Solicitor General Urges Court To Uphold Ruling To Bar Public Defender From Gay Rights Case

As the tussle continues in the pending constitutional challenge to the Buggery Law a new development occurred earlier today, thanks to the Gleaner for the update.

Solicitor General Urges Court To Uphold Ruling To Bar Public Defender From Gay Rights Case

Public Defender Arlene Harrison Henry (in photo) is appealing Justice Kissock Laing's July 2016 decision not to allow her to join the case in which a gay man is claiming the buggery law infringes on his constitutional right to equality before the law.

from the Gleaner

Solicitor General Nicole Foster-Pusey has urged the Court of Appeal to uphold a lower court's ruling barring the Public Defender from joining a gay rights case saying the office has no business in a court. If I can recall she was also involved in the Tomlinso vs TVJ & CVM TV over the gay ad/PSA case some years ago.

also see:
Tolerance Ad case the Final Day – Tomlinson v TVJ, CVM and PBCJ

Tolerance Ad case Day 3 – Tomlinson v TVJ, CVM and PBCJ 

Supreme Court throws out LGBT rights activist's case against 3 TV stations

She made the argument this morning on day two of the hearing of an appeal brought by Public Defender Arlene Harrison Henry.

She's appealing Justice Kissock Laing's July 2016 decision not to allow her to join the case in which a gay man is claiming the buggery law infringes on his constitutional right to equality before the law.

Foster-Pusey argued that there's no provision in the Public Defender Interim Act to support the office participating in a court case.

She said it does not matter whether the Public Defender will take a side or be neutral.

The Solicitor General argued that the law only allows the Public Defender to facilitate a complainant getting legal representation to take their matter to the court.

The Public Defender has argued that the law establishing her office makes it clear that she has a duty to protect and enforce the rights of all citizens.

Lord Anthony Gifford who is representing her has also rejected the argument from the Solicitor General that the Public Defender's role is limited to investigations

The Solicitor General is representing the Attorney General who opposes the Public Defender joining as an interested party in the case brought by Maurice Tomlinson.

A panel of three judges headed by Appeal Court President Justice Dennis Morrison is hearing the case.

More anon

Peace & tolerance

H

Why Box Ourselves In? - Judge Questions Fight Against Public Defender Joining Gay Rights Case

The Gleaner in reporting the constitutional challenge matter and the attempt of the Public Defender to join the case carried the piece below.

Court of Appeal President, Justice Dennis Morrison, has questioned whether a court should "box" itself into the "rigidity" of procedures and miss potentially useful contributions in a gay man's challenge to Jamaica's buggery law.

The top judge said that he was "grappling" with that "difficulty" yesterday as a lawyer for the attorney general insisted that the Office of the Public Defender does not have a legal basis on which to join the case.

Morrison and two others - Justices Marva McDonald Bishop and Frank Williams - are hearing submissions.

The Public Defender, Arlene Harrison Henry, wants the Court of Appeal to overturn a July 2016 Supreme Court decision blocking her from joining, as an "interested party", the case brought by Maurice Tomlinson, who is claiming that the buggery law breaches his constitutional rights.

Lord Anthony Gifford, who is representing the public defender, argued that unlike other human-rights related agencies created by Parliament, the law establishing the Office of the Public Defender says that the office is for the protection and enforcement of citizens' rights.

OFFICE NOT LIMITED

As a result, he said that the office is not limited to just investigations, noting that the 2000 law, which gave effect to that expanded role, was a departure from the office's predecessor, which was established by a now repealed act of 1978.

He said that although the issue is unpopular, the public defender's intervention would assist her "to protect the rights of a class of citizens whose rights will be impacted by the outcome of the case".

However, Solicitor General Nicole Foster-Pusey, who is representing the attorney general, insisted that Justice Kissock Laing was correct in refusing to allow the public defender in the case.

She said that the office has not said whether it has received a complaint that would fall within its remit, in addition to the fact that Tomlinson is not saying his rights have been breached by a state agency.

