justice on trial: the curious case of deborah patrick-gardner · 2019-06-14 · justice on trial:...

Justice on trial: The curious case of Deborah Patrick-Gardner

Head of court management services replaced while on study leave, then retired from the public

service

BY DESMOND ALLEN Executive editor

politics, but when a highly qualified public s

occupied by the wife of a People’s National Party (PNP) bigwig, it got tongues wagging.

Deborah Patrick-Gardner has taken to the Supreme Court to solve what she regards as a mystery

after months of fruitless efforts to get a satisfying answer as to why she was replaced as head of

the Court Management Services, and then forthwith retired from the public service.

“For almost eight months I was languishing in the Ministry of Justice, given nothing to do and

given little or no resources. Hardly anyone spoke to me. I was humiliated and the worst part is

Justice on trial: The curious case of Deborah Gardner


BY DESMOND ALLEN Executive editor – special assignment [email protected]

PATRICK-GARDNER... I was in

total shock when on May 24, 2016 I

received a letter from the PSC

saying that I had been retired from

the public service on grounds of

reorganization

It may not have anything to do with

politics, but when a highly qualified public servant returns from study leave to find her office


Gardner has taken to the Supreme Court to solve what she regards as a mystery

ess efforts to get a satisfying answer as to why she was replaced as head of




Justice on trial: The curious case of Deborah


special assignment [email protected]

GARDNER... I was in

total shock when on May 24, 2016 I

received a letter from the PSC

saying that I had been retired from

the public service on grounds of

It may not have anything to do with

ervant returns from study leave to find her office


Gardner has taken to the Supreme Court to solve what she regards as a mystery

ess efforts to get a satisfying answer as to why she was replaced as head of




that no one could give me an answer as to why I was being treated this way,” Patrick-Gardner

told the Jamaica Observer in an interview.

Last week, the Supreme Court granted her application for an injunction to bar the Public Service

Commission (PSC) from retiring her from the public service, until the case is heard. Patrick-

Gardner is contending that the entire process leading up to her purported retirement is

unconstitutional and should not stand.

In the application filed by her attorney Hugh Wildman, she claimed that at no time was she

afforded an opportunity to be heard by the Public Service Commission before any decision was

made to retire her from the post of principal executive officer of the Court Management Service

and from the public service.

Patrick-Gardner is further insisting that to her certain knowledge the post is still in existence,

despite legislation establishing a new post of director of court administration to do the work that

she performed as principal executive officer of the Court Management Service.

Acting Chief Personnel Officer of the Services Commission Jacqueline Mendez, the first

respondent in the case, did not respond to an Observer request, through her assistant to comment

on the allegations after almost a week.

The assistant, however, confirmed that the office was aware that the matter was before the courts

and promised to pass the request to her boss. The entire affair began innocently enough.

Patrick-Gardner, a bright, outspoken, 43-year-old woman with a Master’s Degree in Sustainable

International Development from the highly touted Brandeis University Heller School of Public

Policy, Massachusetts, had distinguished herself serving in the Office of the Cabinet as principal

director for policy development in the Public Sector Modernisation Division, from 2004 to 2010.

Among her big projects, she led the process that crafted the regulations for the executive

agencies that were to transform the public service and bring it into the modern times. It was her

job to put in place the accountability framework for permanent secretaries and CEOs of the

executive agencies that Cabinet eventually approved.

Six years ago, almost to the day, she was appointed principal executive officer of the Court

Management Services, which provided administrative services for the courts, such as finance and

accounts; customer and client services; human resources management and administration;

internal audit; maintenance of court facilities and information technology services.

Her boss, the chief justice, suggested it would be helpful for her to pursue legal training to have a

better appreciation of the functions of the court system.

Patrick-Gardner took the advice and applied for three-years’ study leave to cover the duration of

a Bachelor of Laws (LLB). The leave was broken down into two parts: two years at full pay and

one year at no pay and for which she would have to apply. She finished the course a year ahead

of time and still managed to do it with first class honours.

She gave notice she would be returning to work after the usual 15-day recreational leave for

which she had applied. On a high she turned up for work on September 25, 2015. But she was in

for a rude awakening.

“I was told that I could not occupy my office because the person who was acting for me was still

in my office. The person was Carol Hughes,” said Patrick-Gardner.

Carol Hughes is the wife of Dr Wesley Hughes, the former financial secretary and a PNP big

wig.

