Bias revisited

Ronald Mason, Contributor

The question of bias, real or apparent, has become a recent issue for comment in Jamaica. The many judicial fora have made popular the phrase "that justice should not only be done, but should manifestly and undoubtedly be seen to be done".

The prevalence of the use of this maxim should support the claim that its usage is always appropriate and fully understood. However, since it was used in judicial proceedings in 1924 by Lord Hewart, CJ, the longevity has not meant comprehension.

I am grateful to the firm of Nunes, Scholefield, DeLeon & Co for its publication, 'Judicial Bias? - An Unpleasant Taste'. In the interest of public education, I shall reproduce segments from the article.

The Constitution of Jamaica Part 20 - 2 has established the standard by which proceedings shall be conducted. It states: "Any court or other authority prescribed by law for the determination of the existence of the extent of civil rights or obligations shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other authority, the case shall be given a fair hearing within a reasonable time."

We, the people, witnessed a parliamentary spectacle last Tuesday which has its genesis in this part of the Constitution. It relates to the appointment of Velma Hylton, QC, as a commissioner to enquire into the events of May 2010 in Tivoli Gardens. It is not the first time bias has been raised in Jamaica. It was raised in Perkins v Irving in 1997. Yes, the said Motty. It was raised in matters related to the chairman of the commission of the enquiry into the events in West Kingston on the weekend of July 7, 2001. Déjà vu. Raised in relation to events in West Kingston, the 2010 version.

Appearance of possible bias

It is clear from the discussions that few have bothered to research the matter, as there seems to be little understanding of the essence of the legal principles involved. There is a vast difference in law between 'appearance of possible bias' and the 'actual existence of bias'. Only the former, i.e., 'the appearance of bias', is required to trigger removal.

Bias is a somewhat nebulous concept, almost impossible to ever prove in most cases, hence the stringent requirement. For how do you prove that which is in the mind? Maybe even in the deep recesses of the subconscious mind.

A test for apparent bias has found its way into jurisprudence and stated as follows: "Whether the events in question COULD give rise to a reasonable apprehension or suspicion on the part of fair-minded and informed members of the public that the person would not be impartial." This does not mean that the person must necessarily be biased as a consequence of the known events, but that there was a risk that a reasonable person could think there might be the appearance of bias in the particular circumstance.

The application of this test to the matter of Velma Hylton, QC, in the undenied quote attributed to her, must be seen in this prism. The fact that she was only acting as the attorney for the commission when the statements were made is not likely to be dispositive. All statements made by her in that capacity are attributable to the commission itself. They form part of the commission's record and not the standalone utterances of a mere observer or bystander.

No retraction

In applying this test, appearance matters. Context matters. One cannot disregard that the early comments attributed to Ms Hylton, QC, related to the said geographic area, Tivoli Gardens, and the stated use of deadly force and resultant tragic loss of multiple lives. This does not mean that Velma Hylton, QC, is not an excellent lawyer. This matter is to be viewed in the context that she chose to make the utterances and the statements have not been tested as being legally correct, but here comes the reasonable person's interpretation and suspicions of bias.

One must also address the time that has elapsed since the statements were made. More than 12 years. There is nothing to provide that the bias, as perceived, diminishes over time. To achieve a different perception of perceived bias, there would need to be some retraction of this controversial statement. To date, I can find no record of a retraction or a conversion which would evidence a different state of mind.

It is instructive that reports have surfaced that the minister of justice did not take into account the issue of bias in making the selection of Ms Hylton, QC. He is an eminent attorney and he is to be relied on to make this known to Cabinet colleagues. Let us hope that the standard is incorporated and adopted before the enquiry begins.

It is good that this debate is now ongoing. Jamaica has demonstrated a strong affinity to defer where hard police actions would be involved. The main vehicle to defer has been the commission of enquiry. Let us set forth the standards. Strange, I hear my late grandmother making mention of Lot's wife. The standard has been around, but only recently discussed for application.

Ronald Mason is an immigration attorney, mediator and talk-show host. Email feedback to columns@gleanerjm.com and nationsagenda@gmail.com.