According to Foster-Pusey, who will end her submissions today, the public defender is pushing to join the case "on her own motion", as her actions are not supported by the law.

AGAINST A LAW OF PARLIAMENT

Justice McDonald Bishop noted that Tomlinson's challenge is against a law of Parliament and asked if the Office of the Public Defender was also interested in such a case, to which Gifford said yes.

In her submissions, Shawn Wilkinson, Tomlinson's attorney, told the court that the public defender is the main person entrusted with powers to protect the rights of "all" Jamaicans and then asked, "if not the public defender, then who" would be more interested in joining the case?

In his 2016 ruling, Justice Laing argued that "the public defender's submissions to the court would be of little assistance if they were neutral. If they are not going to be neutral, which position would the public defender take?

"The obvious danger is that regardless of the side that the public defender chooses, she runs the risk of losing the trust of, or worse, completely alienating, the other side," he said, noting that the gay issue was "nationally divisive".

Laing allowed several church and non-governmental organisations to join the case.

The actual case brought by Tomlinson is yet to be heard.

Peace & tolerance

H

also see:

Public Defender Attempts To Rejoin The Constitutional Buggery Law Challenge

Public Defender Attempts To Rejoin The Constitutional Buggery Law Challenge

The battle by the Office of the Public Defender to join a court case in which a gay rights activist is challenging Jamaica's anti-sodomy law is to be heard in the Court of Appeal this morning.

The panel of three judges will hear submissions from the lawyers for the Public Defender Arlene Harrison Henry.

Mrs Harrison Henry wants the Appeal Court to overturn a decision of a Supreme Court judge blocking her from joining as an interested party in the lawsuit brought by Maurice Tomlinson.

also see: Attorney General moves to strike out Public Defender appeal in Buggery Law case 

or READ: Public defender shut out of buggery law 

case (Gleaner) 

The Public Defender sought to join the case claiming her office was created for the purpose of protecting and enforcing the rights of all citizens.

That application was denied by the Supreme Court.

The Court said the Public Defender was attempting to insert herself in a nationally divisive issue and could lose the confidence of many Jamaicans if allowed to do so.

It also ruled that her neutrality would also make her contribution of little assistance.

Last month lawyers representing the Public Defender filed a motion appealing the decision.

The appeal dated the 13th of July says the learned judge acted unreasonably by denying the applicant’s request.

But the Attorney General is moving to have that appeal struck out.

Lawyers representing the AG’s Department filed a motion arguing that the rules of the Court of Appeal require an applicant to first seek permission in writing when filing an appeal.

They argue that since this was not done there’s no proper appeal before the court.

The AG is also arguing that the notice of appeal filed by the Public Defender on July 13 is not valid and should be struck out.

or 

Public Defender appeals block from Buggery Constitutional Challenge

Tomlinson had filed a constitutional motion against the Attorney General saying the buggery law amounts to a direct and blatant denial of equality before the law for him and other gay men.

In her application to join the case as an interested party, the Public Defender argued that her office was created for the purpose of protecting and enforcing the rights of citizens.

However, Justice Kissock Laing turned down the application stating that the Public Defender was seeking to insert herself into the centre of a nationally divisive issue and could lose the confidence of many Jamaicans if allowed to join the case.

Peace & tolerance

H

also see related court matters:

CCJ Reserves Judgement In Maurice Tomlinson Immigration Case .... 2015

Supreme Court throws out LGBT rights activist's case against 3 TV stations

Public Defender appeals block from Buggery Constitutional Challenge

The Public Defender has filed an appeal challenging the decision of the Supreme Court to bar her from joining as an interested party in the law suit brought by gay rights activist and attorney-at-law, Maurice Tomlinson reported the Gleaner.

Tomlinson now has a matter in court challenging Jamaica’s buggery law.

He had filed a constitutional motion against the Attorney General seeking to have the anti-sodomy law nullified in all cases of adult consensual sex.

Tomlinson is also claiming that criminalising homosexuality amounts to a direct and blatant denial of equality before the law for him and other gay men.

