Justice must be clear to all - Velma Hylton's 'crucifixion' was of her own making

Chris Bovell, Guest Columnist

I have resisted writing on this subject in spite of the many articles and even cartoons which The Gleaner has published on this topic. The issue has been wrongly projected as being that Velma Hylton, in her own character, was not a fit and proper person to be a commissioner for the Tivoli enquiry because of statements she made as the attorney leading evidence for the commission of enquiry into a previous similar Tivoli operation by the security forces.

Gordon Robinson has written an article in the In Focus section Sunday titled 'Velma's crucifixion'. The article falls into the same error as if Ms Hylton is being personally crucified, and quotes several legal cases and other irrelevant matters in support of his argument that there was no good reason for her to step down.

However, he has not referred to the 'In Re Pinochet' case (House of Lords, January 15, 1999), which is the leading case on why a judge should not sit in a case where there is the possibility of the appearance of bias. In that case, Lord Hoffman was on a panel of the House of Lords which heard the issue of Pinochet's extradition to Chile. There was a rehearing on the basis that Lord Hoffman was connected to Amnesty International (AI), which was involved in the case.

There was no suggestion of Lord Hoffman being biased, but there was the appearance that he could have been biased because of his connection with AI, and the case had to be reheard by a full panel of the House of Lords.

I will quote from a few of the judgments, although the full judgment of Lord Browne-Wilkinson should be read in its entirety. The judges referred to the very well-known and classic statement of Lord Hewart, CJ, in Rex v Sussex Justices, ex parte McCarthy (1924) KB 256, 259, where he said it is "of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done" (my emphasis added).

Lord Hope said, "Where a judge is performing a judicial duty, he must not only bring to the discharge of that duty an unbiased and impartial mind. He must be seen to be impartial."

Also, Lord Nolan said, "I would only add (that is to the other judgments of the law lords) that in any case where the impartiality of the judge is in question, the appearance of the matter is just as important as the reality."

I hope no one thinks that the principles in the Pinochet case are any different when applied to a commission of enquiry, as they are both judicial functions.

Justice beyond question

The point is that no one should be saying that Ms Hylton is biased or could not have the independence of mind to hear the evidence fairly and come to an unbiased decision. No one can question her ability as an attorney (Lord Hoffman is recognised as being one of the most brilliant English judges for the last 50 years at least, and no one questioned his integrity).

What is important is the appearance to the public that the person may be biased. Gordon Robinson is a very good lawyer; so are the minister of justice and the attorney general. That's why it is very difficult for me to understand why, from the outset of Desmond McKenzie's objection to Ms Hylton, they did not readily concede that a mistake had been made.

I think the minister of justice did say at the beginning that the Government was not aware of the facts quoted by Mr McKenzie, but he did not say anything after that publicly that I saw or heard, but the attorney general is reported as saying more recently that there was no merit in the request for Ms Hylton to step down.

I only hope that readers will understand more clearly the issues involved. I have no doubt Ms Hylton did, and she did the correct thing, but she should have been saved the misplaced debate that has raged for at least two weeks.

Chris Bovell is an attorney-at-law. Email feedback to columns@gleanerjm.com and cdrb@cwjamaica.com.