Delroy ChuckTHE POWERFUL judgement of the Privy Council in Clinton Bernard vs The Attorney-General of Jamaica should send a stern and timely warning to state employees, especially members of the security forces, that the abuse of public trust cannot be tolerated but, will it? When power is entrusted to anyone, it must be exercised with care, restraint and sound judgement which, sadly, is more the exception than the norm.
Over the years, the rights and freedoms of the Jamaican people have been whittled away, as successive legislatures sought to empower the security forces to fight crime and lawlessness it has not worked. It is probably time to reverse the trend, if only to stop the abuse of public trust. Every public servant should read the case of Clinton Bernard. It explains the inextricable link between "the risks to others created by an employer who entrusts duties, tasks and functions to an employee" and the harm that may be caused to those who, ostensibly, they serve. Wherever power is exercised, there is always the risk of abuse.
EXPERIENCE SHOWS
In the English case of Lister, where a warden of a boarding school had sexually abused resident children, Lord Millet noted: "Experience shows that in the case of boarding schools, prisons, nursing homes, old people's homes, geriatric wards, and other residential homes for the young or vulnerable, there is an inherent risk that indecent assaults on the residents will be committed by those placed in authority over them, particularly if they are in close proximity to them and occupying a position of trust." That, too, is the experience in Jamaica where prisoners and their families have been subjected to terrible abuses in lockups, prisons and on the outside, even though only few cases have been prosecuted. Hopefully, Clinton Bernard's case will encourage many others to pursue justice and redress, lest the abuses continue.
Clinton Bernard's case has dispelled the notion that the state cannot be responsible for the unlawful and wrongful behaviour of the security officers. The Court of Appeal had mistakenly held that the state was not vicariously responsible for the behaviour of Constable Paul Morgan, as "By his unlawful action in shooting and injuring the respondent the constable could not be seen as acting in the lawful execution of his duty." Still, Bingham JA, in recommending an ex gratia payment, declared: "That I find it necessary to express myself in such extreme undertones, is due in no small measure to the state of the law as it relates to vicarious liability which, on the uncontroverted facts in this case, now appears to be occurring with the most alarming regularity and cries out for justice to be done. Such a cry can only be answered by the state instituting some measure of reform aimed at assisting the many innocent victims of the barbarous conduct of agents of the state."
It is time we let it all hang out. The increasing empowerment of the security forces has not been salutary. It has been a disaster. It has not curbed the criminality and lawlessness. It has not made the security forces any more efficient and effective in the pursuit of criminals and in solving crime. What the increasing empowerment of the police has done is to create a whole cadre of cowboy, ruthless and insensitive policemen who care little for the human rights, liberty and life of ordinary Jamaican citizens. I don't blame the policemen, I blame those who consistently entrust power and authority to young, improperly trained and brazen policemen. I blame the government and the established authorities that fail to control, sanction and boot wayward policemen when they deliberately do wrong.
OUT OF CONTROL
Amazingly, with crime out of control, we hear the cries of silly and asinine commentators and citizens, who want to give more power and authority to the security forces. I simply ask them to check out the past month or year and examine the howling cries of communities around Jamaica that have experienced the brutality, injustice and abuse of the police. Sadly, it will continue, as the state seems to lack the will to prosecute, punish and curb the brutal excesses that happen virtually every day. The authority and image of the Bureau of Special Investigation, the Office of Police Responsibility, the Public Defender, the Police Public Complaints Authority and the Director of Public Prosecutions have been so completely eroded that they are devoid of the trust and confidence of the people and no longer serve any useful purpose.
The PPCA has been deprived of resources and personnel and unable to carry out its function properly, which is actually what has happened to almost every public institution or agency. The abuse of public trust, the wrongs that go unpunished, the injustices committed daily, the corruption filtering throughout the society, and the failure of the state to protect the innocent and vulnerable send a chilling message that the state is in crisis. If we are unable to read the compelling signals emanating from every corner, then we have only ourselves to blame when anarchy overwhelms the land.
Delroy Chuck is an attorney-at-law and Opposition Member of Parliament. He can be contacted by email at
Delchuck@hotmail.com.
