Judicial review - A complex, widely misunderstood process

Gordon Robinson, Contributor

I see that a full court of the Supreme Court has disqualified Justice of Appeal Boyd Carey from the Financial Sector Adjustment Company Enquiry (FINSAC).

Without commenting on specifics, I am disappointed in our justice system entrusting the adjudication of the actions of both an eminent former Appeal Justice and eminent Queen's Counsel to judges whose combined legal experience struggles to match either of those judged. In my opinion, that is unfair to those judges, and inconsiderate of the respondents' seminal contributions.

I expected the chief justice to chair the panel herself and ask two senior judges to join her. But a judgment is a judgment, and all concerned know where to go if they disagree.

I have noted the legal furore that orders were made disqualifying eminent Queen's Counsel, despite his not having been named as a respondent. Talk-show lawyers have tried to defend this legal oddity. One has been quoted as basing this defence on the fact that Queen's Counsel swore to an affidavit in the matter.

Such nonsense would mean that under the law, witnesses are now as much at risk of penalty as any litigant or accused person. Sadly, this is not the first time something like this has happened, as I recall a magistrate once sentencing a resident to six months' imprisonment (suspended for a year) despite his not being charged with any offence.

Unlucky chap

The unlucky chap was attending court on behalf of his corporate employer (who was charged and pleaded guilty) and found himself personally penalised, based on a statutory provision making company officers who were wilfully involved also culpable. When the matter was appealed, the magistrate's written reasons included that the officer hadn't denied participating in the offence, thus summarily doing away with the irritants of the presumption of innocence and the need for formal charges to be laid. It took the Court of Appeal two minutes to remedy that egregious wrong. So, no need for panic. If he has been legally wronged, eminent Queen's Counsel knows where to go.

I repeat, I am making no comment on or critique of the judgment. Nor am I criticising any of the learned counsel who appeared in the matter, as each and every one of them was simply doing their jobs as civil advocates, just as Harold Brady was doing his as a private commercial lawyer privately retained in the Manatt, Phelps & Phillips saga. But I will say how sad I am that two great men have been dragged down in the eyes of ordinary Jamaicans by these proceedings, which I consider to be nothing but raw politicking from start to finish.

The enquiry itself was, in my opinion, born of vicious, bitter, vengeful politics as everybody knows what took place in FINSAC almost 20 years ago, and the country has more urgent current affairs in need of formal enquiry. But I consider the retaliatory efforts to discredit and disqualify Boyd Carey equally sordid. Somehow, R.N.A. Henriques has been caught up in the political maelstrom. I want the Jamaican people to know that whatever the legalities of the situation are (and this is a prime example of the fact that sometimes, the law can be an ass), based on my many years of appearances in courts over which Boyd Carey J.A. presided, this great jurist has not a biased bone in his body (certainly no more so than all of us have our preconceived notions about everything), and his integrity and celerity are second to none.

Personal integrity

I have been a colleague at the civil bar with R.N.A. Henriques, QC, for over 30 years, and I can say without fear of contradiction that he is a giant among civil advocates; possesses a brilliant mind; and is a sterling example of honesty and integrity, the like of which no longer exists in today's 'dog eat dog' world.

I haven't heard a peep out of the Bar Association in defence of these career professional colleagues' personal integrity. Why? In my view, it is at least partly due to the simple reason that Boyd Carey was routinely disliked when he was a sitting judge here due to his impatient, abrupt style and extreme intolerance for mediocrity, which was clearly still evident as he chaired the enquiry proceedings, and, of course, R.N.A. Henriques doesn't have a popular profile, what with his appearance of wealth and privilege (appearances can be deceiving), and his long-term ties to one of the biggest and most successful law firms in the country.

These are not persons who attract widespread support in the modern dispensation of preference for the celebrity of 'cultural diversity' as exemplified by the Ragashantis and the Bounty Killas of this world. More power to them, they have their contributions to make, but to drag the names of these great men into the mud on the altar of political gamesmanship is unconscionable. And both sides of the political fence had a hand in this result. Be careful what you ask for.

Only self to blame

But I suppose they only have themselves to blame. There is abundant evidence as to what happens these days when one accepts political appointment. Anything goes. I expect many more to follow me into hermitage.

This and another recent example bring the judicial review process into sharp focus. Judicial review is a highly specialised, complex and widely misunderstood process developed in England to deal with the proliferation of administrative tribunals exercising delegated governmental authority. It was intended to protect citizens from abuse of this delegated state power.

It was never meant to protect the State from citizens nor one sstate institution from another. The process has its roots in the constitutional conventions of monarchical systems (and the monarch's "prerogative" to protect her subjects from exploitation in her name). It is questionable whether it is transplantable to countries with written constitutions explicitly protective of fundamental human rights.

Even where judicial review may be appropriate, it is meant to correct actual injury (adverse effect), and so it is at least arguable that it doesn't apply to the proceedings of commissions of enquiry, whose members are appointed by the Queen's representative, and whose results are advisory, only with no penalising consequence.

Maybe it is time for our lawmakers to take a serious look at the entire judicial review process, study its history, and decide whether it is still appropriate in our already overcrowded court system, or a duplication of remedies already available elsewhere.

Peace and love.

Gordon Robinson is an attorney-at-law. Feedback may be sent to columns@gleanerjm.com.