By Claude Gerald
Good governance in any territory is about good decisions that prosper public good.
Claude Gerald
When the rule of law, administratively, could be considered fickle, thoughtless and even reckless it shatters confidence in that formal cement that holds a disorganized society in check.
Decision makers at all levels in legal management must be careful not to drum down standards below the moral watermark, a position which man made laws must project to prevent social collapse.
The recent appointment to the Judicial Bench of Ms Paula Gilford (to serve in Montserrat) is cause for some disquiet in a society where the practice of law is losing functional flavor and failing to check the rampant social decadence that is degrading our iconic institutions.
At its foundation law trumpets a practice that is not only nakedly fair but seems to be fair especially with regard to the issue of bias. Conditions that lead one to sense possible bias must be guarded to ensure legal certainty in the first place and no system that promotes social order can afford to ignore such basic tenets.
Fairness is such a highly emotive issue that its outreach is all embracing and lack of it creates anti-social urges, which recycle, overwhelming the vaunted court processes. The court process is duty bound to take the legal high road and lead unfailingly.
Ms Gilford, a Guyanese national worked and lived here in the capacity of lead prosecutor on Montserrat for many years. She departed our shores at the minimum three years ago. She has a sibling in law enforcement. She would have continued to establish professional and other ties to Montserrat, keeping abreast of legal issues including undecided cases that she would have worked on previously.
Some elements of these may appear before her once more and she is expected to adjudicate, a process that is interpretational, discretional and largely subjective especially in areas where the law is weak in guidance.
Practically some specific aspects of Ms Gilford’s work on Montserrat are subsumed by law lover and fierce defender of the public causes, Oris Sullivan, Senior Crown Counsel. His job is to prove the case before an impartial judge. Both have fought many battles on behalf of the people professionally and have been partners in defeat and victory and their close friendship continues to make the gossip circuit sensational and fizzy.
Can we somehow witness a red flag in the cause of justice by this association? In a country in which opinions and positions on issues are so heavily influenced by who are one’s friends and whom one knows, the appointment of a former prosecutor so closely connected with the local criminal system may well be a recipe for disaster.
Warren Cassell, the convicted intellectual property lawyer recently freed is still a prosecutors’ bait facing more criminal charges. It is the combination of Gilford and Sullivan who prosecuted and objected to bail preliminarily against Warren’s conduct, deemed criminal. Sullivan starred in a successful landmark but contentious prosecution. Cassell now faces Judge Gilford as a decider on a quashed charge by the Court of Appeal.
Sullivan is restricted to appear before Gilford at any time. Guessing why is not rocket or geothermal science. Is that nearly enough to even out the prospects of a compromise of fair play? Sullivan is still a part of the prosecutor’s office and unlikely to be ordered not to informally discuss aspects of the troubled attorney’s case at any time with his former colleague, now Judge Gilford. The two potentially are allies that the cause of justice may find humanly impossible to dislodge in a meaningful manner.
Additionally Sullivan’s absence creates labour inefficiencies in the Director of Public Prosecution’s office, overworking staff members and hurting the work of the Crown. Lack of work sees him now appearing in the magistrate’s court presumably.
Cassell recently appeared before Judge Gilford. He was not arrested. He was charged with money laundering. Arrest is a precondition to bail. Neither side raised a bail issue as normal for the Judge to decide. The Judge asked the freed Cassell to post bail as a condition for his ‘release’. Is this not a classic example of a ‘carry over’ from her background as a prosecutor in this particular case? Could this judge display to all that she can rise to the occasion and act in a non-partisan manner? That she has the necessary ingredients on which all proper decision making lies?
Total impartiality is asked of jurors by judges. Impartiality refers to a ‘state of mind of a tribunal or person in relation to the issues and parties in a particular case’ and this concept is critical to the public’s perception of guaranteed fairness. Appointers of judges and judges themselves must stay clear of orchestrating what may seem to be conflict of interest in their work.
Ms Gilford’s perceived closeness to the prosecution may cloud her vision and bias it more in the sphere of a prosecutorial judge. That kind of closeness in a tiny society might risk irreparable damage to the integrity of the court, one which is under scrutiny, certainly on Montserrat, and the Caribbean that has been divided on the accession to the Caribbean Court of Justice, mainly on the extent that impartiality is assured in a region defined by kinship and familial imperatives. In this light there is a real and distinct danger of apparent bias, even if there is no actual bias, since she can be a party to her own causes acting in a judicial capacity. Such flies in the face of the maxim: no man can be a judge in his/her own causes. (nemo judex in sua causa).
The question of an ethical code to guide the behavior of Caribbean Judges is of utmost importance. Enforcing it is an imperative as happens in advanced societies of Canada and the United States of America. Here, emphasis is put on upholding the integrity and independence of the judiciary; avoiding impropriety and its appearance in all activities and performing their duties diligently and impartially amongst other laudable reminders.
Judgment is not about obstructing the path to justice. It is meant to facilitate. It is crucial no matter the degree of challenge it may pose to the functionality of the system that an accommodation be realized in which Judge Gilford recuses herself from any case in which she earlier prosecuted and lead on even in civil matters. One questions the wisdom of not placing her in another territory with less perceptive baggage to her functional acceptance.
It is not for the respective lawyers to determine or proclaim that the issue is issueless. Indecision, compromise and politeness are expected of them all. But rather either the system that appoints, corrects or Ms Gilford ought to do the right thing and stand down as appropriate, with the accompanying stresses to the system.
Dilly dallying with biasing the cause of justice can be wretchedly costly.
Claude Gerald is a social commentator on Montserrat. Find him at ceegee15@hotmail.com
