Mon | Feb 19, 2018

Gordon Robinson | One woman's courage

Published:Tuesday | February 6, 2018 | 12:00 AM

Were I to characterise the life of Chief Justice Emeritus Zaila McCalla with one word, it would be courage.

Chief Justice McCalla was showered with encomiums by representatives of various sections of the Bar on January 31 at a ceremonial sitting of the full Supreme Court. Her intellect, equanimity, administrative competence, creativity, drive and humanity were all praised.

It was noted that, as the first female chief justice, she had shattered the glass ceiling in law forever and made way for a fully gender-neutral legal profession and judiciary.

Her calm, unflappable nature also came in for mention. But I didn't hear that magic word I was waiting all ceremony to hear. Maybe because of her famous reticence and humility, that quality I've noticed and earmarked above all others was overlooked.

One speaker remembered Chief Justice McCalla was born four years after women were allowed to vote and not long after they were first permitted to own property. For her to rise above those circumstances of birth to the top of the judiciary took extreme courage. Nowhere was her quiet, serene courage more on display than in her seminal judgment in the case of Clinton Bernard v Special Constable Paul Morgan and Attorney General of Jamaica, delivered on June 9, 2000.

I've reproduced the facts from Justice McCalla's judgment:

"Clinton Bernard ... on 11th February 1990, accompanied by his parents, went to the Central Sorting Office in Kingston ['to make'] a telephone call. It was about 9 p.m. and, on their arrival there, about 15 persons were seen standing in line. Plaintiff joined the line and awaited his turn to use the telephone. He testified that as soon as he took the telephone and dialled a number, 'out of the blue, out of nowhere' a man came up and said "Police," and demanded the use of the telephone. Plaintiff protested and remarked that had it been a bank, he would have had to join the line.

He was greeted with 'oy, me naw join no line, give me the phone.'

Mr Bernard refused to give up the telephone, whereupon he was slapped on his hand and shoved. ... The first defendant then took two steps backwards; pulled a gun from under his shirt; pointed it at him and the next thing he heard was an explosion. He fell backwards and lost consciousness.

When he regained consciousness at the Kingston Public Hospital he found himself surrounded by men in uniforms. He was arrested for assaulting a police officer and handcuffed to his bed by the first defendant."

It turns out Mr Bernard had been shot in the head by the policeman. It was a criminal act and, accordingly not one 'authorised' by his employer, but yet a brave Justice McCalla found the Government vicariously liable because, as she opined it, "The act of shooting the plaintiff was unlawful and clearly did not fall within any of his prescribed duties but was nevertheless in furtherance of his demand.

He subsequently arrested and charged the plaintiff for assaulting him and by that act he could only have been asserting that at the material time he was executing his duties as a police officer."

This is 'common sense' reasoning, so readers might wonder why I'm making such a fuss about it. That's because the law, often indistinguishable from a jackass, had previously been frequently interpreted by our appeal court to imply the opposite. In Donna Engerbretson v A.G., a pregnant beautician from Minnesota, was assaulted and beaten in a hotel bathroom by an on-duty undercover policeman assigned to protect tourists from drug dealers but who had become their best customer. He gained access to the bathroom because the hotel's security knew him to be an undercover policeman assigned to the hotel.

The appeal court overturned the decision of another brave Supreme Court judge, Bingham J (as he then was), BUT Donna didn't have the wherewithal for a Privy Council appeal.

So Justice McCalla flew in the face of appeal court decisions and found a way to distinguish the facts before her. The appeal court, following Engerbretson's case, overturned her decision. This time, the case reached the Privy Council, where she was vindicated; her courage rewarded; and Bernard received justice. All this was due to the courage of one woman who defied all odds throughout life; became chief justice; and performed with distinction.

Chief Justice McCalla, go with God. Justice is better now than when you arrived! Many young female counsel stand on your sturdy shoulders.

Peace and love.

- Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.