By Raffique Shah
January 25, 2014
In my column last week, in recounting the legal encounters between the late Karl Hudson-Phillips and the progressive forces during the events of 1970, I made a serious omission that I now seek to rectify.
I mentioned the condonation pleas that set the mutinous soldiers free—their genesis and the attorneys who successfully pursued them. Readers need note that the court martial over which Nigeria’s Col Theophilus Danjuma presided, rejected the pleas (in bar of trial), which were made by Rex Lassalle, Maurice Noray and myself. The trial proceeded, and most of the soldiers were found guilty of mutiny and other offences, and sentenced to varying terms of imprisonment.
The three of us who had pleaded condonation appealed, on grounds that our pleas had been unfairly treated by the court. The judges who sat on the appeal were acting Chief Justice Clement Phillips, and Aubrey Fraser and Telford Georges, who, at the time, were three of the most eminent jurists in the country.
The appeal lasted several weeks and they reserved judgement, which they delivered sometime in early 1972. They unanimously ruled in our favour, quashing the convictions and sentences. Now, I hasten to add that these judges did not agree with or condone our actions. To the contrary, they were heavily critical of the mutiny and the mutineers.
Fraser said, “It is perhaps the acme of irony that the two men who brazenly proclaimed themselves to be the leaders of a mutiny and whose plans and purposes were aimed at disruptive and dangerous courses should escape punishment for their actions…
“…(but) the hearing of the plea of condonation was not fair…the principles of natural justice were cast aside for no apparent reason…Where there is a substantial miscarriage of justice the Act demands that the conviction be quashed…the Constitution of this country recognises that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and for the rule of law…
“…As a judge of this court, I am duty bound to uphold the rule of law at all times….”
I quote extensively from Fraser’s judgment—and he reflected the views of Phillips and Georges—to illustrate the mettle of the jurists of that era, most of whom could be adjudged legal luminaries. These men were fiercely independent, aloof of the political directorate.
In fact, I need add that in this case, the political directorate had opened the door for the mutineers to walk free because its agents had allowed the court martial to ride roughshod over procedures, to abandon the rule of law and principles of natural justice. So bent were they on retribution, they unwittingly allowed us to access the only escape hatch available.
I mentioned last week that when the state’s appeal came before the Privy Council, the Law Lords dismissed it almost summarily. Celebrated English QC John Platts-Mills appeared on our behalf pro bono (with Frank Solomon, I believe). Before he could address the Council, they ruled against the state.
There was a sequel to this. Dr Eric Williams neither forgave nor forgot Justices Phillips, Fraser and Georges for what he probably saw as their role in freeing the mutineers. At the time of the appeal, Phillips, who was acting CJ (for Sir Arthur McShine), was seen as the person who would be elevated to the highest office to succeed McShine.
That would not happen. He was by-passed and the more pliant Isaac Hyatali was appointed CJ in 1972, mere months after the Appeal Court’s ruling. Phillips, an outstanding scholar and jurist, would die a broken man. Fraser, too, would leave the Bench to head the Law School at Mona. In 1988, he died under mysterious circumstances in Jamaica. Three family members were charged with his murder, but they were eventually acquitted.
And Georges, a brilliant Dominican scholar who won an Island Scholarship at age 17, and who had served with distinction in several Commonwealth countries, was never confirmed in the Appeal Court here. He soon quit and went on to hold several prominent positions elsewhere in the Caribbean until his passing in Belize in 2005.
I think it would have been an injustice on my part to have excluded these three jurists from the 1970 equation, not because they were instrumental in setting my colleagues and me free. They represented the independence of the judiciary, something we tend to take for granted, and which we would miss if ever it is compromised by the stature and the integrity of those appointed to the Bench, or by fiat from an executive bent on interference.
I feel heartened when I see judges exercise their independence in issues that are critical to citizens not surrendering their fundamental rights and freedoms. Recently, one judge declared a piece of legislation passed in Parliament as contravening certain rights (that matter is still before the courts).
And with the so-called Bail Bill, while we all want to see criminals locked up and the keys thrown away, we need to be very careful we do not throw away our rights in the process.