A.J. Nicholson | Lawyers’ lament – bullseye

The complaint of lawyers – some strident, others murmuring – is entirely meritorious should it be true that, in the recent Privy Council ruling concerning their obligation to report suspicious financial transactions, the issue of the inescapable impact of the “informer fi dead” phenomenon has not been satisfactorily addressed.

History records that the mastermind behind the transformation of the Judicial Committee into the Great Imperial Court of the British Empire was Henry Lord Brougham. As early as 1828 during the preparatory phase, he publicly raised the issue of “removing colonies from the Privy Council’s jurisdiction on the grounds of distance from the UK and the immense variety of matters arising from them which would be foreign to British habits”.

Today, almost 200 years on, the “informer fi dead” experience is foreign to British habits. In Jamaica, the phenomenon is pervasive and has mightily deep cultural roots.

Lord Brougham’s discerning concerns remain the encompassing reason for the former colonies over the years moving away from the British court and establishing final courts within their own spheres of influence.

The unchangeable, far-reaching purport of his observations was what grounded the consensus that long existed in Jamaica for the creation of a regional final court in substitution for the UK-based institution, purposefully championed by the regional and the local Bar.

A Gleaner editorial in March 1901 echoing His Lordship’s concerns, highlighted the negatives evident in continuing to rely on the Privy Council as the final appeal court, observing that:

“...latterly the character of the appeals has varied very much and have involved questions of complex legal range and jurisprudence which are altogether different from the principles that are in force in England.

“The legal members of the Committee are the highest judicial authorities in the land, yet it is impossible for them to transport themselves completely into the circumstances and systems that rule in the colonies and dependencies. And it has frequently been remarked that the decisions have been characterised by poverty of appreciation of the points raised and they have not given the satisfaction which the judgments of such a tribunal ought to impart”.

The lawyers, of course, could not be seeking to lay blame on their Lordships in London; they offer their service and Jamaica is free to accept, with the positives and with the deficiencies. The celebrated Lord Hoffmann, addressing members of the legal profession in Port of Spain in 2003, explained:

“Although the Privy Council has done its best to serve the Caribbean and has effected improvements in the administration of justice”, he reminded and for which gratitude must be forthcoming , “the remoteness of the court serves as a handicap ... (A) local final court would be beneficial and necessary to transform society in partnership with the other branches of government”.

SAME CONCLUSION

As between their Lordships in the Privy Council and counterparts in the Caribbean Court of Justice, the same conclusion might even be arrived at in each of their judgments on this issue of fundamental concern to the legal profession.

The important difference is that, final judgment from their Lordships in the region would, of necessity, have carefully examined and comprehensively dealt with the “informer fi dead” issue, and in a manner that would lend required assistance to the lawyers in the performance of their duties.

The enriching link between access to justice and sustainable development, as Lord Hoffmann diplomatically shared, speaks both to the litigant citizen being able to approach his courts of justice unimpeded, and to the tribunal being attuned to the environment in question to be able to render acceptable, wholesome justice, that is to say, without “handicap”.

Therein lies the reason for the farsighted, progressive policy initiative of the Patterson administration that the provisions of the new and improved Charter of Fundamental Rights and Freedoms should have come to be interpreted and deliberated upon by judges who understand and appreciate the circumstances in which we live, breathe and have our being in ‘our place in the sun’.

No issue can reasonably be taken with government members eagerly enthusing, exulting even, over the recent Privy Council judgment. However, in the interest of the proper administration of justice and respectful adherence to the rule of law, the governing party cannot irresponsibly and uncaringly be selective in acceptance of Privy Council rulings.

Intolerably, they have treated with disdain the game-changing ruling on this very issue – a ruling sought by themselves and others, including the Bar Association – which seeks to empower our economically challenged majority, and to cure the defect identified in Lord Brougham’s hallowed concerns, The Gleaner editorial highlights, Lord Hoffmann’s advice, and now the lawyers’ complaint.

Which brings us again to the lawyers with whom the exercise began. It was the regional and the local Bar, at the start of the Commonwealth Caribbean Independence journey during the 1960s, which initiated the historic exercise to address Lord Brougham’s hallowed concerns.

NO DEBATE

There is no debate: the landmark initiative for a regional final court in substitution for appeals to the Privy Council was the brainchild of the lawyers. In Jamaica’s case, an activist Jamaican Bar Association never forsook the development of the project for a moment throughout the entire preparatory stage to the birth of the court in 2005.

Surely, however, they could never have regarded their project as having reached its conclusion until Lord Brougham’s misgivings came to be finally addressed by Jamaica acceding to the regional court.

Inexplicably, the last time that the Jamaican Bar Association has made any public statement or challenge to the authorities for Jamaica to complete the exercise was seven-plus years ago, in 2015.

For upwards of seven years, a strangely docile Bar Association has stood by, seemingly resigned to a situation in which across the wide expanse of the Commonwealth, no former colony has recorded any thinking or activity directed against the initiative to abolish appeals to the Privy Council that approaches the vehement, mystifying resistance encountered in this jurisdiction, emanating from a section of the authorities.

And when a direct, awakening inquiry as to their prolonged silence was recently made of the Bar Association by Justice Seymour Panton, their reply was totally unremarkable.

Well, this is the outcome: Bullseye! Regardless of their complaint, this judgment that will forever impact lawyers in the practise of their profession has to be accepted and embraced. The hope is that salutary lessons have been learnt.

Realistically, then, it would have been sadly unthinking of the membership of the Jamaican Bar Association to expect that, failing to raise an assertive voice for so very many years, giving rise to the perception that they had abandoned their progeny, could have led to a different outcome.

Moreover, embarrassing changes were taking their toll, including to the make-up of the panels to adjudicate on final appeals from Jamaica, and the imposition of visa requirement to enter the UK, among other long-time impediments, warning signals of an unwelcoming atmosphere, for which the Bar Association should have been peppering the authorities to act, rather than appearing to have turned a blind eye.

Such an approach would inevitably generate adverse repercussions coming back to bite, as here, giving rise to the lawyers’ lament: Bullseye!

- A.J. Nicholson is a former minister of justice. Send feedback to columns@gleanerjm.com