The judiciary can no longer remain mute The judiciary can no longer remain mute

The judiciary can no longer remain mute The judiciary can no longer remain mute

Tuesday, August 04, 2020

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Recently, the Jamaican Bar Association found it necessary to remind all attorneys-at-law of the need to abide by the canons of the profession maintaining the dignity of the courts and the integrity of the administration of justice. This reminder was precipitated by certain statements from some members within the legal fraternity about a case before the court which involved the constitutionality of individuals detained under the Emergency Powers Act. Such statements misrepresented what the court had in fact ruled on.

At the bare minimum, the lesson learnt from this should have been for lawyers, and those in the craft of investigative journalism, who in some instances are lawyers themselves, to refrain from drawing conclusions and making definitive statements in the absence of any formal order from the courts. Alas, this moment passed without heed being taken in respect of the Bar Association's reminder or any lessons being learnt. Proof of this can be seen from public statements that have been made concerning the decision of the court regarding Dale Virgo & Another v The Board of Management of Kensington Primary School et al [2018HCV02728]. In the absence of any written judgement, attorneys, journalists, and even those within the political directorate have moved to make public statements on the interpretation of the court's ruling. Some of these statements have been stretched way beyond the boundaries of jurisprudential thought. They have reignited sentiments of classism and racism at a time in our history when the legacies of colonialism are being revisited in a way never experienced before.

The advent of various social media platforms have made it easy for the instantaneous transmission of such thought and expression of views worldwide. While these platforms provide avenues for giving effect to our constitutional right of freedom of expression, provided for in Section 13(3)(c) of the Charter of Fundamental Rights and Freedoms, they equally provide avenues for misinformation, defamatory, and intemperate remarks. Not surprisingly, therefore, is the current nature of the discourse on Twitter regarding the said case of Dale Virgo referred to above. There is now an open assault upon the judges who constituted the panel that determined this case. This must be condemned in the strongest possible terms. Indeed, the nature of the assault may very well be in breach of Section 9(1) of the Cybercrimes Act, which attracts criminal charges where information is published of a kind intended to incite violence.

For the avoidance of any doubt, the judiciary is not beyond criticism. Indeed, Lord Atkin in Ambard v The Attorney General for Trinidad and Tobago [1936] AC 322 commented that “[J]ustice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.” His Lordship's proviso, however, was that “members of the public should abstain from imputing improper motives to those taking part in the administration of justice…” He continued by saying that criticism should not be for those acting in malice or attempting to impair the administration of justice.

Whereas Canon V of The Legal Profession (Canons and Professional Ethics) Rules ('the canons') states that “an attorney has a duty to assist in maintaining the dignity of the courts and the integrity of the administration of justice”, it is now apparent that more is required to fulfil this obligation. The hallowed and conventional approach in which the judiciary does not publicly respond to criticism needs to be revisited. Having regard to this age of misinformation that we now find ourselves, and which is polluted by various social media platforms, the time has come for a “judicial press secretary”.

In Trinidad and Tobago there exits the Court Protocol and Information Unit. This unit functions as the information and communication arm of the judiciary by executing information, education, and communication activities to create a better understanding of the judiciary and its role in the administration of justice. Given recent occurrences in Jamaica, sadly, the judiciary cannot depend solely upon the legal fraternity to, at all times, set the record straight in the pursuit of upholding the dignity of the courts.

In tandem with the implementation of a judicial press secretary must of necessity be a revision of the canons. As they currently exist, the canons do not specifically regulate the comments or conduct of an attorney-at-law in relation to a matter that is currently before the court. Speaking with absolute certainty as to the outcome of a case yet to be determined is bringing the judiciary into disrepute and can hardly be considered as a case of exuberant optimism. Equally egregious is misrepresenting a court's decision to suit one's personal belief.

The right to free speech does not mean saying anything that comes to mind without any acquaintance with the truth. Democracy in its purest form is not just about the will of the majority, but also the protection of the minority, particularly, for the moment those without a voice.

Peter C Champagnie is a Queen's Counsel in Jamaica. Send comments to the Jamaica Observer or to peter.champagnie@gmail.com.


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