Delay tactic?
Gov’t appeal of SOE ruling called a ploy to lengthen wait for men to be compensated
THE move by the Andrew Holness-led Administration to appeal the ruling by Supreme Court Judge Justice Bertram Morrison that the lengthy detention of five men under the states of emergency (SOE) was unconstitutional has been classified as a “delay tactic” by some close to the matter.
According to one source who spoke with the Jamaica Observer on condition of anonymity, the Government’s decision to appeal would lengthen the wait for the men who had sought costs from the State for their ordeal.
“They have filed a notice of appeal which I understand is mere holding ground. They have also requested the transcript from the Supreme Court and the Court of Appeal has also requested the transcript and ordinarily for criminal matters which would be priority because somebody would be in custody, those can take three to five years to be ready. In my view, this will take longer because no one is in custody,” the source stated.
“Unless the Government utilises its links, being that they pay the stenographers, to get the transcript earlier; but ordinarily it will take longer because they have to join a queue. Invariably we are saying that the matter may take a while to be heard. The concern about it is just that I think it is a good methodology for the Government to delay paying any money that they ultimately owe these men for the time they were in custody unconstitutionally,” the source said further.
Former President of the Court of Appeal Justice Dennis Morrison, during a meeting with the media in November, had highlighted the issue of outstanding transcripts for cases tried in the Supreme
Court which he noted had consequences for the conducting of appeals. Speaking at the time, Justice Morrison said there were cases before the court which appeared to be in backlog but which were in actuality hampered because
of the absence of transcripts.
“It’s a serious problem,” he said at the time, noting that the issue was being “taken seriously” by Chief Justice Bryan Sykes.
Speaking in September on the same issue, Justice Morrison said the transcripts for almost 700 civil and criminal cases were still outstanding, months after the appeals had been heard, noting that judges cannot deliver a ruling until the transcripts are made available to them. He said while there are mechanisms to deliver rulings in civil appeals, it becomes a rights issue for criminal appeals given the constitutional requirements to deliver justice in a timely manner.
In February of this year, Justice Minister Delroy Chuck said that by the end of this year the court system would be equipped with technology for the delivery of transcripts within days.
“This technology will make it possible for cases not only to be finished quickly but also when a transcript is needed, or when an appeal is to be heard, it can be done in weeks rather than years,” he stated.
The matter involving the five was heard in the Civil Division of the Supreme Court.
Queried as to the impact of the foregoing on his suppositions, the source said: “In most civil matters there is rarely any transcripts provided because there are no stenographers present. In this particular matter there was a shorthand writer...it is possible for a ruling to be made without a transcript because generally in civil matters transcripts are not even available but in this case a shorthand writer was present,” he said, adding that the situation had all the makings of “a political ploy”.
In the interim, the source said, “all the defence can do at this stage is wait and see what the court will do” or based on further instructions from the men, “file an application for preliminary objection to the appeal”.
In the meantime, the individual said the defence team engaged in the matter had no intention of dodging the legal challenge.
“One wouldn’t want to deprive the Government or the Court of Appeal of an opportunity to pronounce upon the judgement, we are confident that once the Court of Appeal or even the Privy Council looks at this case that they will ultimately come to the same conclusion as Justice Morrison,” the source stated.
Justice Morrison in his September ruling indicated that the detention of each petitioner was “unlawful”.
The men, Nicholas Heat, Courtney Hall, Gavin Nobel, Courtney Thompson, and Everton Douglas, who were all released from custody with the ending of the SOES in August ahead of the September 3rd General Elections, had been held under the measure — some for close to two years — and had challenged the State on the legality of their detention. The matter was heard by Justice Morrison over several days in July.
Douglas, according to the court, had been held from January this year for “177 days and counting without being charged”; Heat from July 2019 for “361 days and counting without being charged”; Hall from June 2019 “for 395 days without being charged”; Thompson from July 2019 “for 365 days without being charged; and Nobles since May of 2019 “for 431 days and counting without his being charged”.
The judge in his ruling noted that the detention time of each petitioner was quite remarkable, having regard to the fact that none of them have been charged for any offence in law. He further noted that there was nothing within Jamaica’s constitutional framework which permits a minister to issue a detention order.
Lawyers representing the men, in a submission before Justice Morrison in July, had charged that the Government’s lawyers had failed to show whether or not the laws of Jamaica support the detention of the men for a protracted period without charge. They argued that the holding of individuals indefinitely under a state of public emergency, at the will of the prime minister and his Cabinet, is not upheld by the Jamaican Constitution.
According to the defence, an “emergency” as defined under the constitution is triggered when life is threatened, and cannot be triggered by an ordinary “situation”. They further argued, too, that Jamaica’s “Constitution only points to a period of public emergency, not a state of public emergency”.
The notice of appeal, the Observer understands, was filed on October 29 this year.