Seaga -originator of back tax policyDon Robotham, Contributor
THOSE OF us privileged to have lived through the 1980s will have no difficulty recalling one of the most effective advertising campaigns in recent Jamaican history.
It arose in connection with an aggressive campaign of the government of the day to collect increased taxes in arrears from the citizenry.
After the usual attractive jingle, the listener was terrified into submission by a menacing voice warning us of "the back tax axe."
Well the Lords of the law certainly let fall that axe this past week and on no less a person than on the very originator of these over-zealous tax policy himself! Maybe jackass is wrong the world may be level after all!
The point that the conclusion of the case against Mr. Seaga in the Government's favour proves however, is not that he is unfit to be the Leader of Opposition or Prime Minister.
Speaking personally, I fail to see how the decision of the law lords (on which more below) could imply any such conclusion in and or itself. Nor should those within and without the JLP see this as the opportunity they have been waiting for to oust Mr. Seaga.
Love him or hate him, Mr. Seaga's statement that there is no one suitable to replace him contains more than a grain of truth.
Nor should those who lay the blame for the non-electability of the JLP (in any case, much exaggerated) at Mr. Seaga's door.
The problems of the JLP go way beyond Mr. Seaga just as the problems of the PNP go way beyond Mr. Patterson. We must try to avoid our usual tendency to personalise everything and look beneath the surface of events.
Arguably, the departure of Mr. Seaga, especially in the present circumstances, would severely weaken the JLP, not strengthen it. Who would one propose to succeed him Mr. Golding? Mr. Shaw? Mr. Bartlett? Be serious.
ACCOUNTABILITY
OF POLITICIANS
What the decision of the Privy Council does is not disqualify Mr. Seaga for high office. He will pay his fine and move on.
No, what is raised here is not legal issues, but matters of judgment. It is that vital matter in Jamaica today the accountability of politicians.
Many of our politicians, in good colonial mode, feel and act as if there is one law for the ordinary citizen but another for them.
Well, this decision says loud and clear that this is not the case. Politicians, like policemen and all of us, are subject to the rule of law.
PRIVY COUNCIL
But there is another ironical aspect to this whole matter.
In recent weeks, two major verdicts of the Privy Council, have led to major financial awards against the Jamaican defendants.
And in both cases, these defendants were among the most vocal supporters of retaining the Privy Council as our final court of appeal. But these two cases to me illustrate the weakness of their pro-Privy Council stance with a vengeance.
The problem with the Privy Council is its distance from Caribbean realities. It does not live in the jurisdiction in which its verdicts are implemented.
It does not, therefore, have to hand the social and other contexts out of which the cases arise. It does not live with the consequences of its decisions. The Lords are sequestered in the United Kingdom and go their merry British way, irrespective of the fallout.
We, on the other hand, live with both context and consequence.
Unless one has an absurd notion of jurisprudence such as that enunciated by Montesquieu hundreds of years ago, that judges are only 'mouths' through which rational justice is announced, then such an arrangement is totally unacceptable.
This is an illusion which few take seriously, either within or without the legal profession, that (as Max Weber once put it) the judiciary is simply a reliable rationalistic machine into which you stuff the case at one end and the only rational verdict possible pops out at the other!
Maybe our legal lights can enlighten us, but as far as I am aware, scholars of various political and philosophical persuasions, have long since established the indeterminacy of the law, as it is called.
What they defer on is the extent and causes of legal indeterminacy, not the fact of it. One does not have to be a flaming legal relativist to agree with those who say the abstract notions of Montesquieu of rational judges reading off perfect justice from an impeccable law, has little bearing on reality legal or otherwise.
In fact, such abstract notions of law really arise out of the Roman law tradition of the European continent and is not really consistent with the English common law tradition.
In that tradition, precedent (read 'custom and culture') is at least as important as statute.
Trial by 'twelve good men and true' (read 'context and consequences') is at least as important as the legal rationality of the venerable judge. This tradition recognises that for there to be justice, the procedure must be close to the context of the case.
Not too close as to be biased but not too far that they are free of the context and consequences of their verdict. The problem of the Privy Council is not its Britishness or colonial or even feudal nature. The problem is its distance from the actual practical realities of the cases on which they render verdicts. These are judges in distant lands, wherever such lands may be located.
JUDICIAL DECISION-MAKING
Judges, quiet as its kept, are after all human beings too. They are not philosopher kings soaring above society in their wisdom.
Montesquieu and legal rationalism notwithstanding, legal decisions are not 'announcements' but interpretations of the law. This is why it is absolutely vital that the context and consequences be an essential part of the real legal process.
Judicial decision-making is a real-life process with enormous real-life consequences for real-life people. It is not a law school exercise in legalistic rationalism.
Laws can be and are interpreted differently by judges of equal wisdom and learning. This is best appreciated in the United States where the struggle around the legal and political philosophies of judges is rightly an open and intense one.
There the British pretence of the judge as a philosopher-king is dropped and there is the most intense scrutiny of the personal, social and political background and allegiances of the judiciary.
There is also a very highly developed sociology of law which basically seeks to demonstrate that legal decision-making is deeply influenced by racial and class background. One does not have to accept the arguments of extreme legal indeterminacy to see that such criticism of legal rationalism ring true.
A CASE FOR THE CCJ
This is why the case for the Caribbean Court of Justice (CCJ) has such great merit. Not on some absurd nationalistic grounds that our judges must be Caribbean or that we must have a black judiciary.
The real point of substance is that justice must be dispensed in the context of the case. In fact, because we are a group of islands, the CCJ arrangement would be ideal, from a jurisprudential point of view. We would be in a position to achieve context as well as distance near but not too near.
The only argument against the CCJ would be the danger of political bias and/or
incompetence.
But I have not seen anyone make such a charge seriously nor would it be consistent with our experience of our judiciary in the region.
One of the things we can be proud of (and which Amnesty International and its local acolytes consistently and arrogantly slight) is that, 41 years after political independence, we continue to have an independent and highly learned and capable judiciary in the region.
Our judicial process grinds very slowly and has many other problems, but bias and incompetence of judges is not a major problem in our system. By and large, they are outstanding world standard. One cannot, of course, know if these two more recent cases had been dealt with by a CCJ they would have come out differently.
What one would say, however, is that if this had been the case, I for one would have had more confidence in the suitability and validity of these verdicts.
Don Robotham is an anthropologist who specialises in development issues in the Caribbean and West Africa.
