acting independently of him and without his concurrence indicating our disquiet."

It indicates (thank God) that their boss, Justice Sykes (my Christian Baptist brother), had nothing to do with it.

9. This public protest of the unnamed 97 judges (is revolutionarily negative) must be very embarrassing to Justice Sykes, as it undermines his authority over them to manage them. This could have the effect of prejudicing, compromising and jeopardising the prime minister's confidence in his appointment. This unauthorised action of these judges now puts Chief Justice Sykes to the test as to whether he can/or will be able to rein in this revolutionary group of 97.

My advice to Justice Sykes would be to remain calm and respectful to the lawful constitutional authority of the democratically elected Government headed by Prime Minister Holness who, acting on behalf of the people of Jamaica, saw him fit to be appointed to act as chief justice of Jamaica.

- Don Foote is an attorney-at-law and former executive member of the Jamaica Labour Party. Email feedback to columns@gleanerjm.com and donfoote@cwjamaica.com.