Gordon Robinson | Constitutions and republics

After 60 years we don’t understood what a written Constitution means.

So we continue to submit to Backra Massa’s Judges and treat their pronouncements, including on Jamaica’s Constitution, as Gospel. Just as we did when working on Massa’s plantation!

But. They. Are. Not. Gospel. They may not even be right. What they are is last so we must implement them until we exorcise that colonial demon.

Take their latest assault on lawyer/client confidentiality. Jamaica, kowtowing to Big Brother, added lawyers to banks as persons who must police customers. Crucially, lawyers must report suspicious transactions (STR) to the General Legal Council (GLC) that is empowered to share information with F.I.D. Never mind lawyers aren’t banks and don’t keep clients’ transaction moneys anywhere but in banks.

Naturally lawyers bawled blue murder and claimed breach of constitutional rights of privacy, liberty and freedom. But, boiled down to gravy, lawyers are understandably fearful of reprisal for STRs in an “informa-fi-dead” culture. Banks are seen as amorphous but everybody knows their lawyer personally and where to find him/her.

Massa’s Judges admitted the POCA regime breached lawyer/client confidentiality (privacy) rights. But, because of international treaty obligations and inter-governmental Financial Action Task Force dictates, they found the breach “demonstrably justified in a free and democratic society”. Massa’s Judges considered the breach of confidentiality “less serious” than one of Legal Professional Privilege and compared it to routine disclosure of documents in civil cases.

Well, I hope clients hauled off to prison because lawyers turn informants also consider it less serious. Or lawyers dragged to the same gated community for preferring life over STR.

Massa’s Judges showed confidence in “general law” and “judicial review” to solve any problems arising from abuse of POCA powers. As Noah sarcastically replied to a disembodied voice claiming to be God “Right!”

We keep talking “Republic” yet cling embarrassingly onto judges with zero experience in any Republic. We haven’t yet come to grips with what it really means to become a Republic.

In a real Republic “Judicial Review” of administrative action has one purpose - to test constitutionality. In a Monarchy, “judicial review” remedies are His Majesty’s Prerogative Writs created to ensure powers delegated by His Majesty’s Government to ordinary subjects aren’t abused. It’s how a Monarchy with an unwritten “Constitution” pretends subjects can claim administrative action “unconstitutional”. But, because Monarchs must retain absolute authority, subjects must beg for “leave” to apply for Judicial Review.

If we do away with His Majesty we must do away with English style Judicial Review and review administrative action, as citizens’ unfettered right, for constitutionality alone (which includes “fairness”). But, if exercise of a power may need review for constitutionality, why isn’t its grant unconstitutional?

A true understanding of written Constitutions includes realising fundamental terms can’t be implied into them. If a word is in the plain text (like “privacy”) Judges can interpret its meaning and extent. But they can’t, as the Privy Council did in the celebrated 1977 Gun Court Case (Hinds v The Queen), infer “separation of powers” into a Constitution that includes nothing of the sort simply because branches of Government are created in separate parts of the document.

This is rubbish and disregards not only the Constitution’s written text (MPs/Ministers have dual constitutional roles) but also the reality of zero separation between Executive and a Parliament that ignores MPs’ constitutional role as lawmakers alone. For 60 years we’ve turned a Parliamentary constituency representative into a constituency Godfather whose hand is felt in every Government activity there.

Yet we retain an island wide network of Councillors. Why? To shield MPs from allegations of “influence”?

Wi nah reddy!

In my lifetime I’ve recommended many persons/companies for jobs. I’ve never recommended anyone I didn’t know, trust or for whose competence I couldn’t vouch. I’ve recommended friends and business associates who qualify as above but never recommended a company in which I’m invested or from which I expected anything in return. So, after 60 years of political convention, until we change that rotten system, no MP should be hounded or vilified by innuendo unless there’s EVIDENCE of quid pro quo.

It’s insane, in our system of intentional constitutional disregard, to expect MP to recommend someone unknown/unconnected. The Constitutional issue here is MPs, Constitutional creatures, shouldn’t be receiving recommendation requests. They should be removed from any Executive Government function.

But we don’t understand written Constitutions. So, until we do we’ll continue down this garden path electing Godfathers twice per decade then expecting to “eat a food” from them.

Peace and Love.

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