Patrick-Gardner figured that her coming back earlier might have been the reason for her office

still being occupied by Mrs Hughes. But two letters followed swiftly, one telling her to report to

the chief justice’s chambers and the other that she had been approved to go on a third year of

unpaid study leave to do a Certificate in Legal Education.

“I did not apply for the third year of leave. I did not want unpaid leave, I could not afford unpaid

leave; and I told the chief justice so,” she insisted. “The chief justice spoke to the chief personnel

officer, Dr Lois Parkes, who told me to put my refusal in writing, which I did.”

On September 28, 2016 Patrick-Gardner received a third letter, this time informing her that she

had been deployed to the Ministry of Justice, reporting to Permanent Secretary Carol Palmer.

The following day when she arrived at the ministry, she had a meeting with Donna Parchment-

Brown, then director of the Justice Reform Implementation Unit, and Christine Gobern, senior

director of human resources management and administration in the ministry.

“I was informed that I would be assigned to Parchment-Brown’s unit. That meant that I, as a

head of department, was being told to report to a unit within a department and to someone my

junior. I spoke to Carol Palmer, who confirmed that I was being related to a post — Senior

Executive Group 5 — which was two levels below my rank. The Public Service Regulations

stipulate that a deployment should be to an equivalent position. This therefore, was very wrong.”

SHOCK RETIREMENT

On October 1, 2015, Patrick-Gardner met with Dr Parkes, who advised her to put her concerns in

writing and she would take it to the Public (Board) Services Commission (PSC). Receiving no

response she again wrote to the commission on October 16, 2015. No response. She wrote again

on January 8, 2016.

This time she got a response from Jacqueline Mendez, informing her that Dr Parkes had left the

job and she, Mendez, was acting in the position. She also promised to take the matter back to the

PSC. Last month, the shocking response came.

“I was in total shock when, on May 24, 2016, I received a letter from the PSC saying that I had

been retired from the public service on grounds of reorganisation,” said a visibly distraught

Patrick-Gardner.

Reorganisation referred to an amendment to the Supreme Court Judicature Act which replaced

and superseded her department, the Court Management Services, with the Court Administration

Division.

“When I looked at the functions of the new body, I found it was the same old Court Management

Services and the position of director of court administration the same position I was being retired

from,” Patrick-Gardner complained.

“I was in shock. I was crying. It was completely unexpected. I knew I was outspoken and always

wanted to see change, but they were always meant to improve the department and I was of the

impression that given the brain drain, someone of my qualification and talent would be of value

in the public service.”

With the retirement letter in hand, she sped to Wildman, the Jamaican former director of public

prosecutions in Grenada, and instructed him to file an application for an injunction to stay the

action, followed by a second application for leave for a Judicial Review in the Supreme Court.

Patrick-Gardner said that between September 25, 2015 and May 24, 2016, she went through

humiliation: “I was put into a tiny space and given little or no resources at the Ministry of

Justice. I was completely isolated.”

Struggling to come to terms with this dramatic turn of events, Patrick-Gardner said: “I had never

received one disciplinary letter in my 22 years in the public service. I have never been accused of

any misconduct. I always follow government procedures. Yes, I express my views. I am a

stickler for performance. But I see now that they don’t want disagreement or change.”

Bar Association Reminds Lawyers To Maintain Good Conduct

The Gleaner

The Jamaican Bar Association is reminding attorneys they must conduct themselves with the

highest standards of the profession.

It says the same applies to judges.

The association notes that the Canons of Professional Ethics requires attorneys to maintain the

honour and dignity of the profession and abstain from behaviour which may tend to discredit the

profession and to maintain a respectful attitude towards the Court.

The Bar association is reacting to discussions in the public domain about the clash in court on

Monday between senior attorney K.D. Knight and Supreme Court judge, Lennox Campbell, in

the Trafigura case.

Knight and the judge engaged in several testy exchanges one of which involved the Queen's

Counsel admitting that he was being hostile to the judge and refusing to follow certain directives.

Knight has received some flak from some members of the public with calls being made for him

to face disciplinary action.

The Bar Association says a judge has the power and responsibility to maintain the dignity of the

court and, where necessary, may sanction attorneys who behave inappropriately.

It further points out that any person who is aggrieved by the alleged professional misconduct of

an attorney has the right to lay a formal complaint to the Disciplinary Committee of the General

Legal Council.

Letter Of The Day| Attorneys Must Respect Courts, Judges

The Gleaner

THE EDITOR, Sir:

The Jamaican Bar Association (JamBar) is aware of a letter published in The Gleaner on June 9,

2016 entitled 'K.D. Knight out of order!'

