Justice for all?

Congratulations to Jamaica's new attorney general, Ransford Braham, on his recent appointment.

It must've been difficult for him to have it bruited about that he was Driva's third choice for the job behind Hugh Small (allegedly vetoed by the party) and then Clive Mullings (allegedly thwarted by Samuda's refusal of the mining ministry), but it doesn't surprise me that, in considering the offer, he ignored any personal pique and put Jamaica first. It was also recently reported that Braham was Driva's defence lawyer in Harold Brady's libel suit which, if true, would make it the rumour that he was the second of Driva's personal lawyers on a shortlist of three for the job.

Well, this is one time when, regardless of rumour, an excellent appointment is being made. I can tell readers from personal experience that Ransford Braham is one of the finest young (well, young to a dinosaur like me) civil advocates in the country. Furthermore, he possesses a solid moral centre, a passion for public service, and an independence of thought which will serve him well in his new post.

Much has been published about the attorney general's role and whether or not he should sit in Parliament. Once again, this only exposes pundits' confusion, exacerbated by Westminster's obfuscatory effect, regarding how our governance structures should work towards the ideal of separation of powers. Parliament's primary purpose (should be its only purpose) is constituency representation. Even the Senate, albeit imperfectly composed of political appointees, is itself essentially representative because senators are appointed by elected representatives and its objective is as a check and balance to MPs' work. Elsewhere, Senates are themselves constituted by direct election, making their representative nature pellucid.

Accordingly, I believe the pure role of attorney general is incompatible with him sitting in Parliament in much the same way that the role of Cabinet minister is inherently irreconcilable with that of MP. This despite the contradictory strictures of a Constitution erroneously drafted in a blinkered attempt to codify Westminster (a.k.a. achieve the impossible).

Essential to sit in Cabinet

Cabinet, however, is a different matter. The Constitution makes it clear that the AG's post (created in Chapter 6 'Executive Powers') is part of Jamaica's executive. Accordingly, there's no reason why the attorney general shouldn't be a Cabinet member. Since, unless he's also appointed minister, he can't (another constitutional error in my view), I consider it essential for my attorney general to sit in Cabinet and give on-the-spot advice that might thwart egregious error before it becomes policy and also help to craft executive policy with input from his unique constitutional perspective. The constitutional presumption that the AG shouldn't be a minister doesn't derogate from that concept.

The inclusion of a specific exception allowing the AG to be appointed a minister like any other establishes that there's nothing constitutionally wrong with the AG's presence in Cabinet meetings. It, therefore, follows that we can get the best of both worlds by separating the AG from ministerial responsibility but yet having him at Cabinet meetings. In my opinion, as a constitutional member of the executive, the prime minister should ensure that the AG sit at all Cabinet meetings in his capacity as legal adviser to the Government. By this novel method of treating the post, at last we'll have at least one Cabinet insider who doesn't have to take off his policy hat and put on his representative hat every Tuesday, Thursday or Friday.

not the Government's lawyer

Importantly, please note the AG is, constitutionally, "the principal legal adviser to the Government of Jamaica" and not the Government's lawyer. Talk-show regulars referring to the Government as the AG's 'client' are mistaken. The AG advises, not represents, GOJ. Like every other member of the nation's executive, the AG's client is the citizenry. Accordingly, the AG's most crucial task is to ensure that he make Government aware, on our behalf, when it's stepping outside the boundaries of the Constitution, the supreme legal instrument intended to delimit government's powers. He must be careful in advising GOJ to first consider citizens' rights and then, when those are deemed secure, look about how best to legislatively implement proposed policy or how to deal with legal situations as they arise from the implementation of policy.

One of the first matters upon which Ransford Braham might be called upon to advise is the consequence of the Supreme Court's recent striking down of some obviously flawed amendments to the Bail Act.

Despite public squeals from our solicitor general regarding his disappointments in the decision, all persons with any appreciation for the right to personal liberty were offended by the amendments when they were rushed through Parliament (despite howls of protest from civil society) and applaud the judgment. Most pundits, including the new minister of justice, have expressed agreement with and lack of surprise at the decision which leads one to wonder how it was that the amendments became law in the first place. Who was the legal adviser that either failed to warn of the provisions' obvious unconstitutionality or neglected to resign when his/her advice was ignored?

