Through the Eyes of Justice Astaphan

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Rawlston Pompey

Monday, 17 September 2012 02:30

By Rawlston Pompey

Seemingly using his “…intuitive skill,” His Lordship THOMAS W. R. ASTAPHAN appeared to have sensed a “…storm brewing” within the national Police Service.

Thus, he may have been moved with “…circumspection and/or apprehension” over the “…authoritative environment” existed within the national Law enforcement agency. His Lordship knew that even in the best regulated institutions-religious or secular, as it is in the family, there would be friction among its members.” Therefore, looking into the organization through the case, “…Clifford Jackson versus Police Service Commission (PSC),” His Lordship may have drawn reasonable inferences that “…ALL WAS NOT WELL” within the Law enforcement agency. When the “…Decision” to dismiss Constable CLIFFORD JACKSON was affirmed by both the Law enforcement authority and Police Service Commission (PSC), His Lordship had judicially declared it “…offensive to the conscience and justice; …null, void and of no effect.”

JUDICIAL EXPERIENCE
Hence, seemingly using experience acquired through his legal practice and the Judiciary, His Lordship knew that each organization had its own culture and values, precepts and regulations. He knew that the environment invariably breathes contempt, hostility and/or animosity whenever there were dissenting voices; …he knew that there had been evidence of “…oppression and/or victimization” by those who wielded power. He also knew from adjudication that such was exercised “…irrationally and excessively” as declared in the recent Judgment “…CLIFFORD JACKSON (Claimant) and the Police Service Commission (Defendant).

RULE OF LAW
Seemingly with some degree of disquiet, His Lordship stated that “…The Body (Police Service) is also hierarchical and non-democratic; …This hierarchical undemocratic regime is reinforced by Statute and Regulations.” His Lordship was cognizance of other possible “…connotations, interpretations and/or misinterpretations;” hence, he stated unequivocally “…Absent these Disciplined Forces from a democratic society, then anarchy and chaos reigns.” Clearly, in the absence of the “…RULE OF LAW,” such assertions were as inevitable as they were unchallengeable and irrefutable.

DISCIPLINARY CONTROL
In fact in the absence of “…Social Control” in the wider society, it most certainly will be the “…Survival of the Fittest.” Within Law enforcement agencies, the lack of “…Disciplinary Control” may be seen as having consequences of some form or the other-some frightening and sorrowful. History may reveal “…irrefutable evidence” as to what dourly, but unfortunately transpired in the Offices of two Commissioners of Police. Firstly in the “…Spice Isle of GRENADA and ANGUILLA,” frustration and/or humiliation had seemingly led to the inevitable. Therefore, history may not be repeated and seemingly, His Lordship appeared acutely mindful of the capabilities of those who may have been “…treated unfairly and/or oppressively pushed to the edge.”  Thus, he may have sought to bring suggestions to Law enforcement administrators, that they may consider new approaches and paradigm in their administration.

BEHAVIORAL INDISCRETIONS
He had apparently detected evidence of collusion among Heads of Department, intending to run the agency with rigidity. From the content and objective of the Police Service Commission (PSC) “…Clear Message” letter, it was evident that the supposedly “…Good personnel” appeared to have been “…tainted” by the “…Bad; …Ugly; and the …Indifferent.” Thus, innocent or not, all seemed to have fallen under the “…radar” of the Appellate Body, the “…PSC” for “…behavioral indiscretions” brought before it.  It was obvious that for breaches of discipline “…Decisions” may have been given against them as opposed to favoring them.” It was a foregone conclusion, of the horror of being summarily “…DISMISSED” from the Police Service, on recommendations of Trial officers. Such, no doubt, was horrible and “…bad for morale.” To the Police Service Commission, it was “…good for discipline.”

WELL DISCIPLINED
Except for a “…depraved few” among the membership, the personnel were generally well-disciplined. Those so described had failed to exhibit conduct consistent with good discipline” as well as conforming to the agency’s core values. Thus, these personnel may have been likened to the “…Wadadli Power plant,” five of which reports suggested were not only said to be overly costly, but also “…Old and New.” They had failed to meet operational and/or generation expectations, so too were the few personnel who had fallen woefully short of public expectations. They had brought the agency into disrepute. In spite of their transgressions, the majority of the personnel, even those with academic achievements had performed their duties commendably and appreciably.