It is important to note that it is the General Legal Council, and not the Jamaican Bar Association,

that is responsible for discipline within the legal profession.

Notwithstanding, we will use the opportunity of this public discourse to say that all attorneys and

judges are required to maintain certain well-established standards of conduct and to urge all

members of the profession to be mindful of that.

Specifically, the Canons of Professional Ethics under the Legal Profession Act provide as

follows:

Canon I (b) - "An Attorney shall at all times maintain the honour and dignity of the profession

and shall abstain from behaviour which may tend to discredit the profession of which he is a

member."

Canon V (a) - "An Attorney shall maintain a respectful attitude towards the Court, not for the

sake of the holder of any office, but for the maintenance of its supreme importance and he shall

not engage in undignified or discourteous conduct which is degrading to the Court."

Canon V (b) - "An Attorney shall encourage respect for the Courts and Judges."

OVERRIDING DUTY

Attorneys are also officers of the court, and as said in the well-known case of Rondel v Worsley,

"an officer of the Court concerned in the administration of justice ... has an overriding duty to the

Court, to the standards of his profession ...".

It is therefore important to note that all attorneys are subject to the same disciplinary standards

even if it has always been expected that older, more experienced members of the profession have

the additional responsibility to be role models and to guide younger, junior members.

Ultimately, a judge has the power and responsibility to maintain the dignity of the court, and

where necessary, he or she may sanction attorneys who behave inappropriately in the face of the

court.

Of note, also, pursuant to the Legal Profession Act, any person who is aggrieved by the alleged

professional misconduct of an attorney has the right to lay a formal complaint to the Disciplinary

Committee of the General Legal Council or any member of the General Legal Council may also

lay a complaint against any attorney in relation to which there are allegations of professional

misconduct.

"The reputation of the profession is more important than the fortunes of any individual member.

Membership of a profession brings many benefits, but that is a part of the burden." Lord Rodger

of Earlsferry in Gupta v The General Medical Council.

Sherry Ann McGregor

President, Jamaican Bar Association

Appeal Court Schedules Hearing For Trafigura Case

The Gleaner

Norman Gridley

The Court of Appeal has scheduled a sitting for this week with all attorneys involved in the

much-delayed Trafigura case.

The Gleaner-Power106 news centre understands that the sitting will be used as case management

to settle a number of issues related to an appeal that has stalled the case since November 2011.

Attorney-at-law K D Knight, who represents People’s National Party (PNP) President Portia

Simpson Miller, has also indicated in a letter to The Gleaner, that he expects dates will be set for

the hearing of the appeal.

Authorities in The Netherlands want Simpson Miller and PNP functionaries Robert Pickersgill,

Phillip Paulwell, Colin Campbell and businessman Norton Hinds to answer questions under oath

about a J$31 million donation to the party in 2006 while it formed the government.

Lawyers for the five are appealing a decision by Supreme Court judge Lennox Campbell that the

answers be provided in open court.

The Appeal Court sitting is scheduled for Friday at 9:30 a.m.

Among the issues to be settled is whether Justice Campbell has provided reasons for his decision.

Constitutional proposals for 2016

Stephen Vasciannie

Sunday, June 12, 2016

concerning constitutional change. Arising from recent election promises, Prime Minister Andrew

Holness has announced that his Administration will be initiating changes intended to bring

a fixed election date in Jamaica, as well as a fixed term of office for the prime minister (a limit of

two five-year terms).

Deeply entrenched

No doubt, the former change will require a constitutional amendment: Sections 64 and 65 of the

Jamaican Constitution, taken together, grant prime ministerial discretion in the determination of

the date for general elections, subject to a five

The removal of this discretion would require a vote of two

followed by a referendum in which the majority will shall prevail. In the event, however, that

two-thirds support is not forthcoming from both Houses, then the question may nonetheless be

put to a referendum. In this referendum, the removal of prim

achieved if two-thirds of the electors vote to support the measure.

Constitutional proposals for 2016

Stephen Vasciannie

Sunday, June 12, 2016 4 Comments

Limiting an individual’s tenure will not necessarily

achieve a new dispensation, and making the process

mandatory does not guarantee solving a

not yet defined.

Jamaica may be on the cusp of deliberations


Holness has announced that his Administration will be initiating changes intended to bring



onstitution, taken together, grant prime ministerial discretion in the determination of

the date for general elections, subject to a five-year limit during peacetime.

