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Predatory State?

GARFIELD HIGGINS

Sunday, July 20, 2014    

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"A wise government knows how to enforce with temper, or to conciliate with dignity, but a weak one is odious in the former, and contemptible in the latter."

— George Greenville

DOES government in Jamaica exist to protect the citizens within its borders, or is it just a rapacious and unconscionable imposer of taxes and principally a predatory beast?

For years, hundreds of Jamaicans, in particular the poor and dispossessed, have been maimed, killed and/or otherwise emotionally and physically ruined by agents of the state, in particular the police. The vast majority of Jamaicans killed by the police over the last 40 years were never convicted of any criminal actions.

Admittedly, we have scores of vicious, brutal and determined gunmen locally, being 'produced' by crime factories 24 hours a day, 365 days of the year. Like many of the politicians, some elements of the police have evidently situated themselves with the imprimatur of government on untouchable, unreachable pedestals as barons, gods, knights and kings.

I read with shock and horror a story by Barbara Gayle in the Gleaner last Sunday which reminded me that the ubiquitous realities of plantation slavery are still very much alive in Jamaica.

"The Government is challenging a Supreme Court award of $1 million for exemplary damages to a mechanic who was freed of a shooting with intent charge almost five years after a forensic swab of his hands revealed that he did not fire a gun at the time he was charged by the police.

Supreme Court Judge Carol Edwards had awarded 31-year-old Roderick Cunningham of Spanish Town, St Catherine, a total of $3.2 million with interest for general, exemplary and aggravated damages.

In making the award, Justice Edwards said agents of the State had committed an egregious wrong against Cunningham and the onus was on the State "to put systems, schemes and operational mechanisms in place to prevent their employees from acting in this manner".

While not challenging the ruling of the judge, the office of the attorney general is seeking to have the award for exemplary damages set aside on the grounds that Justice Edwards erred in law in concluding that an award for exemplary damages may be made in a claim for malicious prosecution.

This recent manifestation reminds us that government in this country has no shame and quite frankly does not give a damn about the people. What is even more disgraceful is that this is not the first or second or third time that this is happening in Jamaica.

This kind of field slave treatment is a regular occurrence. If there was space in this newspaper I could list scores of examples from Amnesty International reports, local newspapers, local court history and other credible international reports/studies done on human rights abuses in Jamaica.

Just over $3 million of a currency worth less than half of a United States cent is given to a citizen whose life, for all intents and purposes, is permanently destroyed by an agent of the State and the government contests it. What a cruel joke!

Even if Cunningham were to receive the total amount awarded by the courts, more than likely his obligations and the cost of living would gobble it up like snowflakes in hell. Then he will almost certainly be destitute, thanks to the Government of Jamaica. Additionally, Cunningham might not receive a single penny before he is 40 if, and only if, he is lucky.

This kind of injustice does not happen to the immediate relatives/friends or indeed to our politicians, simply because they are the de facto house slaves and plantation owners. They are busy protecting the status quo of their existence.

The question is, when will ordinary Jamaicans realise that the injustice meted out to Roderick Cunningham today, in all probability, will happen to them tomorrow if we do not change the cause of these ailments?

No praise is too high for our courts, the last bastion of protection for poor people in this country. Justice Edwards' reasons for her decision are worth remembering by all Jamaicans.

"Justice Edwards, in awarding exemplary damages, pointed out that handcuffing Cunningham to the bed was oppressive and cruel. She said the continued prosecution of the charges in the face of negative swab results was arbitrary and high-handed.

"The failure to take him to court within a reasonable time to be considered for bail was unconstitutional and callous," she emphasised. According to Justice Edwards, the actions taken as a whole might be considered to be outrageous and extreme.

The judge said the higher the rank or greater the position of the wrongdoer, the greater should be the award because "the public has a greater expectation from persons who hold high office and supervisory positions which is tantamount to a fiduciary responsibility".