ACADEMIC HORRORS
Among those with academic qualifications were “…Forensic Scientists; …Criminologists and Attorneys-at-law. Others had been qualified in “…Public Administration and Accounting.” They had been reportedly experiencing administrative horrors. Thus, many academics and non-academics personnel appeared to have been driven into a state of “…despondency and hopelessness.” Then there was the unfortunate situation of a twenty year-veteran investigator and “…Forensic Scientist CORPORAL MICHAEL MURRELL seemingly speaks to a classic case of “…deception and/or victimization.”

REASONABLE EXPECTATIONS
He, like several others- some reportedly acting in positions for over five years, had seen their juniors un-meritoriously made significant strides upward in the rank structure. The authorities appeared to have completely overlooked the principle of “…REASONABLE EXPECTATIONS,” thereby forcing many to seek judicial review of a debilitating and/or discriminatory practice. Few of the academically qualified had used their commitment and devotion to duty as the motivating factors that had led them into displaying unstinting loyalty, obedience and compliance with the Disciplinary Code. Still there were others evidently lacking knowledge and experience, being expediently propelled to positions far beyond their capabilities and/or professional competencies.

IN THE PIPELINE
When social commentator Trevor King, ‘King Zacari’ sang “…All is not well,” he had chronicled a number of “…social, economic and political ills” that had been adversely affecting the well-being of the nation and its people. More recently, when Police social commentator “…Instructor” sang “…IN THE PIPELINE,” he too had chronicled a number of administrative issues affecting the welfare of the personnel. He despairingly cried “…Somebody help me; …I am going crazy; …Because everything is in the pipeline.” In fact, the Instructor appeared not to have been merely sentimental, but had echoed the “…frustration and hopelessness” of his colleagues.

LOW MORALE
When the Tribunal recommended Constable CLIFFORD JACKSON’S dismissal from the Police Service on the less serious disciplinary offence of “…Insubordination,” such was seen by the rank and file as “…harsh and frighteningly heartless.” This appeared to have impacted adversely on the personnel. Morale was said to have ebbed low; …spirit dampened and hopes, dreams and aspirations dashed. Many of whom appeared to have been overlooked for “…upward mobility.” Likened to a situation that had developed within the Royal Canadian Mounted Police (RCMP) that saw some of its “…Ace Fraud Investigators” [Lindquist et al] opted for early retirement, several highly qualified personnel had done the same. They went to where the “…grass were greener.” They had followed others who had opted so to do in earlier times. Notwithstanding their misgivings and feelings of discontent, most of the personnel had exhibited “…exemplary behavior and had demonstrated a good sense of responsibility, judgment and purpose.

PARLIAMENTARY ANTICIPATION
Parliament anticipated that members of a “…Disciplined Force,” specifically Law enforcement, were very likely to conduct themselves in a manner that may have negative impact on “…Organizational DISCIPLINE.” Thus, likened to the wider society with laws enacted for “…Social control,” it had empowered the Minister with responsibility for the Police to make “…Disciplinary Regulations” for application as situations and/or circumstances dictate. Hence, these regulations were specifically made for the maintenance of discipline within the agency. These, however, “…SHALL NOT” be arbitrarily implemented or enforced without “…justifiable reasons and/or rationality” as the instant Judgment seemed to have indicated.

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AN UNDERSTANDING
For an understanding of the particular disciplinary offence INSUBORDINATION,” all personnel are subject to the Disciplinary Code. Conduct of Law enforcement personnel within this jurisdiction are referenced at Part   II of the Police Act Chapter 330. Section 6 (b) defines that which may constitute “…Insubordinate Conduct: -“…That is to say, if a member of the Force is (I) …Insubordinate by WORD; …ACT or …DEMEANOR.” Thus, one may express himself rudely; or …commit some indiscipline act; or simply exhibit some demeaning behaviour- “…sucking teeth; …shrugging shoulders or simply “…WALKING AWAY” when being officially addressed by a superior officer as was the allegation in the “…CLIFFORD JACKSON” case.

