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News and Views by Dionne Jackson Miller

pointed commentary on current affairs in Jamaica and the Caribbean

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Courts

Does Arthur Williams Have Clean Hands? – Williams v Holness Part 2

Image by David Castillo Dominici at www.freedigitalphotos.net
Image by David Castillo Dominici at http://www.freedigitalphotos.net

There was a collective national gasp in 2013, when, after having been ousted from the Senate by Opposition Leader Andrew Holness, by way of delivery to the Governor General of a pre-signed letter of resignation and a pre-signed letter of authorization to date and send the resignation letter, Arthur Williams revealed that he had crafted those very letters.

There was doubt in some quarters that Williams would even be entertained in the Supreme Court, given his significant contribution to creating the very devices that were used to remove him from the Senate.

When the Supreme Court ruled that the letters were inconsistent with the constitution, contrary to public policy, null and void, the questions were raised again.

How could Arthur Williams benefit from a ruling made necessary by a situation that he himself had brought about? Shouldn’t he have been barred from accessing the court, or at the very least not have benefitted from its ruling? Read more in my post on www.rjrnewsonline.com. 

You’re Fired! (or Not) – Williams v Holness Part 1

Image by master isolated images www.freedigitalphotos.net
Image by master isolated images http://www.freedigitalphotos.net

According to the Supreme Court ruling in the case of Arthur Williams v Andrew Holness, political leaders have no power to revoke the appointment of Senators. The question we are left with is whether they should have that power.

The case has left Jamaicans asking about its immediate impact on the composition of the Senate, with lawyers for Mr. Williams maintaining that he and Mr. Tufton are still Senators while lawyers for Mr. Holness disagree. Read more in my post at www.rjrnewsonline.com.

Stephen Fray’s Appeal is Important

Image by David Castillo Dominici at www.freedigitalphotos.net
Image by David Castillo Dominici at http://www.freedigitalphotos.net

Today, I’m blogging at http://www.rjrnewsonline.com about the latest developments in the case of Stephen Fray, the Jamaican who aws found guilty of multiple charges after he boarded a plane in 2009 with a gun. Do read!

The Judicial Committee of the Privy Council, Jamaica’s highest court, has granted Stephen Fray permission to appeal, a move which will lead to important developments in the area of criminal law. Fray is the Jamaican man convicted in relation to a hostage situation aboard an aircraft at Sangster International Airport in Montego Bay in 2009. Read more here. 

Should There be a Right to be Forgotten?

Image by jscreationzs at www.freedigitalphotos.net
Image by jscreationzs at www.freedigitalphotos.net

I’m blogging today at http://www.rjrnewsonline.com about the controversial “right to be forgotten.”  It’s a fascinating discussion for the Internet Age. Check it out and tell me what you think!

Should you have the right to be forgotten? The phrase sounds peculiar the first time you hear it, but there’s a lively discussion now taking place globally about whether people should have the right to have information about them circulating on the Internet deleted or made inaccessible by search engines. Read more here.

Human Rights Round-Up

Photo by Salvatore Vuono www.freedigitalphotos.net
Photo by Salvatore Vuono
http://www.freedigitalphotos.net

Here are a few of the human rights stories making news around the world that I find interesting.

1. Reparations could be a step closer for the indigenous Maya Achi community in Guatemala, three decades after hundreds were killed to clear the way for a dam to be built.

The Guardian reports that the Inter-American Development Bank (IDB) and the World Bank financed the construction of the dam and survivors have been calling for the institutions to pay reparations for years.

The fresh hope comes as US President Barack Obama prepares to sign a bill that will, among other things, instruct the World Bank and IDB to report on steps taken to implement the provisions of a 2010 reparations plan.

2. The UK government continues to declare that it will not obey a ruling from the European Court of Human Rights that a blanket ban on allowing prisoners to vote was a human rights breach. The stand-off has led to the Justice Secretary announcing plans to curtail the role of the ECtHR in English law, and ensure the supremacy of Britain’s highest domestic court, the Supreme Court.