The removal of this discretion would require a vote of two-thirds of both Houses of Parl


thirds support is not forthcoming from both Houses, then the question may nonetheless be

put to a referendum. In this referendum, the removal of prime ministerial discretion would be

thirds of the electors vote to support the measure.

Limiting an individual’s tenure will not necessarily

achieve a new dispensation, and making the process

mandatory does not guarantee solving a problem

may be on the cusp of deliberations


Holness has announced that his Administration will be initiating changes intended to bring about



onstitution, taken together, grant prime ministerial discretion in the determination of

thirds of both Houses of Parliament,


thirds support is not forthcoming from both Houses, then the question may nonetheless be

e ministerial discretion would be

Two terms only

The plan to place a limit on the term of office of the prime minister will also require

constitutional amendment. Section 70(1) of the constitution currently authorises the governor

general to appoint, as the prime minister, the member of the House of Representatives who, in

the governor general’s judgement, “is best able to command the confidence of the majority of the

members of that House”.

Neither this appointments clause nor any other provision in the constitution restricts the selection

of a prime minister to two terms. Thus, for the restriction to be implemented, there will need to

be an amendment which will have the effect of narrowing down the scope for selection of the

prime minister. This change, however, will not require a referendum. Nor will it require a two-

thirds majority in both Houses of Parliament. Instead, on one reading of the constitution, it may

be brought about by a simple majority vote in both Houses of Parliament.

CCJ referendum

In its recent review of the performance of the Holness Administration in its first 100 days, the

Nationwide morning programme replayed parts of a pre-election speech by the then leader of the

Opposition. In the speech, Holness promised that there should be a referendum on the Caribbean

Court of Justice (CCJ), and added immediately that there should also be a referendum on the

“buggery” law.

The referendum on whether Jamaica should become a party to the appellate jurisdiction of the

CCJ has been the subject of extensive and long-term deliberation. It is not necessary, therefore,

to belabour the point here. As I have argued previously, however, Prime Minister Holness should

be encouraged to live up to his pre-election insistence on the referendum concerning the CCJ.

This is not only a matter of ensuring that the prime minister honours his promise; it would also

provide an opportunity for Jamaicans to express their view on where Jamaica’s judicial

sovereignty should lie.

Off the fence

In this referendum, the prime minister should lead his party off the fence. The case for the CCJ

has been well made, and Jamaica has honoured significant payment requirements in support of

the court. If, nonetheless, the Jamaica Labour Party (JLP) remains opposed to the court, the

leader of the party must present a plausible position — with a viable, fully thought out and

funded alternative — to the electorate.

To be sure, the People’s National Party (PNP) has long opposed a referendum on the CCJ;

perhaps, indeed, this opposition started in earnest on the day following the plebiscite relating to

the West Indian Federation. But, at the same time, the PNP — with leadership on the point from

then Prime Minister P J Patterson — placed itself in the vanguard of arrangements for the CCJ in

the years leading up to the court’s inauguration. In the circumstances, Portia Simpson-Miller, the

leader of the Opposition, may consider taking up the challenge of winning a referendum in

support of the CCJ.

Referendum on gay rights?

As to the referendum on the “buggery” law, Prime Minister Holness should be encouraged to

spell out what precisely he wishes to present to the Jamaican people for consideration.

Parliamentarians, when they last amended the constitution to incorporate the Charter of

Fundamental Rights and Freedoms in 2011, reached conclusions about sexual issues.

So, it is not entirely clear what the prime minister wishes to achieve by a referendum on this

subject. Six or seven years ago, then Prime Minister Simpson Miller publicly contemplated

parliamentary consideration of issues relating to gay rights: if the Government wishes to take up

this question now, it could be ventilated in Parliament in the first instance. Parliamentary

consideration would allow representatives of the people to resolve the issue in a calm and

judicious manner.

Under the constitution, if the law in this area is to be changed, a two-thirds majority of both

Houses of Parliament would need to give approval.

Impeachment

On the hustings, then Leader of the Opposition Holness also argued that in his first 100 days he

would initiate efforts to provide for impeachment of parliamentarians. As reported in the

Jamaica Observer on February 9, 2016, Holness maintained the possibility of impeachment

would “add another layer of protection to ensure that only members of unquestionable integrity

sit in Parliament”. In advancing this proposal, Holness agreed with the stance taken by the

Constitutional Commission of Jamaica in its 1993 report on possible changes to the constitution.

On this point, the Constitutional Commission noted that it was “eminently reasonable” for

Parliament to conduct impeachment proceedings, and pointed out that this would be consistent

with the idea that Parliament may take disciplinary action against its members (Report of the

Constitutional Commission, Jamaica, August 1993, page 49). The Constitutional Commission

also recommended that impeachment proceedings should be subject to judicial review.

