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New chief justice solid and sound
Ken Chaplin
Tuesday, June 26, 2007
Historically - dating back to colonial times - many judges, particularly chief justices, tended to show a lack of leniency to the poor and often turned the scale of justice in favour of government.
One judge who has consistently balanced the scale of justice is Justice Zaila McCalla throughout her tenure as resident magistrate, Supreme Court and Appeal Court judge. So it was not surprising to me when she was recently elevated to chief justice. She assumes duties tomorrow.
I have a great deal of respect for Mrs McCalla because of the even-handed way she handled the Clifton Bernard case. It may be recalled that this column won the Press Association of Jamaica's National Journalism Award for Outstanding Public Service in 2002 for a series of columns on the controversial case.
It is worthwhile recalling the case which was one of the most important in the annals of jurisprudence in modern Jamaica. It was really a case between an ordinary citizen and the might of the state. In 1990, Bernard was among a group of citizens waiting their turn in an orderly manner to use a public telephone. It was Bernard's turn to use the telephone when up came a policeman, Paul Morgan, demanding the telephone to make a long-distance call. Bernard held his ground, Morgan pushed him and during an argument drew his police service revolver and shot Bernard. Bernard was taken to hospital and tied to a bed under police guard. He was charged for assaulting a police officer, among other charges, all of which were later dropped. Morgan was never charged and apparently fearing the consequence, slipped out of the country. No attempt was made by the state to have him extradited to face prosecution. As often happened then when policemen were involved in crime, Morgan was allowed to run away from justice.
Bernard sued the state, and in the Supreme Court, Justice McCalla handed down judgement in favour of Bernard. He was awarded $2.5 million with costs and interest in damages against the state for assault, malicious prosecution and false imprisonment in 2001. This column noted in the Observer of October 12, 2004 that Justice McCalla showed remarkable courage in the name of justice.
The state appealed, and the Court of Appeal handed down judgement for the government, ruling that the policeman acted outside the scope of his duties and therefore the state was not liable. How the Appeal Court reached that judgement was hard to understand, and this column took issue with the judgement. In spite of its decision, the Appeal Court recommended an ex-gratia payment of $2.5 million in which case the matter of costs and interest would not arise. Yet the Appeal Court made a rather important decision: that the law be changed to make the state liable in the future. However, the essential point was that the principle of vicarious liability was well established in law in Jamaica many years ago.
Bernard appealed against the Court of Appeal's judgement to the Privy Council in England. A critical element in the appeal was whether the policeman acted within the scope of his employment when he fired his service revolver. In its ruling, the Privy Council said Bernard made his case of the state's vicarious liability and the state would have to add the costs and interest that were awarded by Justice McCalla in the Supreme Court.
In another far-reaching case recently, Justice McCalla was a member of the three-member panel of Appeal Court judges which ruled unlawful the minister of industry, commerce and technology Phillip Paulwell's direction to the Office of Utilities Regulation in a matter concerning interconnection and competition under a section of the Telecommunications Act.
Many of Justice McCalla's colleagues regard her as a solid, sound judge. Congratulations to her not only as Jamaica's first woman chief justice, but also as a legal luminary of sterling quality.
Ken Chaplin
Tuesday, June 26, 2007
Historically - dating back to colonial times - many judges, particularly chief justices, tended to show a lack of leniency to the poor and often turned the scale of justice in favour of government.
One judge who has consistently balanced the scale of justice is Justice Zaila McCalla throughout her tenure as resident magistrate, Supreme Court and Appeal Court judge. So it was not surprising to me when she was recently elevated to chief justice. She assumes duties tomorrow.
I have a great deal of respect for Mrs McCalla because of the even-handed way she handled the Clifton Bernard case. It may be recalled that this column won the Press Association of Jamaica's National Journalism Award for Outstanding Public Service in 2002 for a series of columns on the controversial case.
It is worthwhile recalling the case which was one of the most important in the annals of jurisprudence in modern Jamaica. It was really a case between an ordinary citizen and the might of the state. In 1990, Bernard was among a group of citizens waiting their turn in an orderly manner to use a public telephone. It was Bernard's turn to use the telephone when up came a policeman, Paul Morgan, demanding the telephone to make a long-distance call. Bernard held his ground, Morgan pushed him and during an argument drew his police service revolver and shot Bernard. Bernard was taken to hospital and tied to a bed under police guard. He was charged for assaulting a police officer, among other charges, all of which were later dropped. Morgan was never charged and apparently fearing the consequence, slipped out of the country. No attempt was made by the state to have him extradited to face prosecution. As often happened then when policemen were involved in crime, Morgan was allowed to run away from justice.
Bernard sued the state, and in the Supreme Court, Justice McCalla handed down judgement in favour of Bernard. He was awarded $2.5 million with costs and interest in damages against the state for assault, malicious prosecution and false imprisonment in 2001. This column noted in the Observer of October 12, 2004 that Justice McCalla showed remarkable courage in the name of justice.
The state appealed, and the Court of Appeal handed down judgement for the government, ruling that the policeman acted outside the scope of his duties and therefore the state was not liable. How the Appeal Court reached that judgement was hard to understand, and this column took issue with the judgement. In spite of its decision, the Appeal Court recommended an ex-gratia payment of $2.5 million in which case the matter of costs and interest would not arise. Yet the Appeal Court made a rather important decision: that the law be changed to make the state liable in the future. However, the essential point was that the principle of vicarious liability was well established in law in Jamaica many years ago.
Bernard appealed against the Court of Appeal's judgement to the Privy Council in England. A critical element in the appeal was whether the policeman acted within the scope of his employment when he fired his service revolver. In its ruling, the Privy Council said Bernard made his case of the state's vicarious liability and the state would have to add the costs and interest that were awarded by Justice McCalla in the Supreme Court.
In another far-reaching case recently, Justice McCalla was a member of the three-member panel of Appeal Court judges which ruled unlawful the minister of industry, commerce and technology Phillip Paulwell's direction to the Office of Utilities Regulation in a matter concerning interconnection and competition under a section of the Telecommunications Act.
Many of Justice McCalla's colleagues regard her as a solid, sound judge. Congratulations to her not only as Jamaica's first woman chief justice, but also as a legal luminary of sterling quality.
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