Thu | Aug 13, 2020

Editorial | Ms Malahoo Forte owes us more

Published:Monday | July 27, 2020 | 12:12 AM

Marlene Malahoo Forte has a habit of, with the aid of her tweets, lodging her foot in her mouth. Recently, it was her defence of Delroy Chuck’s sniggering 30-years-later remark about likely female complainants in sexual harassment cases.

This time, though, Ms Malahoo Forte got only as far as her toes, saved by the possibility that she genuinely hoped to engage a serious debate, rather than intending to scandalise the courts, or to bring them into contempt and disrepute. The problem for Ms Malahoo Forte, however, is that while she may have just held her balance on the right side of prudence, as Jamaica’s attorney general, the Government’s principal legal adviser, and an officer of the courts, she has a greater obligation than ordinary citizens to approach criticisms of the judiciary with facts, data and compelling analysis, rather than anecdote.

Ms Malahoo Forte, unfortunately, didn’t reach that bar, leaving many with a sense that she harbours a peevish gripe against judges and an intention of using her high office to invite scepticism of the judiciary.

This latest saga of explanations and clarifications by Ms Malahoo Forte, a former magistrate, started with a tweet, after it was erroneously reported by the media that Justice Bertram Morrison had ruled that five detainees, held for several months under emergency powers, were being unconstitutionally held, using orders signed by the national security minister. The court clarified that what Justice Morrison actually said was that there was sufficient information for him to look further into the matter, essentially triggering a habeas corpus hearing.

Ms Malahoo Forte’s initial tweet was on point. “Media reports about the unconstitutionality of a detention under a state of emergency in a matter ruled by a single judge who heard application for writ of habeas corpus cannot be correct.”

She followed up with this: “There is just a worrying trend that I see in respect of some rulings coming out the court when the law should be guiding approach to be taken. I have seen many cases when the law should guide the approach to be taken. I have seen many cases that have come back to me in the chambers, where what the law says is put aside, both procedurally and sometimes substantially, and matters are determined now.”

She said further: “If ever our courts of law cease to be guided by or apply the law, and instead become courts of public opinion, special interest, personal interest or anything less, then therein lies the biggest threat to our democracy.”

UNDERMINING RULE OF LAW

There is hardly an opinion an officious bystander would arrive at other than that in Ms Malahoo Forte’s view, Jamaica’s judges, or substantial portions thereof, are led not by the law but the public gallery. Which, if it were true, would be undermining the rule of law and of democracy.

If this is, indeed, a concern held by the attorney general, based on data-supported observations of the performance of the courts, she had a responsibility to alert the public, and an absolute right to voice her criticism. For, as Lord Atkin’s remarked in the 1936 Privy Council case, Ambard versus Attorney General of Trinidad and Tobago: “ … No wrong is committed by any member of the public who exercises the ordinary right of criticising in good faith, in private and in public, the public act done in the seat of justice. The path to criticism in a public way: the wrongheaded are permitted to err therein: provided that the members of the public abstain from imputing motives of those taking part in the administration of justice, and are genuinely exercising a right to criticism and not just acting in malice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”

Or, as Lord Dennis, another English judge, was to say: “It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make a fair comment, even though outspoken comment on matters of public interest.”

Those comments, though, should start with a basis in fact, which, in Malahoo Forte’s case, she may have yet failed to share with the public. It is not enough for the attorney general, post facto, to declare “confidence” in, and “unwavering support” for the judiciary, or merely to claim that her remarks were misinterpreted.

She now has an obligation to provide further and better particulars of their context, so that Jamaicans can engage in a full and serious discussion on the performance of this other branch of government, which is critical to the maintenance of rule of law and, as Ms Malahoo Forte said, the functioning of democracy.