Holness’s proposal on impeachment is therefore readily defensible. If politicians involve

themselves in wrongdoing, they should be vulnerable to sanctions arising from Parliament. In

this regard, however, I would offer one caveat and a general observation. The caveat is that

impeachment proceedings by Parliament should not be allowed to give rise to the defence of

double jeopardy.

A parliamentarian may commit wrongdoing in breach of the criminal law of Jamaica; if so, the

parliamentarian, upon being sanctioned by Parliament, ought not to then claim that he/she is

immune from criminal charges in the national court. Perhaps the way to avoid the double

jeopardy problem is to define the class of impeachable offences in ways that confine

impeachment proceedings to breaches of parliamentary rules.

Recall power

The general observation pertains to the power of recall. Holness’s statement about impeachment

refers to the “integrity” of parliamentarians and implies that those who fall short in this area

should be dismissed from the Parliament. If the dismissal from Parliament arises from decisions

of Parliament itself, then this would fall under the rubric of impeachment. But, if the dismissal

arises because the people insist that a particular member must lose his seat, then this relates to

the power of recall.

If Holness supports the power of recall, then he may well be in line with popular sentiment. It

should be noted, though, that this position is inconsistent with the perspective taken in the

aforementioned report of the Constitutional Commission. Specifically, the Constitutional

Commission found, “after careful consideration”, that the power of recall would be difficult to

implement, vulnerable to abuse, and would contribute to both insecurity of parliamentary tenure

and a plethora of by-elections (page 48).

It would be useful, therefore, for the prime minister to clarify what he has in mind in relation to

impeachment of parliamentarians.

Sensitive posts

In its 2016 election manifesto, the JLP presented a number of other proposals with constitutional

implications. One concerns appointments in relation to certain sensitive posts. For the JLP,

appointments for the positions of the chief justice, president of the Court of Appeal, director of

public prosecutions, public defender, contractor general, governor of the Bank of Jamaica, and to

membership of the police, judicial and public service commissions should require approval of a

two-thirds majority in both Houses of Parliament.

Under the current constitution, most of the persons holding the named positions are appointed by

the governor general acting on the recommendation of the prime minister after consultation with

the leader of the Opposition (namely, the chief justice, president of the Court of Appeal, and

members of the judicial, public service and police service commissions).

Would the change proposed by the JLP be helpful from a policy point of view?

In current practice, the governor general is legally obliged to appoint individuals to most of the

named positions on the basis of the prime minister’s decision. And the prime minister, though

required to consult the leader of the Opposition, is not required to defer to the latter’s viewpoint.

So, there have been instances in which, for example, a Court of Appeal president has been

appointed over the protests of the leader of the Opposition.

Accountability

This approach — which gives ultimate authority to the will of the prime minister — may be

justified on the basis of democratic accountability. The prime minister represents the

Government, and is politically responsible for appointments for sensitive positions of State. If

those appointees excel in their positions, the prime minister may claim the credit; and, by the

same measure, if the appointees are inadequate for the task, the buck stops with the prime

minister.

This is not to say that the prime minister should have the appointing power for every sensitive

position of State; and, indeed, there may be better ways of organising judicial and other

appointments. But, on the other hand, the appointment method for the defined positions in the

current dispensation has worked well in most instances, and has avoided the open political

battles that take place, for instance, over appointments to the United States Supreme Court.

Veto power

The main counter-argument that may be proffered by the JLP against the current system is that it

gives insufficient weight to Opposition perspectives. In the two-thirds approach recommended

by the JLP, the Opposition party would always have veto power in respect of the final

appointments. Although this may be helpful in some instances, it may be inefficient as an overall

system of appointing people to the named positions. This weakness arises from the easily

demonstrable political divisions in Jamaican society.

More specifically, given Jamaica’s deep political divisions, it is fair to expect that, in many

cases, the first choice of the Government for one of the named positions will be viewed with

scepticism, if not hostility, by the Opposition. And so, the possibility of obtaining two-thirds

support in both Houses will be beyond realisation, at least in some instances. If this occurs often,

the smooth operation of key governmental function may be seriously undermined.

Risk and ridicule

In addition, if appointments to the named positions become a matter of voting in Parliament, we

can be sure that some eminently qualified individuals will remain outside the selection process.

