Editorial | Justice Hibbert’s potential conflict

In the normal course of events, this newspaper might have warmly welcomed the appointment of Justice Lloyd Hibbert to the Integrity Commission, notwithstanding the quietude of the act, almost as if his selection was of no moment. Mr Hibbert, for two decades, was a competent judge.

However, it appears that someone, or some persons, didn’t do their due diligence, or didn’t do a good job of it. So Justice Hibbert’s membership of the commission is likely to become mired in controversy, or a debate of conflict of interest, or what, in the circumstance, constitutes such a conflict or the potential therefore. That is good for neither Justice Hibbert nor the commission.

As required by Section 100 (2) of the Constitution, Jamaican judges are required to retire at 70, but they may, with the permission of the governor general, “acting in accordance with the advice of the prime minister, continue in office for such period after attaining that age, as may be necessary, to enable him to deliver judgements, or to do any other thing in relations to proceedings that were commenced before him, before he attained that age (70)”.

Justice Hibbert, who was born in December 1946, retired in 2017. We do not know if he was asked to stay on to complete any case in which he had been involved and, if not, why not. But Justice Hibbert does have an outstanding case, which is now likely to be the source of this conflict of interest, given his new role as a member of the Integrity Commission, unless it will be argued that he has abandoned the case altogether and therefore reposes no interest in it.

In the mid-2000s, the Jamaican Government was in a dispute with Gordon ‘Butch’ Stewart’s company, Gorstew, over who was responsible for overruns in the construction of the Sandals Whitehouse hotel in St Elizabeth, which the Government, through the Urban Development Corporation and the now defunct National Investment Bank of Jamaica, owned two-thirds, and which party should cover how much of the excess. Mr Stewart’s organisation claimed incompetence on the part of the Government’s project managers for the problem and sued for damages to the Sandals brand.

The matter was sent to arbitration. However, before the issues were heard, the Golding administration, in 2011, announced a settlement in which Gorstew purchased the Government’s share of the property for US$40 million, for which the Government provided a US$32.5 million vendor’s mortgage.

In 2011 and into 2012, Jamaica’s then contractor general, Greg Christie, opened an investigation of divestment to determine whether the Government had followed the rules and had got the best deal for the asset. Mr Christie requisitioned documents from Gorstew and sought to interview Mr Stewart.

However, Mr Stewart and Gorstew sought from the courts, by way of a judicial review, a declaration that the investigation was illegal, null, and void and that in this instance, the contractor general was assuming powers that were not in the act. Justice Hibbert, as well as Justices David Fraser and Sarah Thompson James, heard that case in 2013. They haven’t, as yet, delivered a judgment.

A MESSY AFFAIR

In the meantime, Jamaica passed the Integrity Commission Act, creating a new body that assumed the responsibilities of the separate commissions that used to oversee the integrity of legislators, as well as those of the contractor general, who policed how government contracts were awarded and executed. In other words, Justice Hibbert is part of a five-member panel that has ultimate responsibility for the job that the contractor general used to do. And therein lies the conundrum.

If Justice Hibbert now delivers a ruling on the Sandals Whitehouse issue, no matter in whosever favour he decides, he is likely to be perceived to have had a conflict of interest, on the basis of the principle, enunciated by Lord Browne-Wilkinson in the Pinochet case of 1999 that “a man cannot be a judge in his own cause”. In that case, it was determined that a ruling to extradite the former Chilean dictator was unsafe because the wife of a law lord who was part of the panel was an unpaid board member of a subsidiary of Amnesty International, which had campaigned against Pinochet.

We expect that whatever the outcome, the Sandals Whitehouse case will go to appeal, in which event, Justice Hibbert will remain a party to the matter. It is possible, as in its ruling this year, with the delayed delivery of a ruling on the retirement of a Supreme Court judge, that the Appeal Court could order the rehearing of the judicial review before other justices. Even then, it will remain a messy affair in which Justice Hibbert shouldn’t have been caught.