The courage to follow through

First Published: 2009-06-26

The following article is an open response to an article by Aneshka Hart’s that was published on Thursday 18th June, 2009 and is reprinted here with the authors kind permission.

Failing the Word, mankind resorts to virtue.
Failing virtue, mankind resorts to humanity.
Failing humanity, mankind resorts to morality.
Failing morality, mankind resorts to legality.

Now legality is the merest husk of faith and loyalty;
It is the beginning of all confusion and disorder.

(adapted from Lao Tzu, “Tao Te Ching, v. 38)

Dear Ms. Hart:

Your article of last week speaks eloquently of the national deafening silence. You say that by our silence, and failure to attend in greater numbers, the candlelight ceremony on June 15th, to honour the victims of crime, that “we disrespected the memory of fallen victims and tomorrow’s victims as well……..”.

A candle-light ceremony is a symbol of sorrow, respect, and hope – for an effective response to the issues which create victims of crime. And poor attendance would indicate that perhaps we as a people, are not caring enough to step outside our comfort zones, and honour those fallen.

I do believe however, we are caring – but what do we care about? And do we have the conviction and courage to defend what we should care about, – at least our lives? Or is that we have no expectation of a better tomorrow, because we know we put into positions of power, persons who are no more than a reflection our own weaknesses, and when tested, not able to rise above them.

And so I would like to offer an answer to the last haunting question you raise: “Now, I wonder who will speak clearly if something happens to me?”

The answer in a democratic society, is that the judicial system should speak clearly for you. You have a right to the safety of your person and property. Failing that, a right to a complete police investigation, and a competent prosecution of any alleged crime against you, before an impartial judge, and a jury of your peers.

You have right to a verdict, or order of the court, in accordance with the evidence given and the law that applies, within a reasonable time. You have a right to have that judgement or order signed by the Judge who made it, and enforced by the appropriate authorities. That is what our Constitution and laws guarantee you, as a person within this jurisdiction.

But if I am understanding your point, it is that “silence gives consent… and lawlessness prevails with impunity.” Your point is well taken, and impunity is the crux of the issue. Take for example, the following case.

A 42 year old man, dies unexpectedly in hospital. Five years later, a Coroner’s inquest is held to determine the circumstances of his death. The verdict states the man died of natural causes, with a substantial contribution of gross neglect by the medical staff of that hospital.

A doctor offended by that verdict, sues the Coroner in his official capacity, and applies to the Supreme Court for Judicial Review -( a form of appeal, if you will.) The Coroner is represented by the Attorney General’s Office. The Judge makes an order that the verdict of the Coroner’s Court is quashed, a new inquest must be held, and the doctor be paid his legal costs.

A year later, it appears the judge has not signed the order he made. It also appears that the officials concerned take the position that it cannot be enforced until it is signed by the Judge.

One can only speculate, why no action, which can be taken, has not been taken, by either party to the proceedings (the doctor or the Attorney General’s office), to have the order signed. The net result at this point, is that the doctor is not paid his costs, ( from the Judicial Budget) and there is no date for the deceased’s inquest.

Now, there is a principle in law, that the court does not act in vain. But in this case, it would appear that the doctor’s application has resulted in a nullity – ie nothing happens, because there is no signed order. No costs are paid, no inquest held, no verdict quashed. Does it also mean then, that the “offending” verdict stands, and still speaks to the circumstances in which the deceased came by his death?

In another matter concerned with the same man’s death, one of the doctors concerned obtained an ex-parte injunction against the Medical Council. This injunction prevents the Medical Council from investigating the complaint of improper conduct as against him.

Again, the Attorney General’s office is a party to that matter, and represents the Medical Council. The judge has ordered that injunction against the Medical Council to remain in place until there is a hearing. But again it appears that neither counsel for the doctor, nor the AG’s office has obtained a date for a hearing of the doctor’s claim against the Medical Council.

With no hearing date, and thus no determination of the claim against the Medical Council, the injunction could remain in place indefinitely. This situation is considered “extraordinary” in terms of how the legal system ought to work – at least in other Commonwealth jurisdictions.

And the Medical Council could continue to license, indefinitely, a doctor they are prohibited from evaluating, regardless of the outstanding complaint against that doctor. Again, “extraordinary” is the understatement that applies.

Through the inactivity by both counsel for the doctor, and the AG’s office, the doctor appears to have again secured immunity from the laws that should apply.

Is this what our government administration and judiciary intend?

This is a scenario which begs your question: “Now, I wonder who will speak clearly if something happens to me?”

Well, if our local judicial system fails, and goes “silent”, and you have the money, perseverance, and the right legal counsel, you can reach the Privy Council to speak for you. But that is not the answer that we should have to look to, as a first and last resort.

The judicial system here, supported by your contributions to the Public Treasury, should speak clearly for you. Rather than denounce your citizenship, I would urge you to continue, as you have done so eloquently, to denounce the abuse and neglect of our rights as citizens and residents of this jurisdiction, and reclaim our duty to speak for each other.

But it appears, as you rightly say, “we are the sons and daughters of silence.”

My generation and older, who are now in positions of power, are the children of an earlier unfortunate era, where we learned we could ignore wrongs, and those who are wronged. And we failed to honour the Westminster system of addressing those wrongs, for whatever extraneous reasons, or for reasons of our “safety”.

But my generation will pass away, and there’s the hope: we have now more young people educated as to their rights and obligations as citizens. Along with that, we have a free press. We have multiple media channels. We, and those of tomorrow, can be as well informed as we choose to be. And “we” can make better choices of those we elect, those holding public office, and those invited to preside on the judicial bench.

Quality governance does not mean electing those with the most degrees, the most charisma, the best political tribal support, or the biggest beer-fest election party.

We can elect those whose are qualified to govern by the nature of their convictions, their vision for the people, ability for the job, and courage to follow through.

Then Ms. Hart, you will have someone to speak clearly for you.

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