Not only does the voting subject individuals to the prospect of public rejection and ridicule, it

also throws open the selection process to political manoeuvring and manipulation: Party X may

opt not to support the best qualified candidate this time around, because Party X’s candidate for a

sensitive position was rejected in an earlier election.

The position recommended by the JLP is analogous to the arrangements for the appointment of

the chancellor and the chief justice of Guyana. In the Cooperative Republic, these positions are

subject to consensus between the president and the leader of the Opposition. This approach, in

the divided Guyanese polity, has resulted in an extended period in which the formal, substantive

appointment of both a chancellor and a chief justice has been stymied on the basis of lack of

agreement.

The changes recommended by the JLP pertaining to the appointment of the chief justice, the

president of the Court of Appeal, and members of the services commissions would require

support from two-thirds of both Houses of Parliament to become law (Constitution, Section

49(2)).

Senate appointments

Another constitutional change implicit in the JLP’s recommendations is to be found under the

heading ‘Greater Representation for Civil Society and the Diaspora’ in the 2016 Manifesto (page

15). There it is proposed that there should be reform relating to appointments to the Senate. The

Manifesto is not definitive on this point, but it does indicate that the JLP “will explore the

possibility of including in the Senate three (3) independent representatives”. Later in the

document, the link to the Diaspora is clarified, for the party proposes that the governor general

be authorised to select one representative to advance views of the Diaspora (page 39).

There are two proposals inherent in the JLP’s position. The first concerns the composition of the

Senate as a general matter. In the current constitution (Sections 35(2) and (3)), the prime minister

and leader of the Opposition are responsible for the appointment of 13 and eight senators,

respectively. This gives the Government a majority for ordinary legislation, and is intended to

enhance Parliament’s capacity to pass laws to ensure “peace, good order and government” in the

country (Constitution, Section 48(1)).

The JLP proposal, which would embrace three independent senators, does not specify whether,

and to what extent, the independent senators would affect the composition of the Senate. Would

the three independent senators be appointed in lieu of three Government senators, so that the

Senate comprises 10 Government Senators, 8 Opposition Senators, and 3 independent members?

Or would the independent members be drawn from the Opposition benches?

The permutations are substantial. And importantly, some arrangements could mean that the

governing party does not enjoy an automatic majority in the Senate, as is currently the case.

Clearly, if the JLP wishes to promote this change it will need to elaborate on its plan.

Government majority

It will be recalled that at one time Prime Minister P J Patterson experimented with having two

independent senators in Parliament, but this arrangement ensured that for ordinary legislation the

governing party retained its majority, with 11 members out of 21.

The Constitutional Commission also addressed the question of the composition of the Senate in

its 1993 report. In brief, a majority of the members of the commission supported expansion of

the Senate to 35 members, with 15 nominated by the prime minister, 10 by the leader of the

Opposition, and 10 by the equivalent of the governor general (after consultation with the prime

minister and the Opposition leader). This approach prompted reservations on the part of the PNP,

for it implied that the Government could consistently be outvoted by non-government groups —

an unfamiliar scenario within the Westminster export model.

Significantly, for the JLP proposal relating to the Senate to be implemented, there will need to be

a referendum — the composition of the Senate as set out in Section 35 of the constitution is

deeply entrenched.

Diaspora representative

The second aspect of the JLP’s proposal concerning the Senate pertains to the appointment of

one representative for diaspora affairs. Again, clarification at the policy level is needed. Is it

intended that this representative would reside in Jamaica during the life of the Senate? And, if so,

would the representative then be fully in touch with the interests and perspectives of members of

the Diaspora? Alternatively, would this representative visit Jamaica for Senate meetings, thereby

running up costs for weekly trips from, say, the US?

And, again, if the representative is normally resident in the United Kingdom, would it be realistic

to expect that person to be present for Senate meetings on a regular basis?

More generally, the JLP may also need to explain the philosophical basis for its proposal. It may

be that there is a political need for representation of the Diaspora at home — but, if so, then one

member in the Senate may be perceived as tokenism.

Alternatively, or in addition, the underlying rationale for Diaspora senators may be premised on

the assumption that individuals living overseas may bring the interests of Jamaicans abroad to

the attention of the Jamaican authorities at home and spread information about Jamaica in

foreign communities. If this is the case, it is at least arguable that the functions of representation,

information-gathering and information-sharing are traditionally assigned to Jamaican

representatives sent overseas as diplomats and consular officials.

Stephen Vasciannie, CD, is professor of international law at the University of the West

Indies, Mona, and a former Jamaican ambassador to the US and the Organisation of

American States.

