Doing nothing is not an option

A.J. Nicholson, Contributor 

In a debate in the House of Representatives, just after the turn of the century, concerning the ratification by Jamaica of the Agreement Establishing the Caribbean Court of Justice, the then leader of the Opposition, Edward Seaga, expressed the view that the Privy Council was a court from which "pure justice" flows.

Whatever the message the Opposition leader was attempting to convey, the statement was not only unfortunate, but it was an averment that could not be proven to be true. The frailties and the weaknesses of Homo sapiens dictate that pure justice is not something that can flow from him. He may, and does, attempt to dispense justice to the best of his ability, drawing on his experience(s) and his knowledge and usage of the law, but he is not endowed with the capacity, nor is it to be required of him, to travel any further along that road.

Indeed, it was not too long after that utterance in the Parliament that the frailty of judges, including the members of the United Kingdom's highest court, was visibly and forcibly displayed in a matter involving the former Chilean strongman leader, Augusto Pinochet. The judges of that court were, at that time, the only members of the British judiciary who were empowered to sit as members of the Judicial Committee. That, let us be quite aware, is not now the case.

Crimes against humanity

Pinochet, a patient in the United Kingdom, receiving medical attention, was sought by certain entities, including Amnesty International, to be held there by the authorities and extradited to Spain where they wished to have him tried for crimes against humanity. The matter came before the House of Lords, and among the judges who sat on the panel was Lord Leonard Hoffman.

It was later discovered by Pinochet's legal representatives that both his lordship and his wife had ties to Amnesty International. That had not been disclosed by his lordship or the legal representatives of Amnesty, and it was later ruled that the proceedings of which Lord Hoffman had been a part were fatally flawed - there had been a conflict of interest, leading him to act as "a judge in his own cause".

The decision that had been reached by that panel might have been entirely in accord with the law and the comity that must endure between nations and among peoples. The rule, however, in the kind of jurisprudence that is known within jurisdictions in which the common law is practised, is that the appearance of justice is paramount.

No oblique motive

It is clear that Amnesty had an interest in the matter and its outcome. After all, they were champions in the cause. And it matters little that no oblique motive is necessary to be drawn from the failure of their legal representatives to make any disclosure to their colleagues representing the former president, or from his lordship's silence in the matter. There is no issue of any attack upon their character. The question is, was there a real danger of bias, no allegation having been made that his lordship had in fact been biased? The mere appearance of bias was sufficient for what had taken place to be unraveled.

This business of the appearance of justice being done is as much a deeply rooted legal principle as it is a pointer along the road to social justice. No cloud of a personal or business or other interest must hang over adjudications, or over decisions made by persons who are advisors or are part of the machinery of government. It is a principle that helps to keep the balance which is required for the smooth running of society. It causes individuals to feel less ill at ease and it brings to the fore that distinctive atmosphere of fairness which really underpins how we feel about ourselves in our country.

It is well known that the acknowledged pioneer of the thinking, Lord Hewart, then chief justice of England and Wales, established the principle in a famous 1924 ruling - that manifest and undoubted appearance of justice having been done is the endgame. Not only must justice be done, it must also be seen to be done.

The decision arrived at by the committee of which Lord Hoffman was a part might have been just, in the sense of satisfying the test of fairness relating to every interpretation, inference and finding. But, it is a decision that would leave a sour taste, causing unease, when the entire set of circumstances came to be contemplated by a fair-minded and informed member of the public. That unease would be caused not by what actually was done but by what might appear to have been done.

The constant renewal of the call for the death penalty to be carried out in Jamaica, in accordance with the requirements of the law, should serve to remind the advocates of that course of action that it was the very Lord Hoffman who warned his brethren that, if they continued on the course on which they had settled concerning the death penalty, serious problems would come to attend the administration of criminal justice in the Caribbean.

This, he did, in a powerful and prophetic dissenting judgment in one of the capital cases that came in the wake of the five-year stricture laid down by himself and his brethren for the penalty to be carried out after conviction and sentencing. To the extent that the five-year time frame has not been met, the Jamaican society has been off balance since 1993. To that extent, confidence in the criminal justice system has waned. The effective judicial suspension of the death penalty has helped to serve up that debilitating outcome.

Balance disturbed

There ought to be no surprise, since, if a law which touches raw nerves that are hemmed about by deeply rooted emotions and religion and rule-of-law issues is not followed, the balance of the society is more than likely to be disturbed. Lord Hoffman's words have surely come to pass. Something has to be done. Doing nothing is not an option, it serves only to exacerbate the imbalance.

The authorities owe it to the public to choose some course of action. Because of the international trend in relation to the abolition of the death penalty, they may seek to convince themselves and the public that Jamaica may be more highly favoured within the international community, were we to move in that direction. The fact of the retentionists having won the day in the conscience-vote debate in Parliament should be no bar to taking such a course.

Second, the present Opposition has advocated, for years, the eminently sensible approach of effecting an amendment to our constitutional arrangements to remove the five-year stricture. During the death-penalty debate in the House of Representatives late last year, the prime minister pledged to have that route taken. It is a route that is frowned upon by the human rights lobby, but the authorities have to answer to the public, who is their employer.

The authorities cannot be seen to be doing nothing. That is a fundamental rule of governance. Not only must the authorities do something, they must be seen to be doing something. That is how confidence is engendered. That is one of the bases on which citizens are moved to assist and volunteer, including rendering assistance in the fight against crime.

Unfathomable reasoning

For me, the reasoning behind the arbitrary setting of that five-year time frame by their lordships continues to remain quite unfathomable. They pointed out, in that same judgment, that the advisory opinion of the European Court of Human Rights was that, in such matters, a seven-year time frame is appropriate. And yet, their lordships saw fit to impose five years for these jurisdictions, which happen to be outside of the European Union.

The fair-minded and informed member of the public would be entitled to ask whether all of this amounts to pure justice. For, whatever the idea of "pure justice" is meant to convey, it certainly does not, and can not, give rise to an outcome in which problems in the administration of our criminal justice system increase, certainly in the sense that public belief and confidence in the rule of law continue to lessen

When rulings of a court give rise to such unease that the appearance of justice is not manifest and undoubted, there must certainly be mechanisms by which corrective measures may be employed. In the Pinochet matter, the House of Lords took the sparingly used route of reversing itself. Doing nothing was not an option.

Another quite appropriate route is for the legislature to move to ameliorate the situation. And, neither is this route anything other than sparingly used. But there are settled circumstances in which it is quite in order to take that course, and that must not be seen as being indifferent to, or any less respectful of, the cross that judges must bear.

In their report, the members of the joint select committee of parliament that, for years, deliberated on the provisions of the proposed Charter of Rights and Freedoms, left it to the members of the legislature to decide on the course to be adopted regarding this issue of the death penalty. The public interest requires action from the executive and Parliament. Doing nothing is not an option.

A.J. Nicholson is Opposition spokesman on justice. Feedback may be sent to columns@gleanerjm.com.