Be careful what you ask for ...

Gordon Robinson, Contributor

I see that the foot-in-mouth disease has spread. Way back in April of this year when I first wrote on the now notorious Manatt, Phelps & Phillips (MPP) saga, I alerted the readers to my situation as follows:

"Readers should know that I first met Harold Brady in 1974, when we both entered the Faculty of Law. We both graduated from the law school in 1979. He is the "friend of a friend who occasionally doubles as one of my instructing attorneys ... " about whom I wrote some weeks ago. I say this because, in Jamaica, whenever truth becomes inconvenient, we enjoy searching for motives and we relish abusing the messenger and ignoring the message. So, rather than putting you to the trouble of scrambling around searching for ammunition to avoid the many truths herein, I prefer handing it to you on a silver platter. Have fun with it."

Despite popular opinion, especially within the Jamaica Labour Party (JLP), all of the pieces I wrote on the subject (and there were many), were written without any help from Harold Brady, who was as taciturn with me as he has been generally on the subject. I was left to my own devices and had to wade through the public comments made by the protagonists (and there were many) in order to make sense from nonsense and piece together what might have happened.

All this changed on September 27, eight days after the publication of my last column on the matter (and almost two weeks after it was written) when I was asked, by Brady's attorneys-at-law, to accept a brief to act as senior counsel for the proposed claimant in a libel suit to be filed against the Honourable Bruce Golding arising out of statements made by him at a press conference on September 14. I accepted the brief and settled the pleadings when the libel suit became a reality. As a result, I informed ye olde editor that I would not be writing on the MPP saga again until that suit was resolved.

My reasons for doing so were not so much that such writings could prejudice the lawsuit (which is much narrower in focus than most commentators appear to grasp) but simply because I didn't want readers to suspect that any comment I might make on the happenings between August 25, 2009 and September 27, 2010 were coloured by anything I had been told by or on behalf of Harold Brady.

But this latest excitement, namely the promise of a commission of enquiry, is yet another twist to the saga; arises after the suit, and so, can't possibly be influenced by it (and ought not to be used to influence the suit) and is an ex post facto event which needs rational exploration. A commission of enquiry into the Government's handling of the extradition request for Christopher Coke is something that has been widely requested for months, and should be equally widely welcomed. It's a pity that the timing of the announcement permits for unbecoming inferences to be drawn, such as that it might be an attempt by the PM to defuse the public relations debacle that the lawsuit has been used by the media to create, but still, welcome it should be and is.

Watch your mouth

But, my free advice to the PM is that he must watch his mouth lest it become too prematurely 'cocked' and, once again, catches no one but its owner. Commissions of enquiry may only be established to enquire into actions of the Government and its agencies to find out how those actions might have affected the public welfare generally.

Section 2 of the Commissions of Enquiry Act, gives the power to issue a commission of enquiry to the governor general "whenever he shall deem it advisable" for the purposes of enquiring into "the conduct or management of any department of the public service, or of any public or local institution, or the conduct of any public or local officers of this island, or of any parish, or district thereof, or into any matter in which an enquiry would, in the opinion of the governor general, be for the public welfare."

Despite the apparent generality of the last words "or into any matter in which an enquiry would, in the opinion of the governor general, be for the public welfare" which will be construed ejusdem generis to limit their application to persons and institutions similar to those specifically listed before, no commission of enquiry can delve into the private life of a private citizen; the business of any private-sector company; or the conduct or management of any private-professional practice. These are governed by other laws and include, for example, enquiry by the Medical Council into allegations of impropriety by a doctor; by the General Legal Council into similar allegations regarding any lawyer; and, of course, the application of the criminal law statutes and the common law to every citizen.

Anything is possible

How could it be otherwise? Imagine if a commission of enquiry could summon a private lawyer and force him, against the wishes of his private client, to divulge privileged attorney-client information? Or a doctor could be forced to divulge details of a patient's medical history? Mark you, if the client or patient is himself in a position to have the enquiry issued and frame its terms of reference, anything is possible.

So, again, I respectfully ask 'Driva' to be careful while behind the wheel. If, as he has been quoted by The Gleaner, he will not be limiting this commission of enquiry to enquiring into the Government's actions but will advise the governor general to ask it to also enquire into "... the engagement by Harold Brady & Company, of the United States firm Manatt, Phelps & Phillips" then he will either be asking a commission of enquiry to act ultra vires the statute that gives it authority or, alternatively, he will be conceding that the engagement was made on behalf of the Government of Jamaica.

Be careful what you ask for ...

Peace and Love.

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