He wants to take my baby

ALL WOMAN Monday, June 13, 2016 , Margarette MACAULAY

DEAR MRS MACAULAY,

I am a Jamaican citizen who had my son in the US. His father is Jamaican by birth and a citizen

in the US for over 30 years. He pushed for me to go to the US to have the baby, where he told

me he had insurance and stuff sorted out. When I got there, I discovered all that was a lie. He

wanted me to lie to get insurance.

I gave birth to the baby and I have a lot of medical bills up there. Now I’m back in Jamaica and

he is threatening to take the baby away from me.

What can I do to get joint or sole custody?

I would suggest that you go as soon as possible to the Immigration Office (if you are in

Kingston, this is the first floor of the Passport Office on Constant Spring Road) and apply to

register your son as a Jamaican citizen. You see, as you are a citizen of Jamaica and his mother,

he is entitled to citizenship through you, his mother. You must take a certified copy of your birth

certificate and your son’s with you when you go to do the application. As he is a US citizen by

birth and by descent, he should have no trouble with dual citizenship.

Anyway, how do you go about being the legal custodian of your son?

You should go to the Family Court for your parish or to the one which serves your parish, or to

the Resident Magistrate’s Court serving your parish if there is no Family Court. Take a certified

copy of your son’s birth certificate with you and your identification — driver’s licence, national

ID card or your passport. There in the court’s office, and with the assistance of the clerk of

courts, make your application for ‘custody, care and control’ of your son. Your ability to apply

for maintenance would depend on whether your son’s father resides in a state which has

reciprocal arrangements with Jamaica with regard to the enforcement of its orders here and

Jamaican court orders there.

You must apply for ‘care and control’ as well as for ‘custody’. The care and control order will

give you the legal right to have your son live with you. ‘Custody’ will give you the right to make

all important decisions about your son’s upbringing. If you are granted ‘sole custody’ — which

in the circumstances I advise you to apply for — you would be able to make all the important

decisions without any input or interference from his father. You must decide what you apply for,

but remember that since he has threatened to take your son away, the father must not have free

and unsupervised access to him. The danger of him running away with the child is too strong,

from what you say. If the court wishes to give him access, you must ensure that it is ‘supervised

access’.

Remember that your application will have to be served on the father. The clerk of courts will, of

course, explain all this to you and advise you, if necessary, how to go about such service.

I hope you can, from what I have written, understand the steps you need to take to secure your

son’s residence and upbringing by you and with you alone making all decisions for him.

God bless you both.

Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public and

women’s and children’s rights advocate. Send questions via e-mail to

[email protected]; or write to All Woman, 40-42 1/2 Beechwood Avenue,

Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.

Laws Of Eve | Challenges In Getting Orders For Legal Guardianship

The Gleaner

Requests by clients for applications to be made for relatives to be appointed as legal guardians of

children continue to increase. Despite the number of such applications that are heard by the

courts, the results of the applications are not predictable and depend largely on each judge's

determination as to whether he or she has jurisdiction to consider the applications.

Within the past several years, I have debated whether the court has the jurisdiction to appoint a

relative as the guardian of a child while both parents are alive. Initially, I had concluded that it

did not, because the Children (Guardianship and Custody) Act makes provision in relation to the

appointment of testamentary guardians. However, upon closer reflection, I was persuaded to

accept that the court can appoint and remove guardians in the same way that it did before the act

came into effect. (Not all judges agree with this position).

Here are some of the challenges applicants for legal guardianship of children must be prepared to

face:

• Legal guardianship is not defined in the act, so its scope and effect are not easily explained.

• Although the court still has the inherent jurisdiction to make orders that are in the best interest

of children by virtue of the provisions of the Judicature (Supreme Court) Act, that act does not

provide any details in relation to the instances in which that jurisdiction can be invoked or the

factors to be established before any such order can be made.

• There are some judges who do not believe that there is a need for a court order to be made in

order to appoint a legal guardian for a child, because Section 4 of the Children (Guardianship

and Custody) Act states that a parent may appoint a guardian for a child by signing a deed.

Some effective solutions are needed.

• There needs to be a consistent position from the court as to whether an order granting legal

guardianship of children to others while the parents are still alive is permissible.

• In the absence of a clear statement from the court, our legislators may need to confirm whether

legal guardianship of children while their parents are still alive is sanctioned.

• If so, the factors to be considered when such applications are made need to be clearly stated.

• If there is to be legislative intervention, England's Children Act

1989 may provide a good example of a simple and clear procedure on which our local legislation

could be modelled.