It'll be Braham's responsibility to advise GOJ as to how persons already unconstitutionally deprived of their liberty under these draconian errors of judgement should be treated. Unconstitutional legislation remains in force until it's struck down by the courts, and so anybody suffering by any decision taken by a court pursuant to the bad law mightn't be entitled to legal redress.

But is that all there is to a Government's responsibility to remedy a palpably unjustifiable wrong perpetrated on its own citizens, notwithstanding dire and repeated warnings from all and sundry? Or do constitutional rights begin only at Tivoli? How will an AG with a strong moral centre advise? Will he propose compensation for the victims, even on an ex gratia basis, if not finding enough to support a claim for abuse of public authority? Or will he play Miss Daisy to Driva's Hoke? Let's see.

The separation of his post from the Ministry of Justice and the appointment of Delroy Chuck as justice minister are inextricably intertwined with Braham's appointment. Chuck has long aspired to this post. Now it's his. What'll he do with it? Specifically, what are his views on the hot inter-related issues of the Privy Council/CCJ dichotomy and capital punishment? Will he abide the current policy for capital punishment? What are his real views on the subject? The Privy Council is dead set against capital punishment. Is this why Delroy supports the Privy Council?

Strong arguments against capital punishment

In 1979, before the Internet era, Chuck wrote a series of articles on capital punishment for the Barbados Advocate newspaper (not available in Jamaica). In Barbados, some were published in a 1980 book titled Should We Hang?. Therein, he submitted strong philosophical arguments against capital punishment, including:

"I don't deny that society has the right to punish a criminal, and the right to make the punishment fit the crime, but to kill a man for punishment alone is an act of revenge. Nothing else ... .

My primary concern here isn't compassion for the murderer. My concern is for the society which adopts vengeance as an acceptable motive for its collective behaviour. If we make that choice, we'll snuff out some of that boundless hope and confidence in ourselves and other people which has marked our maturing as a free people."

Chuck was very specific about the inherently discriminatory nature of capital punishment. He quoted with approval 1968 testimony before a US subcommittee on the death penalty from former Ohio Governor Di Salle:

"During my experience as governor of Ohio, I found that the men in death row had one thing in common; they were penniless. There were other common denominators ... but the fact that they had no money was a principal factor in their being condemned to death. I've never known of a person of means to go to the chair ... . It's usually the poor, the illiterate, the underprivileged, the member of the minority group - the man who, because he's without means, and is defended by a court-appointed attorney who becomes society's sacrificial lamb ... ."

The future of capital punishment

Then, after a particularly graphic description of an actual hanging, Chuck gave his unequivocal view on the future of capital punishment:

"The ritual which our society engages in to get rid of the murderer destroys our belief in the inherent dignity of man. It's incumbent upon any society which seeks to take a step forward towards civility and concern for human decency that official murder should be removed from its penal sanctions. Hanging the murderer is an expediency which belittles our concern for and value of human life."

In a stinging postscript on what West Indian political leaders ought to do about it, Chuck wrote:

"How much longer will the territories of the Caribbean perpetrate capital punishment? The answer lies in the boldness, integrity, and vision of our politicians. Unfortunately, our West Indian politicians have never been known to be men of vision, nor leaders who are willing to make unpopular decisions in the name of reason, humanity and justice. Our leaders, who are supposed to pave the way towards a civilised, Christian and charitable society, generally support capital punishment on the basis that we're backward, unchristian, and violent societies. But, more important, they are overly concerned with whether they'll be returned to office and, accordingly, they try to make decisions which coincide with the feelings and emotions of their constituents. When will they learn that they are the representatives, rather than the delegates, of the people and thus they can lead us out of the dark to take what Albert Camus referred to as the "great civilising step, by abolishing state violence and murder. When our leaders are prepared to take this bold step, it'll be the dawn of a new hope for a restless people."

Delroy, now that you're a "West Indian politician" and "leader", will you learn? Do you have the same vision you had then? Or has it been blurred by "the feelings and emotions of ... constituents"? Will you advocate for "the great civilising step"? Or will you take the path of least resistance and seek re-election instead?

Peace and love.

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