SCENARIO
A simple scenario; A student being formally addressed by an educator on matters relating to education-…mode of dress; …punctuality or …school discipline and “…student walking away” from educator. Such behavior must surely be deemed “…gross insolence.” Thus, Principals/educators in the nation’s educational institutions shall determine what disciplinary measure/s may be taken in maintaining “…disciplinary control” of, not just the offender, but also the entire student body. The educators, therefore, shall unhesitatingly, “…ASSERT” their authority, if they were to be seen as (a) …authoritative; (b) …preventing repetitive insolent behavior; (c)…maintaining their positions and schools. Consequently, Principals were reasonably expected to initiate some form of “…corrective discipline.” The Police Service with similar authoritative influence was no exception. Such had always been the response for “…disciplinary reinforcement.” Hence, if “…school bullying” and hooliganism, crime and violence in the wider society were to be controlled. If it were not so, there would be no need for penitentiaries, only cemeteries.

WIMPS
From experience, save and except “…WIMPS,” no educator, religious leader, senior Parliamentarian, the family circle or even in”…gangsterism,” would such behavioral responses be acceptable or tolerated, let alone an officer of superior rank. The investigator was certainly not a “…WIMP.” Before a properly constituted Tribunal, such would have been deemed “…contemptuous.” It may beg the question “…Where must demarcation lines drawn between acceptable and unacceptable discipline?” The Court was mindful that there shall be disciplinary control; however, His Lordship had posited that “…Laws, Regulations and rules must be applied and enforced ‘REASONABLY; …RATIONALLY; and …FAIRLY’ both “…PROCEDURALLY and SUBSTANTIALLY.” [Para.8]. One might even add, “…consistently” as circumstances dictate.

ENABLING ENVIRONMENT
The Court appeared to have been indirectly encouraging such participation, along with finding ways in inspiring and/or motivating personnel to see themselves as the “…primary stakeholders” with a vested interest in promoting its values, image and/or reputation. Modern management and leadership concepts, have so urged. These concepts have been known to worked well in harmonizing management/employee relations; …curtailing professional indiscretions among its members; … boosting morale; …enhancing performance and greater productivity. These had been known to have materialized pragmatically in other organizations, but to the extent that they were achievable only in “…an enabling environment.” A hostile environment breathes hostility.

INTELLECTUAL TACTFULNESS
Undoubtedly, His Lordship THOMAS W. R. ASTAPHAN wanted to help everyone within the agency-its “…administrators, Superiors and Subordinates” alike. Seemingly with “…intellectual tactfulness” and judicial prudence, preceding the “…facts of the case,” he wrote in earnest [Para iv], “…The Royal Police Force of Antigua and Barbuda is a Disciplined Body; …Members of which are required to obey established Rules and Codes of Conduct.” Factually, such obedience, at all material times, had been the case for all its members. His Lordship knew too well that some oppressive behavior was likely. Responding to the “…perverted decisions” against CONSTABLE CLIFFORD JACKSON, He stated “…It was offensive to the conscience and justice.”



MODERN MANAGEMENT CONCEPTS
Seemingly recognizing the need for “…Organizational Discipline,” His Lordship prudently states [Para v], “…Likewise remove this ‘disciplinary regime’ from the Police Force and the institution crumble.” Thinking outside the “…Judicial Box,” reasonable inferences may have been drawn that the Court may have been suggesting that in a modern day society, with its “…hierarchical structure and non-democratic culture,” Law enforcement officials and/or administrators might wish to embark upon “…organizational change,” thereby creating a more “…personnel and relationship friendly environment.” The introductory paragraphs of the Judgment seemed to suggest “…revolutionary changes” for effective disciplinary control; …OBEDIENCE; …mutual respect and cooperation among Superior and Subordinate ranks.

MANAGEMENT FUNCTIONS
These were the functions of management and were achievable only by those who understood the primary principles of management and its dynamism. Such function was not for “…squared pegs expediently inserted into round holes.” These were achievable through a “…democratic and participative” style of leadership by those with the requisite competencies and skills. From such perspective, such was likely to help significantly in the reduction of “…inappropriate behaviors among personnel. He was not the judge of these. He was merely thinking outside the “…judicial box.” Thus, it was a means of encouraging “…attitudinal change” at all levels, thereby seeking to induce mutual respect for authority, not only by those subordinate to such authority, but also by those asserting such authority. A late Deputy Commissioner of Police, Roy Fitzgerald Baptiste had always posited “…Respect flows up, down, cross-ways and side-ways.” His Lordship THOMAS W. R. ASTAPHAN appeared to have seen orders flowing downward and respect flowing upward.“