For those who continue to wonder where guardianship fits into the legal landscape,

family.findlaw.com sets out the following useful statement:

"A guardianship is a legal relationship between a minor child and a guardian that gives the

guardian certain rights and obligations regarding the child. A guardianship does not sever the

legal relationship that exists between a child and his or her biological parents, however. Instead,

it co-exists with that legal relationship.

"An adoption, on the other hand, permanently alters the legal relationship between a child and

his or her biological parents. Adopted parents become the legal parents and biological parents

give up all parental rights and obligations. This means that biological parents no longer owe

child support, and that the child can no longer automatically inherit from his or her biological

parents."

The uncertainty in this area is becoming a source of anxiety to would-be guardians, so there is

urgent need for clarity.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes Scholefield DeLeon &

Co. Please send questions and comments to [email protected] or [email protected].

K.D. Knight: I Wasn't Hostile To Judge

The Gleaner

THE EDITOR, Sir:

In your e-paper of June 10, 2016, you published the following article, 'Testy exchange at

Trafigura hearing', which contains a serious misrepresentation: "Knight and the judge engaged in

several testy exchanges, one of which involved the Queen's Counsel admitting that he was being

hostile to the judge and refusing to follow certain directives."

I never at any time said that I was hostile to the judge. On Thursday, June 9, 2016 in an interview

with Cliff Hughes on Power 106, I admitted saying, "I was very hostile" and explained fully to

Mr Hughes that I was "very hostile to the proceedings". That comment by me was made in the

context of the judge embarking on a course which was in contravention of the order for a further

stay of all the proceedings before His Lordship Justice Lennox Campbell imposed by the Court

of Appeal.

The judge wanted to have a date set for the hearing of an appeal lodged in the Court of Appeal in

2011 and over which he has no jurisdiction and sought to know if there would be cooperation in

so doing. I was "very hostile" to that and remain so, as I could never cooperate with that which I

know to be wrong.

The parties are scheduled to go to the Court of Appeal on June 17, 2016 for case management,

which will no doubt include the settling of a date, among other things.

I would be grateful if you publish a correction on the same medium.

K.D. Knight (QC)

Attorney Failed To Hand Over $70m For Property Sale - Probe

The Gleaner

Senior Superintendent of Police in charge of the Fraud Squad Anthony McLaughlin has

confirmed that the police have been conducting an ongoing investigation into a complaint by the

Factories Corporation of Jamaica (FCJ) that an attorney had failed to hand over $70 million he or

she allegedly received up to February 23, 2011, from the sale of one of the entity's properties.

In a Regulatory Audit and Financial Statements Assessments of the FCJ, the Pamela Monroe

Ellis-led Auditor General's Department reported that since 2011, interest and penalties

amounting to $39.6 million have been applied to the outstanding sum.

Monroe Ellis pointed out that subsequent to the audit, the FCJ reported the matter to the Fraud

Squad. The audit, which was done in January this year, covered the period April 2010 to

November 2015.

CONTRACT AGREEMENTS

The oversight body divulged that up to the time of reporting, the FCJ had not taken steps to

recover $750,000 advanced on December 22, 2011, to the said attorney contracted at a cost of $3

million to review the corporation's policy and procedures manual.

According to the auditor general, the attorney did not deliver the draft manual and the service

was terminated in September 2012.

The FCJ subsequently engaged a former employee to develop the policy and procedures manual

at a cost of $750,000. "In none of the circumstances mentioned above did the FCJ present for

audit scrutiny, contract agreements setting out the terms and conditions for the engagement of all

the attorneys. The absence of contract agreements highlights a lack of transparency and

compromises FCJ's ability to protect public funds," Monroe Ellis stated.

CONVEYANCE SERVICES

"The matter above pertaining to the attorney's delay in handing over the $109.6 million

reinforces the importance of FCJ contemplating the use of internal legal services to bring such

transactions fully within the realm of the Government's accountability framework," she added.

Monroe Ellis had earlier highlighted that the FCJ took the decision to engage attorneys to

provide conveyance services instead of using the attorney employed to the company.

The FCJ is owned by the Government and falls under the Ministry of Economic Growth and Job

Creation. The corporation's mandate is to be a catalyst for job creation, development, and

sustainable economic growth and includes the development and management of industrial and

commercial space in the public sector.

The corporation's primary activity is the construction, management, and rental of factories. It is

the largest provider of industrial and commercial real estate in Jamaica to a wide cross section of

industries, including manufacturing, food processing, and commercial activities.

The End

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