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A Deep Sense Of Arrogance Demonstrably Creeping Into The Judiciary…

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(Chief Judge), Bryan Sykes, ( note *judge* instead of [*jus­tice*] for obvi­ous rea­sons), chose to chide and chas­tise police wit­ness­es who have done the heavy lift­ing to the per­il of their own lives to bring a bunch of Klansman thugs to trial.
In one such episode, Sykes took DCP Fitz Bailey to task for the deci­sion of the police not to crim­i­nal­ly charge a coop­er­at­ing wit­ness who gave invalu­able infor­ma­tion and tes­ti­mo­ny which helped the pros­e­cu­tion’s case.
Sykes insist­ed to Bailey in open court that decid­ing not to charge the coop­er­at­ing wit­ness meant that gang­sters can decide to turn on their col­leagues if they believe they can avoid pros­e­cu­tion. (Can some­one explain to me what is wrong with that con­cept)? I do under­stand that tech­ni­cal­ly a tri­al judge may want to see all of the play­ers brought before the court, how­ev­er, this con­ver­sa­tion could be had by call­ing the pros­e­cu­tor and defense lawyers up to him for a pri­vate con­ver­sa­tion about it, not lash out at the police.
There is so much to unpack in his stu­pid out­burst that it hard­ly war­rants an intel­li­gent response, but one that asks,” where did they find this dude?
To add insult to injury, the ‘chief judge’ went on to tell Bailey that the deci­sion of the police did not bind him and that it is actu­al­ly, [wait for it].…..a judi­cial deci­sion whether the crown wit­ness should be charged.
So the judge is cor­rect; the deci­sion of the police can­not bind the tri­al judge; how­ev­er, the asser­tion that it is a judi­cial deci­sion whether the coop­er­at­ing wit­ness becomes a defen­dant is total balderdash.
Unless the judge is pre­pared to inves­ti­gate and pros­e­cute the case, he should shut his mouth; it is up to pros­e­cu­tors whether or not to charge a coop­er­at­ing witness.

Bryan Sykes ques­tioned how a wit­ness who con­fessed to seri­ous felonies was­n’t charged, which brings me to the ques­tion of just how smart and exposed is this man? Fitz Bailey explained to the self-absorbed Sykes that for the greater good, the police decid­ed that after a cost-ben­e­fit analy­sis, it was not in their inter­est to charge the witness.
Now I under­stand that not many peo­ple can under­stand this con­cept if the most senior jurist can­not grasp it.
♦Fisherman uses small fish to catch big fish.
♦ You give up some­thing to get something.
♦You bait a trap with cheese to catch a rat.
Of course, you would like to see all of these mur­der­ers in prison, but what if the only way you get to the head is to cut the shoul­der some slack?
I am real­ly try­ing to explain it to Sykes for the love of God here. What if the pros­e­cu­tion’s case is a lot shaki­er if you charge a coop­er­at­ing wit­ness? Using Bryan Sykes’ log­ic, it is okay to cut off your nose to spite your face. What if you have no case at all with­out that wit­ness­es’ coöper­a­tion? Do you still insist on a zero-sum out­come of all or nothing?
From the way the chief judge has been han­dling this case, it leaves many ques­tions; chief among them is, does the tri­al judge real­ly want a con­vic­tion of the defen­dants, or is he more inter­est­ed in grand­stand­ing against the process and the police?

The Klansman Gang tri­al is actu­al­ly a test case, the first case that will be a barom­e­ter for the new anti-crime leg­is­la­tion that this writer is proud to have pushed for repeat­ed­ly for over a decade. To break the back of crim­i­nal enter­pris­es, it is impor­tant to have Rico-style leg­is­la­tion to inves­ti­gate crim­i­nals. (See Rico statute; https://​www​.ojp​.gov/​n​c​j​r​s​/​v​i​r​t​u​a​l​-​l​i​b​r​a​r​y​/​a​b​s​t​r​a​c​t​s​/​r​i​c​o​-​r​a​c​k​e​t​e​e​r​-​i​n​f​l​u​e​n​c​e​d​-​a​n​d​-​c​o​r​r​u​p​t​-​o​r​g​a​n​i​z​a​t​i​o​n​s​-​a​c​t​-​s​t​a​t​ute
Sykes seems to have a seri­ous prob­lem with crim­i­nals get­ting their just due, and no one should be fooled by his seem­ing desire to have the wit­ness charged. His con­tin­ued hos­til­i­ty toward the police should not be lost on any­one watch­ing this case as it crawls through his courtroom.
The Gambino crime fam­i­ly is one of five Mafia fam­i­lies oper­at­ing in the United States. With the Gambino fam­i­ly, are the Lucchese, Bonano, Genovese, and Colombo families.
Facing a moun­tain of crime and peo­ple who sel­dom rat­ted on each oth­er, fed­er­al author­i­ties were forced into action, the result was that the Congress passed the Rico Statute in 1985.
The Rico Statute allowed Federal author­i­ties to inves­ti­gate and pros­e­cute mob fam­i­lies as a sin­gle group, all belong­ing to a sin­gle crim­i­nal enterprise…
As for the Gambino fam­i­ly, John Gotti, its col­or­ful and flam­boy­ant boss, he beat two pre­vi­ous fed­er­al raps and thumbed his nose at authorities.
By the time John Gotti was again in a fed­er­al court for his third tri­al, his famed lawyer Bruce Cutler was barred from rep­re­sent­ing him. Federal author­i­ties deemed Cutler a con­sligerie rather than a true defense lawyer, and as such, he was barred from Representing Gotti.
That was hard­ly Gotti’s only prob­lem; his infa­mous under­boss Sammy the Bull Gravano had flipped and became a coop­er­at­ing gov­ern­ment witness.

