The draft new constitution proposes the creation of a Ministry of Justice. The reaction so far seems to be negative. I suspect that a great deal of the suspicion and hostility to the proposal has been generated by the reaction to the Chief Justice’s speech as well as popular distrust of the motives of the incumbent Prime Minister and the Attorney General. There are, however, objective reasons to be concerned about the proposal. Why the need for a Ministry of Justice? The stated view is that the establishment of an Executive Presidency makes its creation essential. I am not, however, convinced that the case for a ’line minister’ who would be responsible for the Judiciary has been made, even if one assumes that it should be done.

The draft proposes that ’administrative matters relating to the Judiciary shall be under the control of the Minister of Justice, and in the exercise of administrative matters pertaining to the Judiciary, the Ministry shall first consult the Chief Justice. ’The CJ fears that the mere existence of such a ministry would provide incentives and encouragement to incumbents of that ministry to flex their muscles and try to extend their influence over the Judiciary. As he told his audience, and by extension the sponsors of the draft constitution, ’how pray tell, can a constitution meaningfully provide for the Judiciary to be independent...If the Minister of Justice shall have control of administrative matters relating to the Judiciary ’as may be prescribed’? Prescribed how, where and by whom? How is the Chief Justice to be responsible, and therefore accountable for that which he does not control? The matter is not helped by reference to consultation. Anyone who understands constitutional language knows that he who merely has to be consulted can be safely ignored.’

Eric Williams, we recall, had a reputation for being condescending in the way he ’consulted’ political stakeholders.

It has been counter-argued that ministries of justice are nothing to be feared as some civil society groups do, and that they exist in the UK, Canada and several Caribbean island states, including Jamaica. The fact that they exist elsewhere does not, however, mean that they work well, or that it is right for us. Indeed, Chief Justices in all Caribbean states continuously complain that they are treated as junior members of the executive branch rather than as equals in a separation of power framework as the theory would suggest.

A Report by a Task Force (2007) into the problem of Justice in Jamaica tells us that the ’model used raises questions about where the responsibility for court management, court administration, and the expenditure of public funds should lie. It also raises questions about judicial independence. The Jamaican model is based on the traditional executive model in which major decision affecting the judiciary are made by the Minister of Justice in consultation with the Chief Justice.’ The report, however, notes that ’the model is largely dependent on the relationships of trust and goodwill between the executive and the judiciary, to function. There is a likelihood that these relationships may change with each new Minister of Justice and the vicissitudes of the political climate. In this model, the judiciary and the court system are not seen or even treated as a separate arm of government, but as a department of the Ministry of Justice ... The responsibility for the operation of the court system being divided between the executive and the judiciary is a bifurcated approach which has led to confusion because the lines of authority, responsibility and accountability are not definable.’

The Task Force recommended that the Government of Jamaica move toward a more independent agency model of court administration as part of a comprehensive reform process. As it advised, there is need to give the Courts more authority and make them more accountable for their operations.

The concerns expressed by the Task Force were echoed by the Chief Justices of the Commonwealth Caribbean when they met in Kingston on October 1999. In their statement, the CJs asserted that ’no member of the executive should assume or be given the responsibility for or control over the administration of the judiciary. A Chief Justice shall not be given directions by any member of the executive in matters affecting the administration of the judiciary. [The latter] should have unimpeded access to funds voted to it by Parliament, and once voted, access should be subject only to the availability of funds.’

Conflicts between the executive and the judiciary obtain almost everywhere and in differing types of political systems. In some, the conflicts are very acute while in others they are muted. They seem to be sharper in Presidential systems where the executive usually views the Judiciary as a threat to its viability and feels the need to capture or pack the Supreme Court with its own appointees to ensure its own security and the continuity of its policies. This is a continuing problem in Latin America as we have seen recently in Venezuela, Argentina and Honduras. Where frontal capture is not possible, executives bully or punish judiciaries if they show too much independence.

Conflicts also obtain in Westminster type systems though they are less noisy than in presidential systems. During the UNC’s tenure of office between 1995 and 2000, conflicts were frequent and sometimes noisy. All but one of the judges went so far as to threaten to go on a sit down strike if their independence was further challenged. The then Chief Justice seemed to have believed that the AG was bent on micro-managing and controlling the Judiciary’s access to the funds voted to it by Parliament. He also believed that the executive was seeking to operate a system of rewards and punishment that would make the judiciary think twice before they made decisions which they knew would antagonise the Executive. Two inquiries, one headed by Caribbean jurist, PT Georges and the other by Lord Mc Kay sought to find formulas to resolve the conflict. The compromise was the development of a department of Court Administration controlled by the Chief Justice and accountable to the government through the Office of the Attorney General. The new proposal seeks to alter the status quo in favour of the executive.

In the final analysis, whether or not the systems work depends less on the formal institutions, important as those are, and more on the historical inheritance, the political culture of the society, as well as the key personalities involved and their ambitions. If the actors are aggressive and hubristic, the system will not work well.

My fear is that the creation of a specific ministry would sharpen the conflict and make matters worse, especially if the Judiciary, led by a young and well regarded Chief Justice and the key members of his team, resist being bullied by the executive. I also believe that the case has not been made for a Ministry of Justice and that what we are witnessing is an unconcealed attempt at comprehensive executive aggrandisement. What we could end with is a fused system in which one political elite controls the ruling party, its internal electoral process, the official executive and the legislature as well as the top echhelons of the bureaucracy.