Justice Astaphan's Profound Judgment - Part I

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Rawlston Pompey

Monday, 10 September 2012 02:30

By Rawlston Pompey

This commentary, interspersed with metaphorism, primarily focuses upon aspects of an historic and profound Judgment recently delivered within the nation’s “…Halls of Justice.”

The contents, delivered by eminent jurist, Kittian-born His Lordship JUSTICE THOMAS W. R. ASTAPHAN, will be limited to his “…observations, findings and conclusions.” The Judgment, consequential to an appeal duly filed within the regulated stipulated time and inexplicably heard an inordinately two years later, was delivered in the matter of “…CONSTABLE CLIFFORD JACKSON (Claimant) and the Police Service Commission (PSC) (Defendant).

THE JUDGMENT
The Judgment appeared well-reasoned, thorough and comprehensive in content and showed how easily careers may be lost; …hopes dashed; … and dreams and aspirations shattered, due in part to decisions judicially declared “…unreasonable and irrational, void and of no effect” [Court] by untrained non-judicial arbitrators and a Constitutional body making “…corresponding decisions,” seemingly smarting under the guise of “…Organizational Disciplinary Control.”  The decisions by reason of a written intent of “…SENDING CLEAR MESSAGE” appeared “…perverse” and “…excessive” and had been  perceived, rightly or wrongly, to have been influenced by “…extraneous considerations” for alleged misconduct or “…gross insolence” by an offending “…member/litigant” within the national Law enforcement agency.

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DISCIPLINARY TRANSGRESSIONS
The Claimant, a ten (10) year veteran Law enforcement officer, had sought redress respecting his “…DISMISSAL” from the Police Service in 2007. He had been disciplined for allegedly committing two breaches of discipline- “…Discreditable Conduct and Insubordination.” The Claimant had opined that the Decisions were “…perverse” (wicked). In more refined judicial expressions, His Lordship JUSTICE THOMAS W. R. ASTAPHAN concluded and wrote with professional stateliness that they were “…unreasonable and irrational.” In metaphoric layman’s language, and perhaps that of the Claimant, “…Six of one and half a dozen of the other, it is the same thing-wicked.”

THE NOTORIOUS LETTERS
The notorious letters of “…Termination and Affirmation,” respectively states in part [Administration: Para.21] “…Having reviewed the evidence which was presented at the trial by the prosecution, and the reasons provided by the Trial officer for his Decision, this serves to officially inform you that the said Decision has been affirmed by me.” While affidavits may have revealed “…perjurious statements,”  contradictorily, the eminent Justice wrote [Para.17] “…The Tribunal does not give ‘ANY REASON AT ALL’ as to how and why it came to the decision to recommend the Claimant’s Dismissal from the Royal Police Force of Antigua and Barbuda; …It provided no reasons for the decision of guilt.” Consequent upon such contradictions, reasonable inferences may have been drawn that His Lordship was not so inclined to highlight such inaccuracy or that which appeared inconsistent with the truth. His Lordship may have smelled something.

SMELL OF INJUSTICE
Within the Judiciary, it is about the “…administration of justice.” That was what all Judges knew. In “…Quasi Tribunal proceedings,” the smell might be different. In the instant Judgment, it was obvious that what His Lordship JUSTICE THOMAS W. R. ASTAPHAN might have smelled was far removed from JUSTICE and might have been closer to the “…non-aromatic fumes” emitted from the Cubana cigar, even puffed from the “…DEVIL’S BRIDGE” by Member of Parliament Honourable ROBIN YEARWOOD. Closer still, it might have been that emitted from the exhaust pipes of the “…seemingly contentious” Wadadli power plant.

FISHY
Like the power plant’s contractual or costing fiasco, if the Honourable MOLWYN JOSEPH says he  “…smells fish,” then one may say without contradiction, “…It is fishy.” Cognizance of the principle on “…Self-incrimination” [Para 61: vii]; …Right of Silence and prevailing Constitutional Right of Innocence” [Constitution: 15: 2a], the Court, citing its rationale for such conclusions, His Lordship unambiguously states “…The finding of guilt on the Insubordination charge, on that evidence and in those circumstances, I find as a matter of Law to be unfair, UNREASONABLE and IRRATIONAL” [Para. 61: x].

