Dennis Minott | The Hanta death of accountability in modern Jamaica – Part Two

Compounding the cultural and structural paralysis is a palpable fear of institutional destabilisation. Many judges in fragile democracies harbour an acute anxiety of appearing ‘too activist’. They dread allegations of judicial overreach or the weaponised charge of interfering with an elected executive. 

Consequently, courts drift towards excessive restraint even as executive power becomes increasingly muscular. Justice Andrew Smikle, a former Court of Appeal judge, wrote in the Jamaican Law Journal (2021) that “judicial restraint in Caribbean democracies has crossed the threshold into judicial passivity”’ particularly in cases involving government defendants.

Yet judicial restraint must never be confused with judicial passivity. Modern Jamaica increasingly exhibits the precise indicators that make an assertive judiciary vital: expanding executive authority, emergency-style legislation, fractured public trust, concentrated economic power, and a pervasive perception of selective accountability. According to Freedom House's 2025 Nations in Transit report, Jamaica's ‘Judicial Independence and Rule of Law’ score declined from 72 out of 100 in 2019 to 64 out of 100 in 2024, marking the steepest decline in the Caribbean region.

Consider the anxieties surrounding proposed legislative frameworks like the National Resiliency and Reconstruction Act (NaRRA). In 2024, the Ministry of Justice published draft provisions that would have granted the prime minister's office emergency powers to override land use and property-acquisition decisions without prior judicial approval, citing ‘national resilience’. Public consultations held in Kingston, Montego Bay, and Spanish Town in August 2024 drew over 2,000 citizens who raised constitutional concerns, according to the ministry's own consultation summary. Jamaicans reasonably asked: Where are the constitutional guardrails? More importantly, if those guardrails fail, will our courts act robustly and promptly enough to matter?

That question now haunts the republic. Modern democracies rarely collapse via the dramatic choreography of a military coup. Instead, democratic erosion is incremental, technocratic, meticulously lawyered, and elegantly wrapped in the language of national necessity, modernisation, and efficiency. This pattern was documented by the International Institute for Democracy and Electoral Assistance (International IDEA) in its 2024 Global State of Democracy Report, which identified “gradual executive aggrandisement through legal means” as the primary threat to democracies worldwide.

Precisely for this reason, courts must possess the institutional courage to utter a simple, timely constitutional word: ‘No.’ Not five years after the fact. Not after endless procedural trench warfare has left the citizenry as exhausted spectators to legal attrition. They must say it while the constitutional injury is actively occurring. Otherwise, judicial review risks becoming a purely ceremonial exercise - a beautifully worded, ornamental artefact observing consolidated power long after the battle for accountability has been decisively lost.

The Hanta virus metaphor now demands its full examination. Virologists will tell you that the most dangerous aspect of a haemorrhagic fever is not the initial infection but the cytokine storm - a catastrophic overreaction of the body's own immune system that ultimately destroys the patient from within. The virus tricks the body into attacking itself. Jamaica's accountability crisis exhibits a similar pathology.

The initial infection was not created by our judges or our courts. It was transmitted through a colonial legal inheritance that prioritised stability over scrutiny. The British-designed savings clause, which shielded pre-independence laws from constitutional challenge, was the original viral particle. It embedded the principle that certain exercises of power should remain beyond judicial reach.

But the cytokine storm - the self-destructive overreaction - is our own doing. We have internalised the logic of delay. We have normalised the procedural fog. We have trained ourselves to expect nothing from judicial review except exhaustion. The very institutions designed to protect us have been incapacitated not by external attack but by an autoimmune disorder of our own political culture.

Consider again what the numbers represent in human terms. The average 5.3-year delay for judicial review cases involving government defendants is not a statistic. It is the lifespan of a secondary school student from first form to fifth form. It is the period in which a small business seeking to challenge an unlawful licence revocation simply goes bankrupt and disappears. It is the window in which a community fighting an environmentally destructive approval watches the construction be completed while their case remains stuck in preliminary objections.

The Hanta virus kills through capillary leakage - the microscopic blood vessels that should nourish the body's tissues become permeable and fail. Accountability in Jamaica suffers from a comparable capillary failure. The small, everyday mechanisms of oversight - the routine parliamentary question, the accessible tribunal, the affordable judicial review - have become porous or blocked entirely. Only the large vessels remain: the high-profile corruption trial that takes a decade, the constitutional motion that only the well-connected can afford, the public inquiry whose recommendations gather dust.

Yet there is a vaccine. It is neither expensive nor exotic. It consists of three familiar components.

First, procedural compression. Parliament must amend the Judicature Act to impose statutory deadlines on judicial review applications involving government decisions. The United Kingdom's Civil Procedure Rules, Part 54, provides a workable model: permission hearings within days, substantive hearings within months, and costs sanctions for abusive delay.

Second, jurisdictional clarity. The proposed Constitutional Reform Bill must explicitly empower the Supreme Court to award costs against government defendants who engage in frivolous procedural obstruction. The threat of financial consequence is a proven deterrent against Stalingrad tactics.

Third, cultural inoculation. The Norman Manley Law School and the UWI Faculty of Law must embed mandatory clinical education in public-interest litigation. A generation of lawyers trained to see judicial review as a routine accountability tool, rather than an exotic last resort, would transform the legal culture from within.

The Hanta virus is survivable. Early intervention, aggressive monitoring, and supportive care dramatically improve outcomes. The same is true of the accountability crisis. The warning signs have been visible for years: the Integrity Commission reports gathering dust, the Auditor General's findings ignored, the judicial review timelines steadily lengthening. But unlike a viral pandemic, this crisis has no external pathogen. We are both the patient and the physician. The alternative is not a dramatic collapse. It is a slow, haemorrhagic bleed of public trust, drained one postponed hearing at a time, until nothing remains but the exhausted acceptance that accountability is a word without weight. The courts must choose: remain passive observers or become the constitutional guardians our democracy desperately needs.

Dennis Minott, PhD, is the CEO of A-QuEST-FAIR. He is a multilingual green resources specialist, a research physicist, and a modest mathematician who worked in the oil and energy sector. Send feedback to: a_quest57@yahoo.com or columns@gleanerjm.com.