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DA Response to Grenada
And, We were Misled
Local vs Privy Council
Thank You Dame Eugenia
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Travels and Travails
Trade Gap - USA & DA
In Case You Missed It
".. Your Love to Town"
Mad Men not to be trusted
Politics of Lies & Deception
Wide, Deep Transparency
Petrocaribe $ Bird Island
Nations Shall War No more
My Feeling of Insecurity
China, Admiration & Envy
Capitalism: Wounded ...
© Gordon Moreau
LOCAL JUSTICE AND PRIVY COUNCIL JUSTICE
(NOVEMBER 5, 2004) - There is no doubt that the Public Service Union had a valid grievance. When one's salary is adjusted downwards it is difficult to adapt. I believe all Dominicans understood that, so the fact of their hardship was never questioned and is not here being challenged.
They went to court on the matter and the normal result must be a win for one party and a loss for the other. The legal process does not end there: one can appeal to the Court of Appeal, and can further appeal to the Privy Council. I can understand expressions of disappointment, perhaps even anger. Human institutions, systems and processes are imperfect. But I am not sympathetic with imputation of improper motives on the part of anyone.
The recent decision has even provoked sentiments that it provided evidence the Caribbean Court of Justice (CCJ) will be incapable of dispensing justice because of politics. Thus we should not abandon white people justice, which on ultimate appeal, will be dished out by the Privy Council. If that is what we believe, then by all means, let us display some maturity and go through the appeal process like people who believe in the rule of law. The alternative would be to involve Jah or to rely on mob rule.
Even if we want to invoke Jah to make the decisions at Court, I do not believe Jah would be interested in the job. And it seems that resorting to crowd or mob rule has not necessarily worked well in the past.
I am reminded that as Christians you may have been part of the crowd that chose Barabas instead of Christ, and that when the judge showed mercy and good sense (if not courage) you insisted that the innocent man be put to death:
"HIS BLOOD BE UPON US AND UPON OUR CHILDREN."
Two thousand years later I still find those words chilling; I cannot see what would motivate me voluntarily to want my children to pay for my crime.
The bizarre ironic twist should not be lost on us. Not long before, the mob was eager to conform with the law/practice of the times: a woman who committed adultery was to be stoned to death. Christ pronounced a thumbs down to the death penalty:
"LET HIM WHO IS WITHOUT SIN CAST THE FIRST STONE."
Since then many great men have argued for the abolition of the death penalty. The great French philosopher, VOLTAIRE, was prominent among them:
"LET US LEAVE THE PUNISHEMENT BY DEATH TO GOD."
Most of Europe has now legally abolished the death penalty (in the courts!!!). That does not dilute passion for committing genocide in Iraq. And it has not prevented them from looking the other way while Israel does the same in Palestine. We must now do a little review of the supremacy of white justice, for better provocation of those among us who advocate it without reservation.
In the United States, in every state there are reportedly more black men in jail than in college. Disproportionately, they and other minorities tend to people the penal institutions thanks to the system of justice (or injustice!!).
In recent times DNA technology has been applied to prove some inmates were innocent but were convicted nonetheless.
A well-known defense lawyer said on television (CNN/LARRY KING):
"JUSTICE IS A COMMODITY, AND LIKE EVERY OTHER COMMODITY IT IS BOUGHT AND SOLD."
I interpret this to mean that once you can afford a US$1m or more to hire a dream-team of lawyers you can get away with murder; literally. If you cannot so afford, you will more probably be convicted and sentenced to death.
Let professor HOWARD ZINN educate us on law and justice in the USA:
"The courtroom, one of the supposed bastions of democracy, is essentially a tyranny. The judge is monarch. He is in control of the evidence, the witnesses, the questions, and the interpretation of law. In the mid-1980s I was called as a witness by some people in Providence, Rhode Island, who had done some small symbolic damage at the launching of a nuclear-armed submarine, in protest against the huge expenditure of money for deadly weapons and the escalation of the arms race. I was to tell the jury about the importance of civil disobedience for American democracy.
The judge would not let me speak. From the very first question - "Can you tell us about the history of civil disobedience in the United States?"- as I began to answer, the judge stopped me. "Objection sustained," he said loudly. I had not heard any objection from the prosecuting attorney.
Indeed, at this point the prosecuting attorney, a young man, spoke up, "Your honor, I did not object."
