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What happened to the enthusiasm of lawyers?

Many years ago — in fact, to be precise, it was 45 years and just shy of one month — I learnt that the idea of “judgment day”, as opposed to being a cataclysmic event, was actually always happening simultaneous to what we perceived as now.

That living in a perpetual mode of waiting for that day was an illusion that allowed the notion there was such a reality as time and space, and inside that perception of time and space was the facility for wrong and injustice to continue.

Thankfully, there is a faculty where persons such as the Reverend Martin Luther King Jr can say with such clairvoyance and with compulsion: “Mine eyes have seen the glory of the coming of the Lord” and can see “the day that justice flowed like a river”.

He said: “I might not get there with you, but you will get to that promised land”.

In my short life of near 70 years, I have witnessed many things that were not fair, and were cruel and unjust.

Fortune has benefited me to have known and have dialogue with elders, many of whom were placed highly on the front lines of the battlegrounds for civil rights and human dignity. I place the struggle for dignity as the highest struggle of them all.

Those elders could speak eloquently about the joint select committees and commissions to resolve the unrest within the community for matters such as ending property votes in favour of extension of the franchise, or voting rights through adult suffrage.

I recall, too, aside from my own travails, the struggles of my first cousin, who spent the value of all of his property and ultimately, his own health, fighting to reclaim the lost property of our grandfather — only to win the truth and efficacy of his case in court, but lose the war to regain one inch, and without compensation because of the statute of limitations and the case not filed within the prescribed time.

I wrote the other day about justice and in that piece, I mentioned my experiences with tribunals and wondering whether they were previously meant to quash matters or truly bring healing to lingering societal wrongs and injustices.

There is now an ongoing tribunal that came with a lot of fanfare, including a march on Government House, etc. Could this be the day when justice flows like a river? Is this the day of reckoning when the veil is lifted and the light is shone into the dark places barred by statutory constructs? I recall in the history of Parliament when a joint select committee was formed to look at extending the voter franchise and, after a prolonged period with behind-the-scenes deliberations, which at times were heated, they came back to the House to report no real progress, but agreed to continue the dialogue.

That situation prompted the Member of Colonial Parliament Arnold Francis to deliver a famous comment: “After a long pregnancy the elephant went into labour where she moaned and groaned, twitched and twirled, then finally she delivered. But when they looked at the baby, she had delivered a mouse.”

And you can hear him saying, in that famous tone, “Mista Speaka, it was a mouse. This joint select committee's report was supposed to bring an elephant, but it's a mouse.”

Not wanting to prejudge the outcome of this tribunal, because it has very competent, able-bodied persons on the commission, but the strength of the proceedings is based on the strength of the remit.

As is in so many cases, it is not the words of the remit or the Act, which generally glows with promises of true justice, but rather how the words are interpreted by the commissioners or the lack of clear definitions on statutes that provides the scope of their reach.

In that regard I present the Human Rights or Ombudsman Act and the role as interpreted and that which has been followed. The Act speaks gloriously to a far larger role than how the offices actually have functioned.

One thing we know, there is a huge expectation in the public mind. We have talked publicly for years about systemic racism and even reports such as the Newman Report.

The question now is, will we find the injustices in their various nuances and understand fully how they manifested within the walls of institutions? Or will we determine that they were unethical but not illegal because they fall shy of the tribunal remit? If so, we end up in the dilemma faced by the Human Rights Commission, where an action, which clearly appears as discrimination but by the “law of evidence” under the criminal codes, cannot be supported.

In the original Human Rights Act, the bar was that it needed only to “appear” to 12 rational persons' minds that discrimination took place.

Later, with the preponderance of lawyers on board, they reinterpreted the role of the commission to reflect that the offences had to meet the law of evidence instead — that is, prove it was prejudicially motivated.

The original commission's role bore the unofficial title “the jury”, but then later it was changed to functionally become witnesses with testimonials.

We don't want to have cases such as “Yes we handed him poison, but he did not have to drink it”, then have it ruled as suicide. Nor do we want what may be the largest bodies of offences made by financial institutions, escape under the guise of they having the right under commercial transactions.

Aside from the commission, what happened to all the enthusiasm of lawyers, many of whom went into universities for that profession with the aim of bringing justice to the world?

Isn't this their time? Where are all the vows and promises to make a better world? Why leave it to poor Joe Public to put together the cases? Where is the help? Isn't this your time to shine? Or do you expect that justice will just flow like a river by hand of the Almighty without the aid of lawyers?

It's enough to say we just don't need another mouse to be born in 2020.

Cutting wit: the late Bermudian lawyer and Member of Colonial Parliament Arnold Francis

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Published July 17, 2020 at 9:00 am (Updated July 17, 2020 at 9:28 am)

What happened to the enthusiasm of lawyers?

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