3. A UK House of Lords enquiry has heard that the human rights of mental health patients are being breached, as some judges are refusing to hear testimony from such patients, the Independent reports.

4. In one of the latest salvos in the war over judicial appointments in the United States, President Obama is being accused, in a case now before the Supreme Court, of violating the constitution in making recess judicial appointments.

5. A man from a Pacific island failed in his bid to acquire refugee status in New Zealand as the world first climate change refugee. The decision was made last November, but I report it here because it is novel and interesting, and you may have missed it.

There is useful comment on the case here. 

2014 Could Be an Interesting Year for Constitutional Law

 

Photo by DJ Miller
Photo by DJ Miller

As Jamaicans continue to test the still new 2011 Charter of Rights and Fundamental Freedoms, we could see some intriguing cases before the Supreme Court this year, such as the issue of the undated Senate resignation letters, a challenge to the buggery law, and a test of the constitutional provision for the right to a healthy environment. Such cases are important in delineating the limits of a constitution and specifying the protection it offers. 

The Undated Senate Resignation Letters

Former Senator Arthur Williams has indicated that he intends to pursue his claim that Opposition Leader Andrew Holness’s use of undated resignation letters to force him and Christopher Tufton out of the Senate violated his constitutional rights. Williams says the letters were intended to be used only in the event of Opposition Senators wanting to break with the party on the Caribbean Court of Justice. If the case goes to conclusion, we could see the court pronouncing on something that lawyers have been arguing over for years – what power, if any, do political leaders have to remove senators who they themselves appointed?

Williams has said he is seeking the following:

“ A Declaration that an undated letter of resignation and a letter authorizing the Defendant to date and use the same which had been signed by the Claimant were used by the Defendant other than for the purpose for which they had been given and therefore were unlawfully used and accordingly are void and of no effect.

 A Declaration that based upon the Claimant’s stated position that he would not resign as   requested, he had effectively revoked the said letters.

 A Declaration that the very fact of requesting these undated letters of resignation from all persons to be appointed as Senators under nomination of the Leader of Opposition is contrary to Jamaica ’s Constitutional scheme.

 A Declaration that the undated letters of resignation are void as being inconsistent with the Constitution by seeking to give to the Defendant the right or power to effect the resignation of the Claimant at the Defendant’s volition.

 A Declaration that by using the undated letters of resignation for the reason that the Claimant did not support the Defendant in the election for leadership of the Jamaica Labour Party is inconsistent with the Constitution of the Jamaica Labour Party and the Constitution of Jamaica.

 A Declaration that the use of the undated letters of resignation on the basis that the Claimant did not support the Defendant in the election for leadership of the Jamaica Labour Party contravenes the Claimant’s constitutional rights to the freedoms of conscience, association and expression protected by section 13 (3), (b), (c ) and (e) of the Charter of Rights.”

Those section of the constitution provide for

(b) the right to freedom of thought, conscience, belief and observance of political doctrine;

(c ) the right to freedom of expression;

(e) the right to freedom of peaceful assembly and association.

 Challenge to Buggery Law

 Then there is the challenge to the buggery law brought by Javed Jaghai. Jaghai is seeking a declaration that;

“The right to privacy in the Charter of Rights and/or the right to equality excludes private sexual activity between consenting male adults from being criminalized under the Offences Against the Person Act (sections 76,77,79) or a declaration that private sexual activity between consenting male adults are excluded from those sections of the OAPA as a matter of statutory interpretation;

An order that sections 76 and 77 of the OAPA will continue to govern non-consensual anal intercourse and anal intercourse with minors.”

 The sections of the OAPA cited are:

76. Whosoever shall be convicted of the abominable crime of buggery, committed either with’ mankind or with any animal, shall be liable to be imprisoned & kept to hard labour for a term not exceeding ten years.

77. Whosoever shall attempt to commit the said abominable crime, or shall be guilty of any assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanour, and being convicted thereof, shall be liable to be imprisoned for a term not exceeding seven years, with or without hard labour.

