Orville Taylor | Justice, truth … maybe we forgot this

Tony Deyal’s article two Saturdays ago in this newspaper had me in stitches as he threw more punches than a drunk bartender and more shades than an artist. Lawyers were in his line of fire as he, essentially, stereotyped them as creatures who have a major allergic reaction to truth. Of course, he was mostly focusing on defence attorneys in private practice and not prosecutors or even judges for that matter.

My question is, how does one sleep at night when he knows that he lied or processed or benefited from filthy lucre? For that reason, I’ve often felt that being Christian and attorney is an oxymoron, with emphasis on the suffix. In a pure world, we are expected to understand what the rules are, obey them, but most importantly, treat others how one wants to be treated. Thus, being unfair to another simply because the legislators created a loophole is ‘good laws’ but inherently unchristian and inhumane. Lies and inequitable treatment are proven antecedents to violence and are inimical to lasting peace. This is not only biblical, but it is also sociological and supported by research.

Taking the place of the ‘other’ is the best guarantee of peace and the true measure of justice. Ask yourself how it feels when someone tells a lie on you and gets away with it or cheats you out of your just due. This is no Esau and Jacob. This is the 21st century.

REPUGNANT AND SOCIALLY DYSFUNCTIONAL

There are some principles in law, which for me are repugnant and actually socially dysfunctional, especially in a society where crime and violence are so high. The principle of ‘pleading the fifth’ or no response in order not to self-incriminate, though a cardinal principle in Commonwealth and American jurisprudence, does not exist in all countries. Indeed, in Singapore, the refusal to respond to questions by the police or court is likely to lead to an inference of guilt. But is not that what normal human relations are about? Imagine a Christian attorney asking his wife, “Did you see your ex when you visited your mother?” and she refuses to respond, based on the principle.

All the canons of the legal profession place a high premium on being truthful. Witnesses can be charged for perjury, and a lying lawyer can be de-frocked. My understanding of the norms surrounding the conduct of attorneys is that there is no space ever for them to make a statement in court, on a legal document or in chambers, which they reasonably know to be untrue. It is also interesting when someone hides behind the cloak of “my instructions are ... .” Indeed, one of my close lawyer ‘bredren’ finds a middle ethical ground by not asking his client if he is guilty, but rather, what do the police say that he did? Thus, he never is burdened with the task of going to court and breaching the tenets of his profession by saying, “My client is innocent!”

Personally, I love the standard of Grand Juries in the United States and commissions of enquiry in Jamaica, which compel witness to testify, even at the risk of self-incrimination.

Still, there is another area of legal practice that is as uncomfortable as haemorrhoids. Two weeks ago, the Jamaican Court of Appeal ruled that funds of an accused attorney, frozen by the courts under Proceeds of Crime Act (POCA), were to remain inaccessible to her. The appeal was based on the need to pay counsel.

COMFORTABLE WITH DECISION

Many attorneys are comfortable with the decision. After all, POCA is very clear about attorneys doing due diligence regarding the source of money that they are handling for their clients in doing their transactions for them. True, the bar is low, and lawyers are not police officers, but the expression ‘reasonable suspicion’ is instructive.

However, while they are required to cross the eyes and dot the Ts when money is being passed through them, there does not seem to be such vigilance when it comes to receiving their fees. So explain to me how a person who earns $11 million but stole $35 million is able to pay any lawyer? Where does an unemployed 23-year-old, charged for robbery or drug dealing, get the money for legal fees? Right to counsel is not akin to right to a particular lawyer.

Of course, there is legal aid, and despite the misgivings, the slate of attorneys comprise very competent people, including senior counsel. However, it must be structured for POCA and all types of accused to have access, otherwise it makes a mockery of equal access to counsel.

Any system, which allows for the suppression of truth, in a society of grave inequalities, is a recipe for disaster. We must teach all who would wish to break the law that whatever their stature, the long arm will catch them.

Until we get there, there shall be no peace.

- Dr Orville Taylor is head of the Department of Sociology at The University of the West Indies, a radio talk-show host, and author of ‘Broken Promises, Hearts and Pockets’. Email feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.