CLEAR MESSAGE LETTER
Reasonable inferences may be drawn that other than the Claimant, the Appellate Body was targeting every personnel within the Police Service for dismissal. This was evident from its letter that states “…The Commission believes that the incident was an extremely serious incident and that a ‘…CLEAR MESSAGE NEEDS TO BE SENT TO THE MEMBERS OF THE FORCE AS TO THEIR CONDUCT AND BEHAVIOR’; …The seriousness of the offence left ‘NO OTHER CHOICE’, but for the Police Service Commission to AFFIRM the decision of the Dismissal by the Commissioner of Police” [Para 35]. This appeared to have contrasted the “…spirit and intent” of Section 14 (1) of the Disciplinary Code that unambiguously states “…RIGHT OF APPEAL-An accused person (member) against whom a DECISION is made either by the Commissioner of Police or a member of the Police Force to whom ‘AUTHORITY IS DELEGATED’ to hear the charge, may APPEAL against such Decision to the COMMISSION (PSC) within fifteen (15) days of the date on which such Decision is communicated to him.”



THE PROCEEDINGS
In the proceedings His Lordship addressed, inter alia, “…Delegated powers to a superior rank; …hearing of, and making determinations and recommendations for Dismissal; …procedures followed for Affirmations of Dismissal; …excessiveness; …unreasonableness and the …Inordinate delay for appellate hearing.” It might be repetitious, if not superfluous in revisiting some of the Courts findings and/or expressions, and therefore, the contents shall be limited to three “…Decisions” that appeared to have struck the Court as “…appalling,” thereby provoking expressions in judicial language, open-mindedness and bluntness, with declarations that the Decisions were “…UNREASONABLE and IRRATIONAL.”

COMPASSIONATE ARBITRATORS
Given the Claimant’s attributes, “…unblemished disciplinary and professional record,” all options considered, compassionate arbitrators probably might not have recommended and/or affirmed his Dismissal. However, he may not have been allowed to escape other punitive measures. This, however, would have been dependent upon compliance with procedural formalities and recognition of the principle that requires “…Justice to be “…MANIFESTLY APPEAR TO HAVE BEEN DONE.” The authorities seemingly in its anxieties to “…SEND CLEAR MESSAGES,” and seemingly smarting under the guise of maintaining organizational discipline, but in actuality reducing membership, had apparently”…goofed.”

MANIFESTATION OF JUSTICE
Down through the pages of history, the British Jurisprudence of which this nation’s Judicial System was derived had evolved into a unique Legal and Justice Systems. The eminent jurists in their practice and deliberations had developed some judicial expressions, none more profound as the legal principle that states “… Justice must not only be done, but must …MANIFESTLY APPEAR TO HAVE BEEN DONE.” The historic Judgment, without a shadow of doubt, reflects such “…MANIFESTATION.”

UNIVERSAL LANGUAGE
Such principle had become the “…universal language” in most jurisdictions in nations across the globe, where democratic principles were at work and where respect for “…Human Rights, dignity and worth; and those fundamental rights, freedoms and liberties protected under the Constitution and “…Natural Justice” were not only recognized and observed, but in principle and actuality were practiced. That principle had been constantly reflected in the Judicial Decisions and/or Judgments of most British Courts, particularly those of its Privy Council. This was the language taught to legal practitioners and this was the language most conscientious adjudicators and/or arbitrators understood. This was the language used by His Lordship in his deliberations, conclusions, determinations and ultimately, his delivery.

FROM WHENCE HE CAME
Despite its “…militaristic handling” of the “…RONALD WEBSTER ADVENTURISM,” fragmenting the Federation of St. Christopher/Nevis/Anguilla in 1969, Britain appeared not to have been all that “…BRUTISH” with its jurisprudence from whence His Lordship came. Thus, as it affects the “…ADMINISTRATION OF JUSTICE,” Britain had been known universally for a Justice system that was second to none. It was free and fair and void of political influences and/or interferences. His Lordship JUSTICE THOMAS W. R. ASTAPHAN had been such a scholar and came from such legal institutions with a clear knowledge and understanding of how that system functioned and “…supposed to function. The British trained jurist, even with limited adjudicating experiences had demonstrated that he was no “…Kangaroo Adjudicator.”



