Robes, gowns and the historic inequities in law
The thought of justice and the idea of equal justice under the law have once again raised the attention of lawmakers in the United States, this time with added awareness and apprehension spread around the world.
Ultimately it comes around to the courts and the prosecutorial departments bringing cases to what should be the bar of justice.
If it were a mechanical exercise there would be no arguments about whether the system is bias or tainted. Given that the network of policing, prosecution and, ultimately, judgment, is at every level a human affair, the issue of bias, cultural or racist attitudes is indeed a genuine concern within any justice system.
The belief that a badge, a robe or a wig represents some form of piety or judicial sanctity does not bear out in practice or history.
Bermuda is a classic example of a small jurisdiction where conflict of interest is near inescapable, where the relatedness between business, law and society is somewhat incestuous.
In Bermuda, there is no public judicial class and private legal practice, but often lawyers working in private capacity who migrate through the judiciary to become magistrates and judges.
We can find judges who in their private capacity dealt with matters upon which they later as judges made rulings.
It is sad to have to reflect on “back in the day”, but when banks were the robbers, they hired smart lawyers to conceal their corruption. The cases were bad enough that the culprits would not be mischaracterised if they wore white hoods.
Rolling the clock forward, those gentleman — now in their distinguished, greying years — still have a penchant for wearing gowns and while the black gowns have the aura of social acceptability, they are not disinfectants, certainly no more so than preachers' robes in preventing sexual abuse against little boys.
The robes cannot cleanse the souls of those who wear them, or remove their bigotry for the persons whom they damaged in their previous lives as lawyers.
Yet this is Bermuda, a jurisdiction that wants to be seen as a fair and equitable society. To add to the cosmology of fairness, there was a move to create the office of Ombudsman and later the sunshine legislation allowing access to information — the efficacy of both having been challenged.
Although talked about for years, even promised at one stage, there is still a firm lid preventing advocacy by the use of contingency-fee arrangements, claiming it would cause Bermuda to become a litigious society. Also the use of McKenzie friends in court is restricted to a level of impracticality. In short, it is difficult, if not extremely expensive, to get justice through the justice system.
In the US, the George Floyd incident has caused a conversation to start in both houses of legislature about the US justice system. I don't know what will begin the conversation in Bermuda. The problem for justice within the legal system here is as deeply rooted but different.
Lawyers are people, too; they have their professional and personal lives. They have personal and professional debt. They are reliant on institutions to earn their keep. It is understandably difficult to attack the hands that feed them. This is where Joe Public is at risk: when attorneys make a perfunctory attempt at justice, which in real terms amounts to collusion.
Could this be because the circle of lawyers is too small? Would it help if foreign lawyers and attorneys, particularly those within the Commonwealth or simply the British jurisdictions, were allowed access to our justice system?
Where justice is concerned, we should be able to turn over every stone, perchance evidence is hiding under a rock. How can we be sure that local lawyers are not compromised by personal or corporate interest?
There are too many whose bark is ferocious as a pitbull behind the closed doors of their office, who will charge a fine fee for a well-decorated opinion, but when let loose are as harmless as a puppy in court with their tail between their legs.
How can the public be assured there is no “deep state” or administrative malfeasance within the court system (Royal Gazette article, March 11, 2019)? We need to break this closed circuit and become an open jurisdiction, and perhaps the only way is to develop a broader forum for legal representation.
Even tribunals, especially the ones I have seen, it is questionable whether they are meant to quash public concern rather than remedy them. I can recall after one such tribunal, the Minister of Works saw me on the streets in Hamilton and said, “You've had your f***king day in court. I'm going push that road as hard up against your f***king property as I can.”
Now the matter referred to was a public good, not merely personal. Open remits with no guides or goals to achieve justice is a ceremonial closure to potential wrongs, giving the perception that justice was at least tried, even if not delivered.