11 January 2004

Empire of Fear

Common Sense
John Maxwell

ONE does not have to be Scaramouche to have a sense that the world is mad - most of us have known for quite a long time that we are governed by lunatics in both the public and the private spheres.

How else can we explain the IMF and the World Bank telling Jamaica that its economic direction is unsustainable, when we have been the most diligent of their students for more than 20 years?

How else to explain that Royal Dutch/Shell, one of the world's largest and most important entities, has confessed that one-fifth of its golden eggs did not exist - that one-fifth of the assets it claimed to have in oil reserves were either imaginary or otherwise non-existent?

How else can we explain the American initiative to democratise Haiti, when democracy at home is in serious need of repair and resuscitation?

How do you explain that in the latest capitalist scandal, this time in Italy, the head of the country's largest food company and a host of its transnational subsidiaries, turns out to be a telephone operator?
The news that the empires presided over by Mr Patterson and Mr Seaga are both bankrupt should come as no surprise.

And it should be no surprise that Mr Patterson's government is taking steps to make it as difficult as possible for the rest of us to mount any kind of challenge to him or to any other of the powers that be - or that imagine themselves to be, pace Shell!

'The Blind leading the Deaf'

A few months ago, many of us were slightly bemused to learn from President George W Bush himself that he did not read newspapers or listen to TV news. His news, he vouchsafed, was filtered, delivered word of mouth by his closest and most trusted advisers. 'That explains it!' some of us thought, prematurely.

It now turns out, according to the former Treasury secretary, Paul O'Neill, that Mr Bush is even less connected to reality than we thought. According to O'Neill, a former CEO of ALCOA, even in cabinet meetings, where the fate of the world is decided each week, the president was "so disengaged" that he was "like a blind man in a room of deaf people."

According to Mr O'Neill, the administration's decision-making process was so flawed, that often, top officials had no real sense of what the president wanted them to do, forcing them to act on "little more than hunches about what the president might think".

Reacting to O'Neill's criticism, Mr Bush's mouthpiece, Scott McClellan said on Friday, "I think it's well known the way the president approaches governing and setting priorities. The president is someone that leads and acts decisively on our biggest priorities and that is exactly what he'll continue to do."

The problem is that Mr Bush's priorities soon turn out to be our priorities and the priorities of billions of people round the world. For instance, we have all been forced to bow down to the president's ruling, which abrogates the Geneva Convention on the treatment of prisoners of war. We say nothing to challenge the vigilante behaviour of the Government of the United States - now holding more than 600 people from more than 40 countries under what one of the most eminent jurists in the world calls, conditions "of utter lawlessness."

Lord Steyn, the third highest in Britain's legal hierarchy, is a judge whose opinions are respected round the world. Steyn said in November he hoped the British Government would denounce "and make plain publicly and unambiguously our condemnation of the utter lawlessness at Guantanamo Bay". In a memorial lecture to law students at the Inns of Court in November, Lord Steyn warned Americans that the denial of justice to foreigners would lead to the gradual erosion of fundamental civil rights of US citizens.

Steyn described the Guantanamo Bay detentions as a "monstrous failure of justice" leading to "Kangaroo Courts - a pre-ordained arbitrary rush to judgment by an irregular tribunal which makes a mockery of justice".

"The purpose of holding the prisoners at Guantanamo Bay was, and is, to put them beyond the rule of law, beyond the protection of any courts and at the mercy of victors".

Lord Steyn also chided judges who he said, were often too deferential to the executive, even in peacetime. It was "a monstrous failure of justice" that, so far, the US courts had decided they could not even consider credible medical evidence that a detainee had been or was being tortured. Prisoners had been left without any rights. Trials would be held in secret, with none of the basic guarantees for a fair trial.

The jurisdiction of the US courts was excluded. The military controlled everything, subject to decisions of the president even on guilt or innocence in individual cases, as well as sentences. President Bush had already described the prisoners as "killers".

"The question is whether the quality of justice envisaged for the prisoners at Guantanamo Bay complies with the minimum international standards for the conduct of fair trials," Lord Steyn continued. "The answer can be given quite shortly. It is a resounding 'NO'."

The object of Lord Steyn's contempt is primarily the American Attorney general, author of the PATRIOT Act, and a man of such refined sensibility that he needs to put clothes on statues. It is he, and the lawyers he leads who are now the exemplars of the world and Jamaica, as we rush to enact into law, an anti-terrorism Act to comply with the paranoia of the US authorities.

'If it ain't Broke. . .'

We Jamaicans have been here before. During the First and Second World Wars, the British passed laws which restricted civil rights, most importantly, freedom of expression, in the cause of winning the war. The Germans did the same. One side had to lose. The side that lost was that one most efficient in preventing freedom of expression.

The Defense of the Realm Act in the second World War got a few Jamaicans into trouble. George Scotter, an Englishman who was a sub-editor at the Gleaner was one. Others included PNP stalwarts such as the Four H's, Samuel Marquis and, of course, Alexander Bustamante, or Alexander Clarke as he then was. Later, the laws of sedition caught up with one of my predecessors at Public Opinion, Roger Mais, who spent nine months in prison for being rude to Sir Winston Churchill and the Empire. His managing editor, O T Fairclough narrowly missed the same fate, as did I 20 years later - in the sixties, when parliament solemnly debated whether I had been excessively and offensively critical of Sir Alexander Bustamante - agitator turned imperialist.

The basic thrust of our nascent anti-terrorism act is, from what I can gather, to repeat prohibitions already contained in other laws and to add a few more, just to make us realise that we are living in the new world constructed by Kafka, Orwell and Bush.

Oddly enough, if we take the new act seriously, it will, it seems to me, be able to catch and identify as terrorists, some very large corporations for reasons I will not explain today. It will probably also snare journalists like me and protesters like those who demonstrated last year against the Iraq war.

What most of us don't realise is that Jamaican law is already oppressive and able to take care of whole swaths of people who could even marginally be described as terrorists. In 1974 we passed the Gun Court Act and the Suppression of Crimes Act. The latter was repealed because it allowed the police too much power, in addition to the abusive imperium they already enjoyed. We don't need a new act, all we need is some sharper prosecutors.

'. . .Don't Fix It'

Which, of course, brings me to the process of justice itself. Lots of people will argue that I am (God Save Us!) a diehard conservative because I am against the Caribbean Court of Justice as presently envisioned. My reason is simple. We have no Lord Steyns here.

An article in the West Indian Law Journal a few years ago by Zanifa McDowell, a Master of Laws of Cambridge, and at the time a temporary lecturer in Law at the UWI, asks some very serious questions about the quality of the Court - the essential question in my mind.

Unfortunately I do not know whether Zanifa McDowell is a man or a woman, so I hope I will be excused for not identifying her/him by the correct title. In the introduction to an examination of the quality of our judges, McDowell says that while the political and other questions tend to be the main concerns, the real concern should be whether the court would be competent and capable of effecting justice between parties. "Judging from the relative volume of cases referred to the Privy Council, and judging from the number of over-turned decisions, arguably, the issue concerning intellectual maturity, analytical ability and sound judgment of our local judges falls squarely into question."

After examining a number of appeals from the Caribbean to the Privy Council it becomes clear that sometimes judges, including whole courts, make serious mistakes, even at an elementary level.

And like me, McDowell would plead for time to ensure that something" positive and constructive is done to improve the competence and abilities of those whom we entrust with the highest honour - that of dispensing justice and upholding the rule of law."

For me, the law has two brand new heroes: Steyn and McDowell. We, whose necks are on the block, salute them.


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