Law, bias and democracy

Robert Buddan - POLITICS OF OUR TIME

Three recent findings are of great political interest for one reason or another. Two of the three were by the Office of the Contractor General (OCG). One found that there was no basis to support charges of corruption against Colin Campbell not the People's National Party (PNP) in the Trafigura case based on what the OCG's investigations found.

The contractor general said he doesn't know enough because Mr Campbell has not cooperated and has obstructed justice. Mr Campbell said he has said what he can. Bruce Golding had charged corruption and had said in 2006 that the whole PNP government should have resigned. There was not even need for a commission of enquiry, he said.

In the other case, the OCG found that there was an irregular and improper arrangement in so-called 'sweetheart deals' between the PNP government and Peter Bunting's former company, Dehring, Bunting and Golding (DB&G) in 2004. Audley Shaw had made the allegations in 2008. Peter Bunting said the arrangement was normal and that the OCG had not found anything illegal nor corrupt, as implied. Mr Bunting has explained why in a statement.

The third case involved the decision of Jamaica's Supreme Court. The court found that Justice Boyd Carey should not continue as chairman and commissioner in the commission of enquiry into FINSAC's intervention in the financial crisis of the 1990s. Judge Carey was a 'delinquent borrower' to a financial institution involved and could not be a judge in his own cause. The FINSAC case was propagated by the Jamaica Labour Party (JLP) as an example of mismanagement by the PNP government. The JLP established a commission of enquiry in 2009 but its hearings were suspended when it was discovered that the chairman, Judge Carey, had himself been a FINSAC client and was probably an aggrieved client.

POLITICS VS LAW

The decisions exonerated the PNP or, at least, failed to produce any incriminating evidence of corruption requiring a government to resign. But though the PNP was not condemned by the rule of law, it has been condemned by the rule of politics. The elections have come and gone and public opinion has given its verdict. In the propaganda market, an image had stuck and perception lingers. Since 2004, the propaganda has been relentlessly drilled into the public mind.

The court case into the FINSAC enquiry is fascinating for another reason. Democracy, in an important sense, is a contest between the rule of truth and law on the one hand, and the rule of interest and politics on the other. That is why it is so important that there is independence between the judiciary, aspiring to the former, and the executive likely to represent the latter.

This is an accepted principle of democracy. So, it was astounding that Dorothy Lightbourne turned it on its head to declare in the Senate that the Jamaican executive had a perfect right to decide whether Christopher Coke should have been extradited. It was extraordinary. Jamaica's democracy gets stranger by the minute.

The FINSAC decision reminds of some sacred principles in law. Lord Bingham (House of Lords, 2004) said that the rule of law requires that any tribunal set up to establish issues between citizen and citizen or citizen and state should be impartial and independent. Jamaica's Supreme Court said that a man may not be a judge in his own cause. This is the principle that disqualified Judge Carey. The court did not say that Carey was biased. But it did not rely on that. It relied on another well-known principle. Justice should not only be done, but be manifestly and undoubtedly seen to be done. Carey did not disclose his interest in the issues. Neither did he withdraw himself from the commission.

The court found, by this line of reasoning, that there was also possible unconscious bias on the part of the counsel to the commission who was acting as its legal adviser. It found that RNA Henriques had connections to a company that had dealings with FINSAC.

If we make a parallel between the commission and the Cabinet, Carey and Golding, the respective chairman of each, and Lightbourne and Henriques, we will see the danger in Lightbourne's argument. The executive cannot rule over the judiciary. Golding was too close to the Coke situation, politically. His judgment was tantamount to a man being a judge in his own cause.

International legal expert in that case, Professor David Rowe, had once said the Government had been acting like Coke's legal defence. Thus, it refused, for a long time, to let the matter go where it truly belonged, the real court of law, not the executive's court of politics.

The Supreme Court ruled that it did not matter if the chairman of the commission was free of bias. His connection to the matter was grounds for his automatic disqualification as 'judge' in the matter. In the parallel case of the legal adviser to the commission and legal adviser to the government, the question of bias is relevant too. The Jamaican court said unconscious bias was possible in the former's case. So, in principle, one would not have to prove conscious bias on Lightbourne's part. The possibility of unconscious bias was always present.

RULE BY LAW

That is why the independence of politics and law, that is, executive and judiciary, is so important. So, why doesn't someone take Bruce Golding and Dorothy Lightbourne to court and have the court apply the same disqualification from the executive to them as it applied to Judge Carey and the legal adviser to the commission? The difference is that while judicial interpretation holds that democracy is based on the rule of law, the political interpretation is that democracy is not based on rule by law. Rule of law is not the same as rule by law.

There are similarities between the legal and political models in the British tradition. Both represent an adversarial model. In a two-party system, two sides argue for and against an issue like lawyers do in court. A judge presides and a jury decides. The judge is like the judgmental mind of public opinion and the jury is like the electorate. One side wins and the other side loses - winner-takes-all. But, the parallel ends there.

The political process is much less formal than the legal process and is not as rule-based or evidence-based. Democracy is not so completely without rules, though, as to be a state of anarchy and mob rule. It is somewhere between. Some democracies are closer to being rule-based. They have more laws for criminal or impeachable behaviour. They have better, more independent and more fearless investigative capacities. They have stronger prosecutorial capacities as well. In fact, you have categories of countries regarded as 'high rule of law' as against 'low rule of law' countries. Jamaica is in the latter category and the Coke-Manatt saga has brought the country perilously close to being a rogue democracy. Public opinion and the electorate, democracy's impressionable judge and jury, using its own rules and evidence, will eventually give its verdict.

Robert Buddan lectures in the Department of Government, UWI, Mona. Email: Robert.Buddan@uwimona.edu.jm or columns@gleanerjm.com