Tue | Nov 13, 2018

Editorial | Lawyers Smith and justice backlog

Published:Tuesday | September 18, 2018 | 12:00 AM

While we venture no opinion on the merits of the specific case, the issues relating to the timely justice raised by the Smith family of lawyers further highlights why the Holness administration must act with dispatch to fill vacancies on the Bench, as promised by Justice Minister Delroy Chuck.

The broad facts of this case are that in 2003, the offices, in Kingston and St Ann, of the law firm Ernest Smith & Company were raided by police in search of information relating to one of its clients. Several files were removed, including some belonging to persons who weren't the object of the investigation.

The Smiths, father Ernie and his daughters Nesta-Claire and Marsha, argued that the raids breached constitutionally guaranteed lawyer-client privileges and that the search warrants, signed by a magistrate, were otherwise defective. They prevailed at appeal, having been ruled against in the Supreme Court.

The Court of Appeal, pointing to the fact that the raids and seizures happened despite there being "no allegation that any of the attorneys or their members of staff committed any criminal offences, or that there had been wrongdoing by anyone on those premises", held that the action breached the Constitution, as well as professional privileges.

Buttressed by this ruling, the Smiths sued the State, seeking J$143.5 million for trespass on their constitutional rights. Given the ruling by the Court of Appeal, that case was, essentially, about assessing damages. But Justice King retired in 2013 before completing the matter.

The Smiths are now seeking a declaration from the Supreme Court that the hearing is now null and void and the five-year delay represented a breach of their constitutional right to a fair hearing within reasonable time. They, in the circumstance, should be paid the requested compensation.

It is not clear whether this case counts among the estimated backlog of half-million that clog Jamaica's courts, which is an issue that has exercised the mind of Mr Chuck. He has been seeking solutions to the problem, including promising to fill vacancies in the courts - nine Supreme Court justices, six appeal judges, four masters-in-chambers and a dozen Parish Court judges. He also promised to add retired Supreme Court justices to the roster. "There are simply too many outstanding cases and too much work in the court system for these vacancies to remain unfilled," Mr Chuck said in July.

 

Chuck slow to action

 

Despite his empathy with people who face court delays and his intellectual appreciation of the effect these have on the society, Mr Chuck, like his predecessors, has been slow to action. For instance, the minister has said that legislation to allow judges to continue in office past age 70 will probably come into force in the new year. Yet, that bill, requiring only a minor amendment of the judicature (Supreme Court) Act and Section 100 (2) of the Constitution, ought to take no more than an hour to complete, taking into account Mr Chuck's protestations about the complexity of the task. Already, judges can be asked to remain in office, after retirement, to complete cases they have already started.

We are not privy to the circumstances that attended Justice King's retirement and how precisely it impacted the case of the lawyers Smith. But the fact that it could cost taxpayers over $143 million should concentrate people's minds. For, if the Smiths are successful, we can be assured that other cases, of similar or related circumstances, will follow. Urgent action is, therefore, necessary from Minister Chuck.