"Well," said the judge, "why didn't you?"
"Because," the prosecutor said, "I thought the question was relevant."
"I disagree," the judge said with finality.
I was not able to say anything to the jury. It was clear the judge was furious at those antimilitary protesters and was determined to send them to prison. They were facing a felony charge, calling for ten years in prison, and a misdemeanor, calling for one year in prison. The prosecutor, obviously not convinced that these defendants were dangerous criminals, perhaps a bit sympathetic to their cause, dropped the felony charge, telling the defendants, confidentially, that he did that because he was sure the judge would give the defendants the full ten-year sentence."
(HOWARD ZINN - PASSIONATE DECLARATIONS ESSAYS ON WAR AND JUSTICE, pg 135).
But what of the Privy Council?
The RAHOOL Case reached the Privy Council. It ruled that the death penalty in Trinidad/Tobago was unconstitutional. The attorneys-general of Trinidad/Tobago, Barbados and Jamaica petitioned the Privy Council for a re-hearing before the full board of nine (9) judges. The Privy Council reversed itself. Within a few months, the nine overruled the earlier decision.
So much for your doctrine of infallibility of white justice.
Criticism of Caribbean professionals should not only be free; it should also be fair. So no apology is offered for an attempt here to redress the balance.
Who says a Caribbean Court of Justice must necessarily malfunction or distinguish itself through miscarriage of justice? Clearly, the CCJ would have to adhere to the long-established precedents in Commonwealth jurisdictions.
Neither should we forget that the Caribbean has given the international community its share of prominent jurists. Among others, we have KARL HUDSON-PHILLIPS (Trinidad/Tobago) who is a part-time judge at the International Court of Justice. Sir DENNIS BYRON (St. Kitts) is now serving as a judge on the War Crimes Tribunal for Rwanda, now seating in Tanzania. I am proud of the performance of Mr. PATRICK ROBINSON (Jamaica) now presiding over the UN War Crimes Tribunal seating at The Hague trying former Yugoslav President Milosovic. Mr. Robinson has demonstrated that he was not selected merely for his smart and pretty gowns, or for pomp and circumstance, but for substance.
At the local level, I have great respect for the work of Mr. ANTHONY ASTAPHAN (Dominica) in his capacity as attorney-at-law. He is also an adviser to the current administration. This means half the population respects his political pronouncements and the other half spurns it. His politics effectively detracts from his considerable professional accomplishments.
I had occasion to interview Mr. Astaphan and I found out that he can laugh at himself. The joke was on him in the Observer Radio Case in Antigua, which he lost before the Privy Council. The judges told Mr. Astaphan that he was "not within 100 miles of convincing their lordships."
In the Marpin/Cable & Wireless Case his team held its own against some of the best in England. The Privy Council held that monopoly constituted an infringement of a person's right of freedom of expression.
In Jaundoo v. Attorney-General of Guyana, the Privy Council held that a citizen could not get a coercive order (e.g. an injunction, or a mandatory order to pay) against the State. That decision stood for thirty (30) years, until the case of Gairy v. Attorney -General of Grenada.
Mr. Astaphan convinced the Privy Council that it was a colonial and archaic ruling that should not stand in the face of a modern civilized democracy and constitutional government. In that case, the Privy Council also reversed itself, and determined in favour of Mr. Astaphan.
In the recent case of Francois v. Attorney-General of St. Lucia, Mr. Astaphan lost badly at the Court of first instance. We heard all about it in Dominica. The Court of Appeal overturned the court below. I did not hear about that in Dominica. Francois sought leave to appeal to the Privy Council. The Court of Appeal rejected his application on grounds that his appeal was without merit.
Mr. Francois applied for special leave directly to the Privy Council. The Privy Council dismissed his application for leave on grounds that it had no prospects of success and ordered him to pay costs both at the Privy Council and at the Court of Appeal.
By the way, Mr. EDWARD SEAGA, Opposition Leader in Jamaica, fought all the way to the Privy Council in a tax matter determined against him in the courts below. Seaga lost before the Privy Council.
I have said all that with high hopes that we will choose to follow due process without maligning our lower court(s). Otherwise we risk embarrassment in a situation where the dispensers of justice in the Privy Council uphold the decision of the lower court(s). Their dispensation and ours may not always be as different as is popularly believed.