Gravano reached a deal with Federal author­i­ties which allowed him to plead guilty to 19 mur­ders for his tes­ti­mo­ny against his boss. He was also charged and sen­tenced to five years impris­on­ment; how­ev­er, since he had already spent four years in prison, in 1992, when John Gotti was con­vict­ed and sen­tenced to life with­out parole, Sammy, the Bull Gravano, only served one addi­tion­al year before enter­ing the wit­ness pro­tec­tion program.
Criminals do not fight fair, gov­ern­ments must be cre­ative in find­ing new ways to deal law­ful­ly with present and emerg­ing threats. Critical think­ing seems to be an entrenched prob­lem with some of Jamaicas’ lead­ers in posi­tions of pow­er, some mem­bers of that body seem more intent on asser­rt­ing their own per­cep­tion of pow­er, rather than hon­or­ing their oaths.
You have to bait a line to catch a fish. We will be watch­ing this case along with the rest of the coun­try to see whether the judi­cia­ry will con­tin­ue to make a mock­ery of our sys­tem of justice.
In 2018 (97) of the Island’s judges took umbrage to the tem­po­rary des­ig­na­tion giv­en Bryan Sykes to act as Chief Justice. In a terse­ly word­ed let­ter to Prime Minister Andrew Holness, they voiced their dis­qui­et with his deci­sion to place Sykes on pro­ba­tion rather than a per­ma­nent appointment.


Central to their dis­sat­is­fac­tion was the idea that the Honorable Prime Minister had the gall to sub­ject Sykes to his evaluation.
They per­ceived that the con­sti­tu­tion­al sep­a­ra­tion of pow­ers grants judges inde­pen­dence, and makes them answer­able only to the peo­ple. Jamaican judges are all appoint­ed, as such, the idea that the rep­re­sen­ta­tives of the peo­ple to whom they claim to be answer­able have no respon­si­bil­i­ty to ensure that only the best can­di­dates are appoint­ed to those posi­tions is mind-boggling.
The judges fired off a lengthy let­ter to the Honorable Prime Minister after they had sum­mar­i­ly shut down court pro­ceed­ings to attend a meet­ing in the nation’s cap­i­tal to reg­is­ter their dis­gust at the Prime Minister’s actions.
It is impor­tant to process those actions with­in the con­text of the then Opposition leader Peter Phillips’ con­dem­na­tion of the Prime Minister’s deci­sion to appoint ‘Sykes’ on a pro­ba­tion­ary basis.
The out­burst of the unelect­ed judges and their fraught anger at the Honorable Prime Minister’s deci­sion seemed to be more about what they see as an affront to their right to unfet­tered pow­er, couched in con­sti­tu­tion­al lan­guage of sep­a­ra­tion of pow­ers, rather than any real trans­gres­sion by the Prime Minister.

THIS IS THEIR ‘HOW DARE YOU’ LETTER

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 in indi­cat­ing our disquiet.

We make no com­ment in respect of the ongo­ing debate sur­round­ing the ques­tion whether the act­ing appoint­ment of Chief Justice Sykes is uncon­sti­tu­tion­al, ille­gal or oth­er­wise invalid. That is a mat­ter for adju­di­ca­tion in a prop­er­ly con­sti­tut­ed court, if it should become nec­es­sary. We do not express any views on that issue.

It is how­ev­er our con­sid­ered view that dec­la­ra­tions of the Prime Minister rel­a­tive to the act­ing appoint­ment unques­tion­ably have seri­ous impli­ca­tions for the fun­da­men­tal prin­ci­ples of the sep­a­ra­tion of pow­ers and the inde­pen­dence of the judi­cia­ry. These are prin­ci­ples of great jurispru­den­tial val­ue as they form the foun­da­tion of our con­sti­tu­tion­al democ­ra­cy and which are crit­i­cal imper­a­tives for the pro­tec­tion and preser­va­tion of the Rule of Law.