79. Any male person who, in pub!ic or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be guilty of a misdemeanour, and being convicted thereof shall be liable at the discretion of the court to be imprisoned for a term not exceeding two years, with or without hard labour.

 Right to Healthy Environment

There is also the possibility that within the context of the potential transhipment port development on the Goat Islands that environmental advocacy groups may seek to test the significance of Section 13 (3) (l) of the Charter which provides for:

“the right to enjoy a healthy and productive environment free from the threat of injury or damage from environmental abuse and degradation of the ecological heritage.”

This is an interesting provision in the Charter. Environmental rights are regarded as many scholars as so-called third-generation rights (civil and political rights being first-generation rights, social, economic and cultural rights as second-generation) and there is debate as to the extent of their justiciability. Parliament’s deliberate inclusion of this provision in the Charter is therefore interesting, and I will be eager to follow a court case testing this provision. 

So stay tuned, interesting days are ahead! 

Another Step Forward – Jamaica Launches Child Justice Guidelines

church, oca 092There are many shameful examples of how we have treated our children. Only a few of these are ever made public. The Jamaica Observer reported on one case of a 14-year-old who ran away from home and ended up locked away in an adult correctional facility for a year.

“The police told my grandmother to leave me at the station. They never told me where I was going. When I reached and saw the big gate, I said me just go way fi two day and me a go prison?” she said.

Talk to lawyers in the system, and they will tell you about the injustices, large and small, that children suffer when they come into contact with the justice system. Children locked up for minor offences, forced to miss school, subject to the less than stellar conditions in our correctional facilities.  Jamaica’s Children’s Advocate Diahann Gordon-Harrison told me in an interview of examples where child defendants and victims attending court have to hear their names bellowed out by the police officer on court duty, in the same way adults are treated. She also spoke of child victims in court being carelessly placed next to family members of the defendants accused of abusing them.

It is an accepted principle of treating with children in all spheres that they deserve special protection because of their vulnerability.  Article 3 on the Convention on the Rights of the child says, for example:

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

And of course, it is the poor and uneducated who suffer most. After all, parents with more money can afford to hire lawyers to protect the interests of their children. Many of our poorer children appear in court unrepresented.

This is one of the many issues tackled in the new Child Justice Guidelines issued by the church, oca 093Office of the Children’s Advocate, published in association with UNICEF. Guideline 13 states that:

“The Office of the Children’s Advocate or Duty Counsel on the Legal Aid list is to be immediately contacted by the police where a child suspect is arrested and does not have legal representation.”

Drawing heavily on international treaties and instruments such as the Convention on the Rights of the Child and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the Guidelines deal with all areas in which a child will interact with the justice system prior to incarceration. The Guidelines also address not just the situation of child suspects and defendants but also how child victims and child witnesses should be treated.

For example, Guideline 27 (4):

“The court should guard against and prevent the intimidation and harassment of witnesses by lawyers through methods such as (a) asking irrelevant questions, (b) confusing the child with repetitive and/or rapid questions, repeated interruption to responses or by demanding unrealistically specific times and details (c) shouting at the child.”

  On the questioning of children, Guideline 27 (2) states:

“Given that the attention span of children can be limited, the court should curtail lengthy questioning sessions.”

Guideline 21 (1):  “Children should be transported in vehicles with adequate ventilation and light, and in conditions that in no way subject them to hardship or indignity.”

In relation to Decisions and Sentencing, Guideline 28 (2) says:

(b) Restrictions on the personal liberty of the juvenile should be imposed only after careful consideration and should be limited to the minimum possible time…

(d) The emphasis of the court when dealing with child offenders, should always be the objective of rehabilitating the child.”

 The Guidelines, issued under the Children’s Advocate’s powers under the Child Care and Protection Act, were launched on Universal Children’s Day, November 20, the day the United Nations  Assembly adopted the Declaration of the Rights of the Child, in 1959, and the Convention on the Rights of the Child, in 1989. The new Guidelines are not legally binding, true. But neither were the Beijing Rules, and they have created a highly respected framework for the treatment of children who come in conflict with the law. With the necessary groundwork, so too could these Guidelines.

