Gordon Robinson | What do we really know?

Knowledge, like everything else in this mortal toil, is subject to the laws of relativity.

Let’s take a simple example like names. I know several women whose birth certificates name them Janice but who insist their name is Janis (probably dreaming of a train ride with Bobby McGee). I know of at least one Susan who says her name is Suzanne. There are several Adrians who think they were named after a Roman Emperor. On the other side of things, many women named Patricia are humiliated daily by others (usually men) calling them Pa-tree-sha!

So what am I getting at? Why am I highlighting pronunciation dysfunction that may have several causes including an inopportune sneeze by new Mum or Midwife?

This is my introduction to a primer on Advocacy at the Civil Bar.

You heard me. Advocacy is a very relative skill. My protégés in civil advocacy have often heard me say (so many times that they hit the snooze button as soon as I begin) there’s a huge difference between what you “know” and what you can prove in court. That difference is often of Grand Canyon proportions and bites you in the rear end frequently enough that some (the good ones) soon learn that they “know” nothing. They only think they know.

Don’t believe me? Ask Sergeant Shultz!

So we finally get to the point which is the lengthy delay of game penalty that is likely to be inflicted on Mark Golding if he actually implements his latest promise to take the matter of Declarations of States of Public Emergency (SOEs) to court for a constitutional test. Whether this threatened lawsuit will materialize is something about which, as Liz Truss might say, “the jury is still out” because we all know what politicians’ promises are worth so much so that PNP could easily stand for Promises Not Performance.

But PNP has been (correctly in my opinion) calling the SOEs unconstitutional since January 2019 yet never taken the matter to court. Why? This playing of political games with Jamaicans’ fundamental rights while PNP uses party whips to block Government’s policy implementation in Parliament was highlighted in my column ( November 27; Another Political Football Game) when I wrote;

“For the umpteenth time, Mark Golding told MPs, from a lofty perch of superior certainty, that the PNP had an opinion from eminent counsel on this since 2017 (sic). So why not sue? Why not clear this up once and for all?”

Oops, sorry, it was really from January 2019.

I essayed my own suspicion as to why the bag a mout’ but no action:

“I haven’t read that opinion (which Golding keeps as close to his chest as if he were CEO of a private company in a legal dispute with another private entity). But I’ll bet dollars to doughnuts that the reason the PNP uses such a supercilious tone without actually acting on the issue is the PNP was probably advised that any legal challenge would be iffy at best because SOE provisions are drafted to kick in once the governor general (GG) ‘is satisfied’ one or more of the constitutional pre-conditions are present. You and I may disagree with the GG as much as we like but a court is unlikely to overturn his SOE declaration unless a Claimant can prove there was NOTHING in real life or in the advice he received upon which GG could’ve hung his hat and declared ‘I am satisfied’.”

When faced by Journalism icon Dionne Jackson-Miller with this evidence of PNP’s breach of its duty (as Opposition) to stop making contested assertions that it had means and endless opportunity to prove if it could, Mark Golding conceded that maybe PNP should’ve done so but would probably do it if Government went the back-to-back SOEs route.

So Government has called his bluff.

Will he” or won’t he? On Wednesday, he told Dionne the final decision had not yet been made but preparatory work had already began.

Yawn!

This is an Opposition mired in shambolic inconsistency. For months PNP has called for “Vale Royal Talks” (whatever the granny gungus natty those are) to resume. So, over Christmas, PM Holness announces the talks would be held early in 2023. Immediately Mark Golding does his best to derail the talks by publicly demanding specific agenda items. For pity’s sake, man, is there nothing PNP won’t politicize?

Just attend the talks. Keep as quiet as you can until they are over. Then you can tell us all the things you thought should have been discussed or you were prevented from discussing. It’s time to put Jamaica first. Putting (some) people first won’t cut it anymore.

We should get back to back-to-back SOEs. I agree they are obvious devices to circumvent the Constitutional provisions preventing SOE extensions without super-majority parliamentary approval. That’s what I think I know. But what can I prove?

Constitutional Law is a unique area of the legal system. It isn’t like ordinary law where courts can go all over the place to try to put an interpretation on a Statute in order to do justice to the parties before them. Constitutional interpretation begins and ends with the actual text of the Constitution. There can be no implied terms; no inferences. The “intention of Parliament” is a non-starter as it has been even in Statutory interpretation for a long time.

The only issue to be put before the court will be whether, in relation to the Claimant, the strict text of the Constitution has been breached. Even if it has, Government will be at liberty to call evidence to show that the breach was “demonstrably justified in a free and democratic society”.

Not only are these obstacles higher than most pole-vaulters can leap they are set against the background of the “I am satisfied” pre-condition to the declaration of any SOE. But there’s more.

Loopholes in the law are always available to be exploited without sanction. This is why commercial and tax lawyers are so wealthy and civil advocates so poor. This is why tax avoidance is legal but tax evasion illegal. The Constitution is silent on the specific issue of back-to-back SOEs so it can’t be proven that any such action by Government breaches any provision of the Constitution. Additionally Government has been very cute about its avoidance of Parliamentary extension. Each new SOE seems to me, on a cursory read, to include areas not covered by the previous one. So how do you PROVE that it’s a mere manipulated extension of the one before?

Then there’s the “demonstrably justified” hurdle. If I was representing the Government in this yet-to-be-filed challenge (perish the thought), unlike the debacle that took place at the NIDS trial challenge, I would provide the Constitutional Court with detailed evidence of the security forces’ reports and recommendations that led to the Governor General’s declaration. I would call the National Security Minister to give evidence as to dangers perceived by his Ministry and Cabinet that caused them to concur with the security forces. I’d call the GG as a witness to tell the court why he signed the Declaration.

Unlike the torrent of ineptitude that swept away Government’s defence of the NIDS challenge (a challenge I supported wholeheartedly but didn’t expect such an easy passage) I expect the new Attorney-General to ensure Government is represented by a team led by a Senior Counsel experienced in civil litigation and especially Constitutional Law to guarantee, on behalf of the Jamaican people, that this case is decided by a court having all the facts, circumstances and appropriate legal submissions available to Government.

Peace and Love.

- Gordon Robinson is an attorney-at-law. Send feedback to columns@gleanerjm.com.