Tue | Oct 23, 2018

Editorial | Controversy at the Bar

Published:Sunday | December 24, 2017 | 12:00 AM

Not surprisingly, the fact of Isat Buchanan being called to the Bar in Jamaica has been controversial. And in a country where the legal profession is under a cloud because of many ethical lapses, the Buchanan affair has the potential for deepening scepticism.

That may be unfair to Mr Buchanan, but part of which he could blame the General Legal Council (GLC), the oversight body for the legal profession, for its handling of the matter. The GLC was not only late with an explanation of why it certified Mr Buchanan, but was less than fulsome with its reasons for doing so. In its cryptic legalism, it failed to bring a deeper understanding to a matter that required not only a hard declaration of legal principles, but pointers to how it engaged profoundly human ideas such as morality, ethics, redemption and rehabilitation and its application of the character test.

Mr Buchanan's entry into the legal profession is perhaps unprecedented. Twenty-one years ago, he was convicted in Jamaica for attempting to smuggle drugs. By his account to this newspaper, while preparing for a trip to the United States, he was asked by a neighbour to deliver cash to someone in America. Drugs were discovered to be in the package with the money. Mr Buchanan was fined J$1 million.

Three years later, in 1999, on a flight to the US, Mr Buchanan reported, drugs were found in the possession of another passenger, who claimed that the contraband belonged to Mr Buchanan. "When they told that to the Feds (American federal authorities), they actually arrested me and they found me guilty by myself," he said. So, the hapless Mr Buchanan was forced to serve a 10-year jail term.

Based on this public narrative of his past, Mr Buchanan will no doubt appreciate why some people question whether they are in command of all the facts, his own interpretation of them, and the logic and efficacy of the GLC's decision.

 

WHAT QUALIFIES GOOD CHARACTER?

 

Under Jamaica's legal profession act, a person can be certified to practise law if she or he is on the GLC roll of attorneys, qualification of which comes by having satisfied the body that they have completed the specified course of study, passed the relevant exams, at least 21 "and is of good character".

What qualifies as "good character" for some wanting to be called to the Bar has not, up to now, been put to the test in the courts in Jamaica. The issue, however, was examined in the East Caribbean Supreme Court in the 2013 case of Ewart Layne, a Grenadian ex-soldier, who was among 17 members of Grenadian New Jewel Movement convicted of murder during the 1983 implosion of that country's revolutionary government, including the execution of the prime minister, Maurice Bishop.

Mr Layne eventually gained a law degree and legal training but was barred from the profession. Grenada's legal profession act has a provision similar to Jamaica's.

Justice Margaret Price-Findlay agreed with the proposition that there was no right under the act to practise law. It, instead, "lays down only the threshold requirements for the exercise of the court's discretion".

She noted that the character test involved both subjective and objective factors, such as Mr Layne's conviction, though the related events were more than 30 years old, and the fact that he had served his sentence and concluded that: "As a refusal to admit is not punitive in nature, it does not amount to double punishment for a crime for which a sentence has been served."

Further, she argued that allowing Mr Layne "to be admitted would send an inconsistent message to members of the public and to the profession as a whole". Her ruling was upheld by the Eastern Caribbean Court of Appeal.

The GLC said that, in Mr Buchanan's cases, it came to its decision on the evidence and material before it and having regard to the applicable legal principles that he was of "good character and fit and proper person to be a member of the legal profession" .

It needs, however, to offer more.