In a self-respecting, decent society, government would hold its head in shame, but no, not our Government. 'Fi it shame tree dead', as country people often say. The response of the AG's office is evidence of the rotten state of things in Jamaica.

"The attorney general's office has accepted that there was no reasonable and probable cause to prosecute Cunningham, but says it has to challenge the quantum of damages. The office is also contending that the judge erred in holding that the higher the rank or position of the wrongdoer, the higher should be the award."

If behaviour of the AG's office in this matter is not reprehensible, then what is? Mr Cunningham was treated like a dog and apparently the AG's office seems to believe that he should live the rest of his days scarcely better than one -- a permanently disabled one at that. The evidence from the trial is chilling, to say the least.

"After he was shot, he managed to crawl into a yard and a good Samaritan assisted him inside a house.

"While I was lying bleeding inside the house, the good Samaritan could only pray," said Cunningham in court documents. He fell into unconsciousness and when he awoke he saw... soldiers standing over him.

Cunningham said he was pulled from the house and through the lane until he was placed, along with another man who appeared to be dead, into the trunk of a police car and taken to the Kingston Public Hospital.

He said while he was at the hospital... his hands were swabbed for gunpowder residue. He had surgery on May 17, 2000, and his right leg was amputated. He was subsequently arrested and charged with illegal possession of firearm, shooting with intent and wounding with intent. He spent five days in hospital and was handcuffed to the bed while he was under police guard.

On being discharged from hospital, he said he was locked up at the Elletson Road and Port Royal police stations for two weeks before being taken to the Gun Court on June 2, 2000.

While in custody at the police stations, he said he was in severe pain because the leg was not healed and was not properly dressed. According to Cunningham, he had to hop into court as he had no crutches. He was granted bail on condition that he report to the police station every day, and did so for more than 1,000 times.

He attended court on numerous occasions during a four-year and 10-month period until the case was tried. The trial lasted for six days and police and soldiers testified that he was in possession of a rifle and fired at them.

However, the swab results were negative for gunpowder residue and he was freed on March 16, 2005 on a no-case submission.

Cunningham had sued the attorney general, Superintendent Clifton Laing and Jamaica Defence Force corporal Horace Fitzgerald, for malicious prosecution after he was charged, despite the forensic evidence," the Sunday Gleaner report on July 13, 2014 said.

Any Jamaican who is not mortified by this story needs only to be reminded of what happened in Nazi Germany when too many Jews and Germany remained silent when their neighbours were taken to the gas chambers, only to realise later that their silence was what caused their demise.

The fact that soldiers and police could systematically lie as they did in this trial is especially chilling, even moreso because this kind of behaviour is almost normative in this country.

Some weeks ago, I wrote that the number one problem in this country is the acceptance of low standards and the concomitant low expectations of our people. The acceptance of low standards and expectations in Jamaica are like Abrahamic curses.

"More than the over US$2 trillion in debt, more than the increasing crime and violence, more than wrenching poverty spreading throughout especially rural parts, more than the runaway devaluation of the local dollar which is now worth less than half of a US cent, our collective willingness to hug-up gutter standards, quarter measures, skulduggery, absence of the rule of law, corruption of conscience and consciousness are the greatest harbingers of 'persistent poverty', anaemic economic growth and molasses-paced development." -- Jamaica Observer, June 15, 2014

Unless we get to the point where all of us realise that we need to practically concern ourselves with the injustice that is meted out to those below Cross Roads on a daily basis, those who are not on first-name basis with ministers of government and politicians, those who cannot afford high-priced lawyers, those who are not Brown enough, those whose spoken and written English is not polished enough, those generally who do not have the social, economic and power connections that typically decide who gets what, where and how in Jamaica, then we must continue to expect higher levels of crime and violence, higher personal security costs and greater diminution in our collective standards of life.

"No man has a natural right to commit aggression on the equal rights of another, and this is all from which the laws ought to restrain him." -- Thomas Jefferson

Garfield Higgins is an educator and journalist. Comments to higgins160@yahoo.com

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