TRAVESTY OF JUSTICE
The proceedings were duly instituted, consequential of several “…Perverted Decisions,” deemed to be “…TRAVESTY OF JUSTICE,” allegedly perpetrated by Law enforcement officials and Disciplinary control authority. This was reportedly compounded by such authority, an Appellate Body, (for Constables/Corporals), exercising powers determined by the Court not to have resided with that Body. The Body addresses appeals by offending members in whose “…favor a Decision was not obtained.” This usually followed internal Tribunal Proceedings for breaches of discipline. Personnel of, and above the rank of Sergeant are under “…Disciplinary control” of that Body-the PSC [Constitution: 105]. The Appellate Body is the “…Public Service Board. Appearing before a “…quasi” internal Law enforcement Tribunal, the aggrieved Constable was represented by a member of the Police Service CONSTABLE RUPERT CADETTE. Seemingly writing appreciatively of his performance, His Lordship states “…Corporal Cadette mounted a VIGOROUS and wide ranging defense for the Claimant” [Para.13].

AFFIRMATION OF PERVERSE DECISIONS
The Police Service Commission (PSC) had apparently, whether by calculation or inadvertence, had “…Affirmed” the perverse “…Decision of Dismissal” through referrals by the Police administration before the Claimant’s Appeal was heard. Ironically, the PSC was the “…APPELLATE BODY” to review “…Unfavorable Decisions” delivered against offending and aggrieved personnel, either by the Commissioner of Police or officers so delegated to conduct Disciplinary hearings into alleged breaches of discipline. Seemingly procedural and/or administrative “…unfamiliarity” may have favoured the Claimant.

REASONABLENESS/EXCESSIVE
The Court was implored to view the vexatious and/or perverted courses of action by the PSC from the perspective of “…REASONABLENESS AND/OR EXCESSIVE” in the circumstances. The Judgment speaks to “…GRIEVOUS INSULTS,” said to have occurred in a “…Quasi Law enforcement Tribunal,” that necessitated “…legal remedies” by adjudicators schooled and versed in, and with such knowledge of Law; …comprehensive and interpretative skills; …understanding of adjudication; ...rules, procedures and processes, combined with practical experience and included familiarity with “…Practice Directions” and other authority laid down by Superior Courts.

TEARS FRUSTRATION AND MISERY
Notwithstanding Britain’s “…colonization exploits,” it may have left a workable “…Constitutional Judicial System” that people who may have been “…wrongly offended and/or victimized,” may duly have recourse. Frequently, however, many litigants appeared to have been left in a state of despondency. Some had been pondering over the seemingly deprave nature of some “…Judicial and/or QUASI Decisions” that had brought them to tears, frustration and misery. Not infrequently had litigants likened some decisions to those obtained in what had been described as “…Kangaroo Courts,” forcing many into an erroneous belief that the Judicial system was rife with corruptible adjudicators.

JUDICIAL JUDGMENT
Contrastingly, the recent profound “…Judicial Judgment” of His Lordship Justice in the case of the Claimant versus the Police Service Commission (PSC) Defendant,” showed the very opposite of such perceptions. Such Judgment, no doubt, had caused the citizenry to endearment to the little known adjudicator. The case for the Claimant was presented and argued with dexterity and obvious competency and persuasiveness by attorney-at-law SAMANTHA MARSHALL. The case was primarily argued on the grounds of “…Procedural fairness and natural justice” [Para 47]. Her arguments prevailed over those of Defence attorney Dr. David Dorsette, who had in many respects reportedly acquitted himself exceeding well. He was placed in the invidious position in “…defending the indefensible” [Senator Paul ‘Chet’ Greene]. On judicial principle, the Honourable Attorney General Justin L Simon, may have honorably and quietly conceded.

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COURT’S CONCLUSION
Judicially, concisely, yet pellucid, the eminent Justice unmistakably wrote in the Judgment [ANUHCV 2010/0487: Para 127] “…The Decision of the HUNTE TRIBUNAL to recommend the Claimant’s Dismissal from the Royal Police Force of Antigua and Barbuda is ‘BAD IN LAW; …null; …void and of no effect’ on the grounds that (a) …it is ultra vires the delegated powers of the Tribunal; (b) …It was PROCEDURALLY UNFAIR, in that it is ‘…UNREASONABLE AND IRRATIONAL,’ for the reasons stated above; and (c) …It lacked the required and necessary reasons. The convictions (finding of guilt) on the charges of Discreditable Conduct and Insubordination, are bad in law for the reasons stated herebefore.” Seemingly no application was made for the documentation relating to the “…perverted Disciplinary Hearing, Affirmations and Dismissal Letter” to be removed from the Claimant’s “…Personnel File.”