In her application to join the case as an interested party, the Public Defender Arlene Harrison Henry argued that her office was created for the purpose of protecting and enforcing the rights of citizens.

However, Justice Kissock Laing turned down the application stating that the Public Defender was seeking to insert herself into the centre of a nationally divisive issue and could lose the confidence of many Jamaicans if allowed to join the case.

However, in her appeal, the Public Defender is contending that the judge erred in making his decision.

Among the grounds of appeal, the public defender is arguing that the judge failed to sufficiently apply the interest test to her office as was applied to the five other groups who sought to join the case.

Religious groups have joined the lawsuit as interested parties and are asking the court to reject Tomlinson’s constitutional motion.

The public defender is also contending that the judge’s decision has the effect of restricting the statutory remit of her office to protect and enforce the rights of citizens.

meanwhile on Sunday another attorney and former Acting Public Defender Matondo Mukulu had a thing or two to say via the Gleaner also:

If you ask reasonably informed citizens which public institution in their view is the guardian of the Jamaican Constitution, I would not be surprised if the Office of the Public Defender does figure among the list.

Unfortunately, the Jamaican Supreme Court, in a rather bizarre decision [Maurice Tomlinson v Attorney General [2016] JMSC Civ 119], took the view that the public defender, in effect, has no role/sufficient interest in a case in which a citizen asserts that Section 79 of the Offences Against the Person Act (OAPA) encroaches on his rights outlined at Section 13 of the Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act 2011.

On the other hand, the court, in its decision, took the view that the Jamaica Coalition for a Healthy Society (JCHS), the Lawyers' Christian Fellowship (LCF), and another group collectively referred to as the churches, were taken by the court to have sufficient interest in the case. In effect, these unelected religious bodies will be allowed to make representations in this case, as to why they say the buggery law should be allowed to stand, even if it does not affect their right to practise their Christian religion or to have a belief of their own choosing.

CIVIL PROCEDURE RULES

 

Quite briefly, the Civil Procedure Rules (CPR) is a body of rules that sets out the procedures that must be followed by the court when it is dealing with a civil matter. In Mr Tomlinson's case, as he was inviting the court to make a declaration that a piece of law passed by the Jamaican Parliament breached his constitutional rights, the court had to be guided by the provisions of Rule 56.

The JCHS, the public defender, LCF, etc. were not named or served by Mr Tomlinson with his claim, and thus had to make an application in which they said that they had sufficient interest in this case, pursuant to Rule 56.13, to permit them to participate. Accordingly, permission to persons or groups to intervene in cases of public importance is usually regarded as healthy, as such bodies bring expertise that can assist the court.

Rule 56.13 of the CPR does not define or offer any guidance to the court on the meaning of sufficient interest. As such, the court in Jamaica, over the years, has obtained guidance on the meaning of that term by reading CPR Rule 56.2, which sets out a guide on the meaning of sufficient interest in judicial review application, which is a separate type of application than the constitutional application that is being pursued by Mr Tomlinson.

Of the most notable factors are (a) any statutory body where the subject matter falls within its statutory remit; (b) any body of group that can show that the matter is of public interest and that the body ... possess expertise in the subject matter of the application.

Our courts, in judicial reviews, have consistently emphasised that sufficient interest should not be granted to persons who are deemed busybodies.

In reading the Supreme Court's lengthy but insufficiently reasoned decision, it deploys a series of 'reasons' as to why the religious collective should be granted standing. It would appear that it focused attention on the asserted 'expertise' that the collective would bring to the case. In establishing their claimed expertise, the JCHS contended that it had organised a series of conferences in which the issue of the retention of the buggery law was explored.

NO OPPOSITION

 

The attorney general, as primary defendant to the claim, did not oppose these anaemic arguments. However, if I had been in court, I would have been the busybody who would have made it clear that these bodies offer no expertise to the question of whether a person's right to either equal treatment or his right to privacy was infringed.