SOCIAL CONTROL
Experience has shown that where there was no mechanisms for “…SOCIAL CONTROL,” civil societies had descended into chaos and confusion. Thus, those societies had become ungovernable and dangerous. The same may be said of organizations such as Law enforcement and/or institutions such as the family/school. Hence, operating without effective “…Disciplinary Controls” for its members, the same may be obtained. Conversely, in any attempt at maintaining or reinforcing discipline, no member shall be “…selectively victimized.” Hence, whether for reasons which may be interpreted as “…vexatious and/or frivolous or that which may provoke antagonism, frustration and/or humiliation, none may be singled out for “…special treatment” and none may be singled out for “…harsh punishment.”

CONCERN FOR INJUSTICE
His Lordship had sought to identify what may have been contributory factors to indiscipline within “…Disciplined Forces.”Justices knowledge were limited only to that which was at Bar. The Courts in their judicial considerations shall detach themselves from environmental and/or extraneous matters. His Lordship had prudently pointed these out in the Judgment “…Clifford Jackson versus Police Service    Commission (PSC). Judges came from the environment and while judicial determinations SHALL be made only from the evidence presented to the Courts, they were very much aware of what was happening in the wider society. Thus, they understood victimization, equally as much as they understood vindictiveness and “…INJUSTICE.” The latter was primarily their concern; thus, it was all about the administration of justice for all litigants, irrespective of societal status or professional discipline.

CAUSES AND EFFECTS
Frequently, however, people were deliberately victimized by administrators/managers/supervisors who were inclined to react to “…compulsion” of enforcing rules and regulations for minor disciplinary breaches. Worst yet, most appeared to have been more concerned only about “…EFFECTS,” while overlooking the critical factor of “…CAUSATIONS.” More often than not, it was the latter that had been the “…cause” of their throbbing headaches and frustration in others. But should the rod be spared and an offender spoilt?

MEDICINAL SIDE EFFECTS
Invariably, most managers appeared to have looked at “…medicinal side effects” in patients, as opposed to “…cures to their ailments.” In the context of how they may have approached situations that had potential for developing into unsolvable problems, most had lacked the requisite skill-set for conflict resolutions. Lessons may have been learnt from the recent “…Emergency Medical Service personnel fiasco.” This was a situation that had seemingly resulted in the apparent embarrassing administrative bungling and “…hasty suspensions” of Emergency personnel. They were seemingly penalized even before the facts were known. Moreover, they were considered “…GUILTY” before investigations were conducted and/or completed, when evidence clearly showed that a “…medical practitioner” may have been culpable through “…gross negligence” for the death of a patient,” reportedly occurring under his “…private care.” Frequently, the “…INNOCENT” was made or found guilty for the “…CULPRIT.”

THE INDEFENSIBLE
Focusing upon the matters under judicial consideration, His Lordship JUSTICE THOMAS W.R. ASTAPHAN, appeared to have been of a strongly held judicial view” that the Police Service Commission (PSC) had exercised powers not residing with its members as a “…collective body” or “…individually,” and therefore, declared the perverted decisions “…Bad in Law, void and of no effect.” It was evident that the Defence attorney Dr. David Dorsette was placed in an invidious position in “…defending the indefensible” [Senator Paul ‘Chet Greene]. Conversely, the Claimant’s attorney Samantha Marshall had the impregnable position. Both attorneys had seemingly acquitted themselves exceeding well, with the latter’s arguments appearing to have been presented with more “… cogency and persuasiveness,” thereby resulting in the successful Judgment. Such was seen “…Through the eyes of Justice Astaphan.”

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CONCLUSION
The distinguished Justice may have concluded, rightly or wrongly, that the “…ink” that flowed from the “…mighty pens” of the Trial Officer; …Law enforcement administrative hierarchy and the Police Service Commission (PSC), may have flowed with such rapidity and in such torrents and intensity, as to have inescapably swept Constable Clifford Jackson, firstly into a“…state of hopelessness,” then into a “…sea of despair.” Notwithstanding his contributory difficulties, for the “…Quality of Mercy” to be constantly “…Droppeth as the gentle rain from heaven,” he may wish to reflect quietly upon his own attitude and that which bordered stupidity; …refining his expressions and “…Speak unto others as he would have them speak unto him.”

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Justice Astaphan's Profound Judgment - Part I

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