UNREASONABLENESS/IRRATIONALITY
According to His Lordship’s ruling it was “…unreasonable and irrational” in the decision-making process, respecting the disciplinary determinations. The Court asked “…Is a Police Officer who is cautioned by an investigator who is investigating a disciplinary allegation against him, obliged to answer the investigator?” To the “…non-judicial” adjudicator, unfamiliar with certain established principles and maxims, the answer might be a resounding “…YES.” To aggrieved personnel, this could also mean “…TRAVESTY or MISCARRIAGE OF JUSTICE.”

JUSTICE ASTAPHAN’S DICTA
Writing further with “…judicial candor” [Para.127: iii], His Lordship states “…The Police Service Commission’s (PSC) decision to affirm the ‘Decision of the Dismissal’ by the Commissioner of Police’ is BAD IN LAW; …null; …void and of no effect on the grounds that (a) …It was TAINTED by the Commissioner’s ‘Letter of Dismissal’ to the Claimant dated 7 November, 2007; (b) …The Commission took into account ‘…evidence submitted to it by its investigators’ when they ought not to have done so in arriving at their decision; (c) …The explanation given for their Decision is INSUFFICIENT so as to ensure that the Claimant received ‘…PROCEDURAL FAIRNESS’ and in all the circumstances their Decision was ‘…UNREASONABLE and IRRATIONAL;’ and (d) …The Commission FAILED to give any, or any sufficient reasons for its Decision to affirm the Commissioner of Police’s affirmation of the HUNTE TRIBUNAL convictions and sentences.” The Court appeared to have stopped short of describing the courses of action initiated against the Claimant as “…brutally heartless.”

COMEDY OF ERRORS
The Police Service Commission (PSC), singularly, the Defendant, seemingly for acting outside its jurisdiction, appeared to have come under the notice of His Lordship’s “…Judicial pen.” The seemingly shrewd and meticulous Justice, groping for reasons for the apparent inexplicable “ …procedural and/or administrative glitches.” Seemingly not impressed or convinced, His Lordship wrote “…The decision to affirm the Commissioner of Police Affirmation of Dismissal in the Hunte Tribunal is BAD IN LAW, void and of no effect.” This suggested a “…COMEDY OF ERRORS.” The latter comment was not attributable to the distinguished adjudicator who had seemingly exhibited exceptional judicial reasoning, good professional wisdom and sound judgment.

UNSAVORY REACTIONS
The Claimant was clearly not without behavioral blemish as observed by the Court. There was no doubt that when the original allegation of “…Discreditable Conduct” was“…politely” put to him by the investigator, he had reportedly displayed “…unsavory behavior.” Although this was not under judicial consideration for determination, it appeared not to have escaped the attention of His Lordship. ?  Very nicely put, however, His Lordship states “…His language was certainly INELEGANT” [Para. 61(viii].While his conduct had seemingly affected “…organizational discipline” to the Claimant, it was about “…TRAVESTY.” Looked at from outside a “…disciplined body,” seemingly compounded by pent up feelings of frustration; …youthful exuberance and …unrestrained arrogance, he had exhibited characteristics suggestive of a “…rude boy mentality.”

RAUCUOUS RESPONSE
The Claimant was an intelligent, deeply committed, courageous, efficient and effective officer, overshadowed only by his apparent burst of anger. Very crudely, if not grossly vile and contemptuous, he had exposed his character and himself to disciplinary actions. He allegedly responded raucously by WORD saying “…I can’t talk to you now; …Talk to me when me ah work and do wah you have to do; …Me nar talk to you.” If such responses were not offensively Insubordination, then what is?”

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SPIRIT OF COMPASSION/CONSIDERATION
The Claimant had clearly demonstrated contempt for authority and that of the Disciplinary Code. Just as “…Mount OBAMA and MACNEICE Mountain” cannot meet, equally so, “…two wrongs can never make a right.” Even in the absence of “…mitigating circumstances, and for all intents and purposes, Law enforcement authority and a Statutory Body appeared to have “…recommended and/or affirmed” a Decision to Dismiss, contrary to the “…spirit of compassion and/or due considerations for others.” Adding insult to injury, these may also have been compounded by glaring “…Legal, Procedural and Administrative blunders,” as had been “…judicially determined” by His Lordship Justice Thomas W.R. Astaphan in his judgment.