The Administration of Justice
We state for the record that we wel­come the focus of the Prime Minister on the admin­is­tra­tion of jus­tice and acknowl­edge the con­cerns he raised about inef­fi­cien­cies, defi­cien­cies and delays in the jus­tice system.

We also accept and share the view that much more needs to be done to achieve time­ly jus­tice out­comes. We remain com­mit­ted to the attain­ment of a more effi­cient and effec­tive jus­tice sys­tem. One that will serve to strength­en the Rule of Law.

We accept that, although the judi­cial branch of gov­ern­ment is inde­pen­dent and should remain so, it is also account­able to the pub­lic. We there­fore sup­port any sys­tem geared towards enhanc­ing judi­cial effi­cien­cy and account­abil­i­ty in the pur­suit of time­ly jus­tice out­comes. However, judi­cial effi­cien­cy and account­abil­i­ty, can­not be achieved at the expense of judi­cial inde­pen­dence and the Rule of Law.

Any mech­a­nism employed to achieve effi­cien­cy and account­abil­i­ty must be con­sis­tent with the prin­ci­ples of sep­a­ra­tion of pow­ers and the inde­pen­dence of the judi­cia­ry. We fear, in the light of recent devel­op­ments, that some have lost sight of the cru­cial need to ensure that the three arms of Government func­tion togeth­er in a way that is com­ple­men­tary of each oth­er and con­sis­tent with the spir­it of the Constitution and the inten­tion of its framers.

Separation of Powers and Independence of the Judiciary
It should be clear­ly recog­nised that the safe­guards of sep­a­ra­tion of pow­ers and inde­pen­dence of the judi­cia­ry are not intend­ed for the ben­e­fit of the judges who are the office hold­ers. Rather they are intend­ed for the ben­e­fit and pro­tec­tion of Jamaican cit­i­zens and all oth­ers who come with­in our juris­dic­tion. For that rea­son, judges must be free to enforce the laws of the land, “with­out fear or favour, affec­tion or ill-will”, which they are sworn to do.

For the judi­cia­ry to ade­quate­ly and appro­pri­ate­ly per­form its con­sti­tu­tion­al func­tions and main­tain its author­i­ty and legit­i­ma­cy, judi­cial inde­pen­dence must be zeal­ous­ly safe­guard­ed and preserved.

The doc­trine of sep­a­ra­tion of pow­ers on which the Constitution and our democ­ra­cy rests, recog­nis­es that the con­cen­tra­tion of absolute pow­er in one per­son, body, or enti­ty risks the cor­ro­sive dan­gers of cor­rup­tion, exploita­tion and tyran­ny. As Judges we stand res­olute to do our part in avoid­ing such an even­tu­al­i­ty. There should be no infringe­ment of the fun­da­men­tal tenets of our democ­ra­cy that may, in any way, com­pro­mise the func­tions of the judi­cia­ry as an equal arm of Government, the guardian of the Constitution and the pro­tec­tor of the rights and lib­er­ties of the peo­ple of Jamaica and all who come with­in our jurisdiction.

We com­mend for con­sid­er­a­tion the wise words of Sandra Day O’Connor, for­mer Associate Judge of the Supreme Court of the United States of America, that, “…judi­cial inde­pen­dence doesn’t hap­pen all by itself. It’s tremen­dous­ly hard to cre­ate, and eas­i­er than most peo­ple imag­ine to destroy…(58 Fla.L. Rev. 1, 2006). She also said “Statutes and con­sti­tu­tions do not pro­tect judi­cial inde­pen­dence – peo­ple do.” (The Guardian – March 2006).

We there­fore cau­tion that these tra­di­tion­al con­sti­tu­tion­al prin­ci­ples should nev­er be cir­cum­vent­ed, how­ev­er noble the inten­tion. While we ful­ly recog­nise that there is a need for the Executive to account to tax-pay­ers and inter­na­tion­al part­ners for any invest­ments in the jus­tice sys­tem, our account­abil­i­ty, in keep­ing with the Constitution is to the pub­lic. Everyone in Jamaica, whether in any of the three branch­es of Government or a mem­ber of the pub­lic whom the three branch­es serve, is sub­ject to the let­ter and spir­it of the Constitution.

Judicial Accountability
We urge that the nature and scope of judi­cial account­abil­i­ty to the pop­u­lace we are sworn to serve, should oper­ate in a man­ner that faith­ful­ly pre­serves the inde­pen­dence of the Judiciary and the sep­a­ra­tion of pow­ers. The vital impor­tance of these fun­da­men­tal prin­ci­ples was clear­ly estab­lished in the sem­i­nal deci­sion of the Judicial Committee of the Privy Council in Hinds v the Queen [1977] 1 A.C. 195. There is no room with­in our con­sti­tu­tion­al frame­work for one arm of gov­ern­ment to impinge on the author­i­ty of another.

