Sun | Aug 20, 2017

Gordon Robinson | Tell him where to chuck it!

Published:Sunday | March 5, 2017 | 3:00 AM
Chuck has been lashed for an assault on the remit of the judiciary, while failing, like his predecessors, to provide the necessary funding.

It seems that 2016 Dunce Move Award winner Delroy Chuck can't get enough of the taste of shoe leather.

Back in March 2016 (barely in power long enough to distinguish between his portfolio and frozen water), he publicly insisted that cases must be completed within months, as happens in other jurisdictions. Of course, he failed to explain how this was to be accomplished in a system choked with paper and bereft of modern technology. The following prescription for cases in the system over five years was his brilliant idea.

"I would urge that this year, those cases, unless there are reasonable grounds for them continuing, should be dismissed for want of prosecution. It's just not fair that any accused person, even if he's guilty, has to be going to court for five years hoping their innocence can be pronounced."

The first sentence of this warped jumble is paradoxical and nonsensical ("unless there are reasonable grounds for them continuing ..." renders it meaningless) as would be expected from a combination politician-lawyer. The second sentence exposes bias, inexperience, or ignorance. He presumes that only criminal cases languish for more than five years. Or maybe it is that only criminal cases require efficient disposal.

Then he proposes that cases should be "dismissed for want of prosecution" at five years and a day but not at five years less a day. If I were a criminal 'defence lawyer', I'd relish a policy like this where numbers, rather than law decide my client's fate. It's like what happened when the revered Privy Council, in its wisdom, decided that condemned murder convicts should be hanged in five years or not at all. Jamaica hasn't been able to hang one murderer since.

In his 'law-by-numbers' system, how would Delroy deal with the case of a bank that sues a debtor for hundreds of millions of borrowed dollars that haven't been repaid but whose case is held up in the system by interlocutory applications; interlocutory appeals; interlocutory adjournments because the file can't be found; or insufficient time has been reserved for the hearing; and adjourned trials because the matter is "not reached" on the court list? I estimate that more than half of all civil suits suffer at least one of these or similar fates.

 

HIS THOUGHT PROCESS

 

Mark you, all this requires thought. I forget that I'm dealing with the same Delroy Chuck who called for Young Andrew's resignation after the appeal court essayed an opinion that Arthur Williams' scheme of pre-signed letters was unconstitutional (he didn't ask Arthur to resign), yet hugged up the same Young Andrew on election night after Andrew engineered a political comeback win as thrilling and unlikely as the Patriots' recent Super Bowl victory. What thought process does that expose? One seeking a spot at the trough by any means necessary?

Well, he was rewarded with the justice ministry. Having wasted no time in inserting one foot into his mouth in March, he crammed in the other foot in September when he chastised Supreme Court judges for taking too long to write judgments and issued a veiled threat by referring to other countries where that could result in judges being cited for misconduct.

Chuck suggested that judgments should be handed down within six months. Neither in March nor September did he mention the egregious amount of time the simplest case takes to trundle through the congested system and arrive at a stage where a judge needs to write a judgment. By that time, between five and 15 years could have passed, and whether it takes the judge six months or six years to write the judgment makes, as the Rawhide Kid used to say, "no, never mind".

Furthermore, Supreme Court judges are treated like pack mules. They're forced to sit five days per week with umpteen new cases assigned. They have no facilities for in-depth research, no designated secretaries, no full-time research assistants - nothing!

To my shock and amazement, it was reported in The Gleaner (February 5, 'Judges demand justice - Government could be reported to the UN for failure to pay salary increases to members of the judiciary') that judges haven't been paid salary increases approved and owed for FOUR YEARS! Really? Seriously? THIS is the context in which Delroy Chuck endangers our Constitution by publicly chastising judges to the point of effectively interfering with their work?

In March 2016, around the time that Chuck was foaming at the mouth about five-year-old cases, Cabinet approved $100 million for the relocation of the justice ministry's offices from 2 Oxford Road to 61 Constant Spring Road. Bully for Delroy, who relaxes in his new multimillion-dollar office building drawing (on time) a full ministerial salary plus perks for leading a one-half ministry (should be twinned with the attorney general's role) daring to publicly interfere with the role of the judiciary, who Government hasn't paid what it owes in salary for four years. Shame!

The good news is, I'm confident he's engaging mouth without a brain consult. If he was using a brain to orchestrate this attack on the judicial branch of government, he'd be dangerous. Forty years ago, the Privy Council held that Jamaica's Constitution entrenches separation of powers so that it's already constitutionally incongruous that our judges have to be paid by or answer to a justice ministry or any part of Government's executive branch. In a civilised country with a written constitution, the justice ministry would be led by the attorney general and have NOTHING to do with the operation of any court.

Even the USA, where civilisation is becoming harder and harder to locate, recognises the need to protect the judiciary from crass behaviour of the executive bordering on interference. Recently, reacting to a judicial setback of his transparent Muslim ban, President Trump referred to the federal judicial officer as a "so-called" judge, creating a firestorm in a country that intends to have its judiciary remain in place for the next four years. Former Republican congressman (1995-2001), staunch party member and cable news host Joe Scarborough, writing in the Washington Post (February 5), had this to say:

"America's new president may not care about upholding the traditions of his office. He also may recklessly disregard his predecessors' tireless work to build vital global alliances. But when the president tries to undermine the legitimacy of the federal judiciary, he must be told in short order that the White House is picking a fight it will not win. For the sake of the country, let us hope the attacks on "so-called" Judge James Robart were merely reckless and not politically calculated. Because speeding further down that path would end in an ugly constitutional crash."

Arguing that no matter a president's antecedents, the question of the independence of the judiciary is sacrosanct, Joe gave some examples:

"During his impeachment battle, President Bill Clinton and his wife lashed out at congressmen, senators, news anchors, talk-show hosts, newspaper editors and members of the 'vast right-wing conspiracy'. The Clintons counterpunched their accusers and engaged in a no-holds-barred battle for the presidency. But when the Supreme Court disbarred Bill Clinton from practising law before that court, the president was more measured. He showed similar restraint after the Arkansas Supreme Court suspended his law licence as well. Clinton the lawyer knew, even during his darkest political days, that fighting the judiciary was a battle that presidents should avoid. President Richard Nixon recognised that truth as well even in the final days of his presidency. Within days of the Supreme Court demanding the president turn over the tapes that would force him to resign, Nixon relented."

 

CHAOS AND ISOLATION

 

Joe Scarborough warned that this path of utter recklessness can only end in chaos and isolation:

"These presidents recognised the bright constitutional boundaries that limited their power even during existential political crises. But this weekend, Trump took a reckless and unnecessary shot at a federal judge on the basis of a temporary ruling. It's yet another unforced error from a president who keeps stepping on his own good headlines while stirring deep unrest among political friends and foreign allies."

Delroy Chuck, take heed. You don't have Trump's excuse. You're at least expected to have a fulsome understanding of the role of the executive arm of government vis-‡-vis the judicial arm. If you don't start showing that you recall your legal training and continue to seek sound bites over developing a serious plan to fix the justice system, you can expect it won't be long before the Jamaican judiciary, supported by all well-thinking Jamaicans, especially lawyers, will be telling you to pack your bags and go.

Peace and love.

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