JUSTICE AND FAIR PLAY
Accepting the notion of “…Justice and fair-play,” His Lordship had restored, to some extent, the people’s faith, and particularly Law enforcement fraternity, in the Judicial system and its adjudicators. For in seemingly his “…maiden jurisdictional Judgment (Antigua and Barbuda) in a matter affecting Law enforcement, JUSTICE ASTAPHAN, if for no other litigants, may have given an aggrieved and despondent Claimant, Constable Clifford Jackson justifiable reasons to be elated over his vindication and providing hope to others, seen through the  “…logical and well-reasoned” Judicial Judgment of August 23, 2012. Many had hailed him the new “…Messiah” in the administration of Justice.

THE QUALITY OF MERCY
Consequently, like the character “…Portia” in the Shakespearean play “…Merchant of Venice,” the Claimant may say with some degree of humility and satisfaction, “…The quality of mercy is not strained; …It droppeth as the gentle rain from heaven; …Upon the place beneath; …It blesseth him that gives and him that takes.” Though the authorities may not have taken “…a pound of flesh” from the body of Constable Clifford Jackson, they had seemingly robbed him of his dignity; …wounded his ego; …induced financial hardship and had, for five years “…deprived him of a professional career and livelihood” by “…Bizarre Decisions …almost inducing a state of insanity.” The Court, through His Lordship, THOMAS W. R. ASTAPHAN, in his professional wisdom and Judgment [Para 2], apart from explicably frowning upon the apparent “…perverted decisions,” had remedied what evidently had been a “…Travesty of Justice.” Such perversion, undoubtedly, may have, left him, as it may have left many personnel across the region, as statically shown in the Judgment for this jurisdiction, in a “…sorry and/or unimaginable state of great financial hardship, pain, misery, despondency and hopelessness.”

BEYOND REASONABLE DOUBT
Focusing on his fundamental roles as adjudicator and administrator of justice, His Lordship JUSTICE THOMAS W. R. ASTAPHAN knew that outside of criminal proceedings that require cases to be proved “…beyond reasonable doubt” and that if there was a “…reasonable doubt,” it shall be resolved in favor of an accused person. He also knew that in the “…absence of Jury trial,” he was the “…sole judge of both “FACTS and LAW. He knew very well that in the absence of a Jury who are “…sole judges of Facts,” he shall give “…proper directions” to himself to the extent of “…feeling sure and/or satisfied with the evidence” in making determinations of “…Innocence or Guilt.” Such, however, was not under judicial considerations. It was about “…procedural issues and perverse decisions.” Thus, determinations were to be made on the principle “…balance of probability.” The issues raised with advanced arguments were “…Procedural fairness and Excessive” seemingly viewed by the Court from the perspective of Law. He had found several flaws attributed to administrators and Service Commissioners seemingly coming from practices out of “…Australian Kangaroo Courts.”

HOSTILE ENVIRONMENT
Like the Claimant, there was no doubt that the Judicial System had been operating in a somewhat “…hostile environment,” yet the Judgment had provoked feelings and beliefs among Law enforcement personnel, and by extension, the populace that “…Travesty of Justice” were judicially correctable. Notwithstanding that it was his Judicial function in remedying the apparent “…perverted decisions, His Lordship may have travelled where most angels had feared. He had demonstrated clearly the principle of “…MANIFESTATION.”

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IMPLICATIONS
The Judgment, therefore, may have implications for Law enforcement officials and/or administrators; untrained and inexperienced “…delegated Trial officers” and “…ill or uninformed” Police Service Commissioners in the OECS, which membership, regretfully, appeared in the eyes of aggrieved personnel as merely “…numerical; …expedient; …gratuitous and/or opportunistic.” In their humble and respectful qualified submissions, such conclusions meant “…TRAVESTY.” The Online Thesaurus defines the concept as “…speaks to “…An act of the legal system that is an INSULT to the System of Justice.” His Lordship’s Judgment sought to remove that “…INSULT.”

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