We recog­nise the desir­abil­i­ty of the con­tin­ued mod­erni­sa­tion of the judi­cial sys­tem, includ­ing pos­si­ble changes in the way Judges, are assigned, con­tin­ued focus on effi­cient crim­i­nal and civ­il case man­age­ment, the allowance for sched­uled time to write judg­ments, and the increas­ing use of tech­nol­o­gy to enhance effi­cien­cy. It must, how­ev­er, be recog­nised that while we all have to oper­ate with­in the con­straints of Jamaica’s tight fis­cal space, with­out sub­stan­tial­ly increased inputs into the jus­tice sys­tem, in terms of the phys­i­cal stock of court­rooms, addi­tion­al human resources at all lev­els, and the pro­vi­sion of the nec­es­sary tools utilised with­in the sys­tem, the desir­able lev­els of improve­ment can­not be achieved or sus­tained. This in a con­text where inad­e­quate invest­ments in the jus­tice sec­tor have been a fea­ture of suc­ces­sive Governments since independence.

We close with the guid­ance pro­vid­ed by the Commonwealth (Latimer House) Principles on the Three Branches of Government (2003). “Each com­mon­wealth country’s Parliaments, Executives and Judiciaries are the guar­an­tors in their respec­tive spheres of the Rule of Law, the pro­mo­tion and pro­tec­tion of human rights and the entrench­ment of good gov­er­nance based on the high­est stan­dards of hon­esty, pro­bity, and account­abil­i­ty.” All three arms of the State should ful­fil their respec­tive but crit­i­cal roles in the pro­mo­tion of the Rule of Law in a com­ple­men­tary and con­struc­tive manner.

By his unfor­tu­nate com­ments, the Honourable Prime Minister, the head of the Executive branch of Government and a mem­ber of the Legislature, has sought to place the head of the judi­cia­ry, a sep­a­rate and equal arm of Government, under his super­vi­sion, direc­tion, and con­trol, and sub­ject to a process of eval­u­a­tion by him. This is clear­ly inap­pro­pri­ate and in breach of the fun­da­men­tal doc­trine of the sep­a­ra­tion of pow­ers. We ask the Prime Minister to retract his state­ments and to pub­licly acknowl­edge that the Chief Justice is not answer­able to him.

Our con­cern is height­ened as this is against a back­ground of pre­vi­ous state­ments made by oth­er mem­bers of the exec­u­tive that have crossed the line of the sep­a­ra­tion of pow­ers and have had the effect of under­min­ing the inde­pen­dence of the judi­cia­ry. It should always be remem­bered that “Judges are not behold­en to the gov­ern­ment of the day.” (Bangalore Principles of Judicial Conduct, 2001).

The nation’s judges recog­nise and deeply regret the incon­ve­nience to lit­i­gants, attor­neys, and mem­bers of the pub­lic across the island caused by Monday’s meet­ing in Kingston. However, in light of the grav­i­ty of the con­cerns and in the inter­est of the country’s democ­ra­cy and jus­tice sys­tem, it was con­sid­ered an absolute neces­si­ty. For those per­sons incon­ve­nienced, we will endeav­our to ensure their mat­ters are resched­uled for the ear­li­est pos­si­ble time. Where nec­es­sary, we will be sit­ting for extend­ed peri­ods to achieve this.

King Street
Kingston
February 12, 2018

The fight against dan­ger­ous local crim­i­nals, gangs, & transna­tion­al crime syn­di­cates [must] be enjoined by every arm of the Government with a clear view on how best to pro­tect the nation and the Jamaican peo­ple. Our elect­ed rep­re­sen­ta­tives are tasked with cre­at­ing pol­i­cy toward that end.
The judi­cia­ry has [no] con­sti­tu­tion­al role in set­ting or dic­tat­ing pol­i­cy, includ­ing no role in set­ting aside sen­tenc­ing guide­lines and bail guide­lines under the con­ve­nient cov­er of judi­cial independence.
The role of the judi­cia­ry is to inter­pret the laws and apply them, to ensure that they pass con­sti­tu­tion­al muster. There is no role for judges to oper­ate on their own in this fight to save our coun­try or, worse yet, oper­ate in a way that under­mines law enforcement.
Jamaica’s judges have a long his­to­ry of doing exact­ly that; it must stop.

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Mike Beckles is a for­mer Police Detective, a busi­ness­man, free­lance writer, black achiev­er hon­oree, and cre­ator of the blog mike​beck​les​.com.
You mays send feed­back to mike @ excellence@​hvc.​rr.​com