Sunday, December 17, 2017

Power and Injustice

Sunity Maharaj45

Mark Fraser

 Perhaps we flinch from history because we dare not allow truth to invade the pretty house of cards that we have constructed upon the ugly foundation of injustice on which our society was born.

As it was 200 years ago, so it is now. 

Put in the dock for the torture of 13-year-old Luisa Calderon, Governor Thomas Picton eventually escaped through a legal loophole to become a war hero immortalised in statues and street names, ironically right here in the very island of his infamy where he lives on in Picton Street, Port of Spain. His victim went on to die in poverty in her 30s. That she was tortured to force a confession was never in doubt as the court debated whether the existence of Spanish law under English governance prohibited his actions. In the end, the case fizzled and died a natural death. Picton having been found guilty remained unsentenced through successive appeals, his crime soon forgotten, his fame renewed. 

Was that the moment our cynicism was born? The day we came to know that power, put in the dock, will escape, no matter the weight of guilt, no matter the truth? That privilege operates under laws of its own within a system stacked against justice for the powerless?

The question should haunt us all as Quelly Ann Cottle and Emil Millington seek justice for their baby who died at the Mount Hope Maternity Hospital, victim of a surgical laceration so deep that it cut into his brain.

Even as accustomed as we are to the dodgy ways of those in authority, it has been stunning to witness the shenanigans in this case.

As tragic as it is, this is a straight case. A child delivered via C-section has died with the autopsy identifying as causes of death a massive blood loss due to scalp laceration and “prematurity with severe intrauterine growth retardation”. With this report in their hands, it is now for the parties involved to either challenge it or move to the next stage of negotiation or legal action. The parents must decide if they should seek justice for their child and themselves in the civil and/or criminal courts or enter negotiations for a settlement; the doctor, other members of the medical team and the hospital must determine how they intend to respond to the autopsy report, separately and/or together based on their assessment of their own and each other’s responsibility.

And yet, despite the straightforward nature of this case, the tragedy of Baby Simeon has become a political football with the Minister of Health and the Attorney General stepping way out of their crease to get into the headlines. Adding to the enveloping murkiness has been the University of the West Indies as employer of the doctor involved. What, apart from the instinct towards fraternal solidarity, could have possessed UWI to issue a public testimonial in support of the surgeon, smack in the middle of an investigation into Baby Simeon’s death?

No one has questioned the doctor’s general competence and for all we know, this medical professional might be of the highest calibre and may yet go on to a stellar career. But for now, all of this is irrelevant to the case at hand. What is important right now are the specific circumstances and actions surrounding the decision to deliver Baby Simeon and the delivery itself. With the autopsy in hand, the parents have the choice of going straight to the police and/or the civil court without reference to any internal investigation that the hospital may or may not choose to do.

Knowing the unconscionable delays involved in court processes, many will understand if the parents accept a financial settlement if offered by the hospital. But in this matter, as in so many others, the public interest would be better served by going the full distance in court. 

Although weighed down by irregularities, delays, costs and inconveniences of every kind, the judicial system is critical to seeding a culture of justice in this land where power remains free to run roughshod. We need a solid body of jurisprudence to tame power’s enduring instinct to exploit, oppress, deny and dispossess. 

Confidential settlements are undeniably convenient but they thwart the opportunity for hammering out judicial decisions and for setting legal precedent, which are important mechanisms for forcing change upon the conduct and operations of public institutions and officials, in particular.  

When their own pocket is not at stake, it is all too easy for public officials to agree to pay out of public funds to circumvent demanding investigations or to cover up their own mistakes and wrong-doing. How such settlements are recorded, accounted for and validated within a framework of accountability for public funds remains a very grey area of public life.

In the public interest, we need to create an environment that encourages and supports aggrieved citizens seeking justice from public bodies in order to set the rules for their future operations on a basis of justice and transparency. Ronnie & Caro and other bandleaders who have vowed to take the National Carnival Bands Association to court should be encouraged to go all the way in order to open up the NCBA’s operations to scrutiny by the court, to have its behaviour judged and, if found wanting, to have the extent of its damage to the plaintiffs evaluated, and to set guidelines for its future operation, assuming it survives.

To reduce the need for litigation in the future, we need to set standards for justice  now by encouraging litigation against public institutions where warranted. In this, there is an important role for the administrators of justice as there is for civic-minded attorneys. 

In terms of the public health sector we could discuss a role for civic-minded medical doctors...but we would first have to determine whether the species exists.