Cameras Inside Caribbean Courts – If Only!

An English court room in 1886, with Lord Chief...
An English court room in 1886, with Lord Chief Justice Coleridge presiding (Photo credit: Wikipedia)

The United Kingdom continues to modernise its structures and functions. Would that we were doing likewise! Cameras are now allowed inside the UK Court of Appeal, and proceedings are being broadcast live. For the past two years, proceedings in the Supreme Court, the highest court in the UK, have been  streamed live on the Internet.

Not all of the proceedings are being broadcast. Defendants, victims and witnesses will not be shown on camera, but lawyers’ arguments and judges’ statements will be.

The UK  Courts Minister Courts Minister Shailesh Vara said:

“This is a landmark moment that will give the public the opportunity to see and hear the decisions of judges in their own words. It is another significant step towards achieving our aim of having an open and transparent justice system.”

 The Right Hon. The Lord Thomas of Cwmgiedd, Lord Chief Justice of England and Wales, in delivering the Birkenhead Lecture, on October 21, 2013,   also welcomed the move. He said:

“I and my fellow judges welcome the recording of the proceedings. We believe it will help assist understanding of the way in which the courts work and enable the public to see the way justice is delivered in an even more open and transparent manner than at present. I look forward to people to seeing the court as it actually works…”

In the US Supreme Court, transcripts and audio recordings are available to the public. 

English: United States Supreme Court building ...
English: United States Supreme Court building in Washington D.C., USA. Front facade. (Photo credit: Wikipedia)

I look forward to the day when cameras and audio recording equipment are allowed into Jamaican and other national courts of the Caribbean.  In anticipation of the flurry of responses about the need to fix bathrooms, buy law reports and repair roofs and air conditioning before buying cameras, let me say I don’t think we have to wait until the government can afford to broadcast court proceedings, whenever that may be.  

National news organisations would be panting at the opportunity to televise some major trials. Procedures could be worked out to avoid having lawyers and judges tripping over cameramen. Arrangements could be made for a single camera to record, with the tapes to be shared with all interested media houses, or perhaps to provide access via web streaming. Protocols can also be worked out in terms of what may and may not be televised, as has been done in the UK. 

Newsrooms will have no interest in televising the vast majority of court proceedings. However, trials of significant public interest and those that involve important issues of law, constitutional or otherwise, should be televised, for transparency and better understanding of the court procedures. There are several important types of cases that do not attract security concerns, for example, apart from the constitutional cases I mentioned – think the landmark dual citizenship case – select cases in the Court of Appeal, and judicial review cases also come to mind. I don’t think blanket prohibitions are necessary.  This is not beyond us to figure out.

Our traditional methods of relying on accounts of the day’s proceedings from news reporters are no longer adequate in an age of increased openness and transparency. News reporting is severely restricted in terms of the time that can be allocated to any one story. On average, each day’s proceedings can consist of five hours of testimony and argument. A radio reporter will have about 90 seconds of air time into which to condense all that. A television reporter may have all of three or four minutes. Newspapers of course, have more space, but often don’t have as much impact, and certainly don’t have the reach of television.

So I think that the time has come to go beyond our customs of the past 100-plus years. We already have in the region, in the Caribbean Court of Justice, a court which has, through technology, thrown its doors wide open to the public. Proceedings are recorded for both audio and video, and during the Jamaican leg of the Shanique Myrie case, local media houses were able to air excerpts from the proceedings for the public to hear.

We don’t have to wait to do this until “we have the money.” Let’s make a decision that it’s important, enact

English: Sky News television camera.
English: Sky News television camera. (Photo credit: Wikipedia)

the laws needed to allow it to happen, and then work out details afterwards.

I join with the Lord Chief Justice of England and Wales in saying that I too would “look forward to people to seeing the court as it actually works…”

PS: It’s NaBloPoMo in the US (National Blog Posting Month) so I’ve joined the challenge of posting every day during November.

 

 

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