These groups follow a Judaeo-Christian theology, and are natural opponents of Mr Tomlinson's application. The participation in a few interviews or workshops does not give them any relevant expertise. It is for this reason why we should be disappointed that the attorney general was not bold enough to actually oppose their participation. In fact, this case tells us that there is a need on the part of the Supreme Court's Rules Committee to devise clear guidance in respect of the meaning of sufficient interest. A test that requires proof of 'wide public interest' will preclude the busybodies and it will ensure that a more robust test is applied by the court.

Turning to the court's reasons for denying the public defender's application, we must first appreciate that the court has a wide discretion to allow persons/groups to intervene. In dismissing the public defender's application, the court, relying on the fact that the public defender is a creature of statute and shamelessly supported by the attorney general, took the view that Section 13 of the Public Defender (Interim) Act provides that the only action available to the public defender is that of an investigation after receiving a complaint.

However, while the thrust of the court's interpretation of Section 13 is correct, I note a flaw that undermines the decision. In the first instance, it is wrong to say that the public defender cannot investigate a matter unless it gets a complaint, as during my time at the office, I dealt with files where the public defender initiated investigations where he had received no complaint from a specific member of the public. Such a proactive approach helps to promote the legislative intent in the creation of the Office of the Public Defender.

The flawed nature of the court's decision is to be found in the fact that Section 4 of the Public Defender (Interim) Act does provide that the Office of the Public Defender was created "for the purpose of protecting and enforcing the rights of citizens ... ." This section was ignored by the attorney general, and one wonders why it is that the court was never invited either to read into Section 4 of the act an implied provision permitting the public defender to intervene, or to consider that the public defender is permitted to bring or to join an application in which it is said that a right under the Constitution is being infringed.

The court, in effect, was of the view that by intervening in such a matter, the public defender will "run the risk of ... losing the trust of, or worse, completely alienating, the other side. The public confidence in the office may also be further negatively affected ... ." The fear of alienating (inevitable in such cases) a section of the Jamaican public, because she supports a challenge to a law that some citizens regard as unconstitutional, can never be a reason why the public defender should demur from pursuing a constitutional claim. The court abrogated its responsibility to those men and women in Jamaica who look to the public defender, guardian of the Constitution, to assist in vindicating their rights.

The attorney general's expressed support of a purely religious intervener, in a case that has nothing to do with a religious right, while excluding the parliamentary appointed guardian of the Constitution, is worrying. Where a prospective citizen applicant lacks the resources to advance a constitutional claim, does it mean that the sole guardian of our constitutional rights will now be reduced to a spectator, hoping for a complaint?

Email  matondo_mukulu@yahoo.co.uk.

Public Defender pleased with diversity training for police

Speaking at the Jamaica Constabulary Force diversity training workshop aka COMET, Community Empowerment Transformation Project (COMET II) at the Jewels Resort in Runaway Bay today Public Defender Arlene Harrison Henry commented on some concerns she has on the interactions between police and marginalized groups. She said it is timely for the force to participate in such activity and to reinforce policies that already exist.

She stressed that continuous training is required to remind individuals in varying professions for the need to maintain professionalism especially with marginalised groups.

"I regard this program and this training to provide greater sensitization of the police to the diversity of the Jamaican population and it includes a broad group of persons; to include women whose rights particularly in relation to matters of domestic violence over time we see the police being more engaged in matters of that nature and not merely treating it as a family matter." she said. 

"This training can only inure to improve services offered by the Jamaican Constabulary Force to the citizens of Jamaica," Ms Henry added sadly our same gender women in some recent cases cannot say that and as per usual launched initiatives, campaigns and trainings happen but implementation, continuation and monitoring has always been a challenge.

In as far as clash of rights from an LGBT standpoint where one journalist from NNN asked Ms Henry if some groups rights will supersede others, Miss Henry answered "I don't think it (LBGT populations) enjoys the rights that it ought to enjoy .........." she continued that there is continuous logging and recording of reports from various groups but she stressed the police has a duty under law to treat all citizens with dignity. She said that the Charter of Rights speaks to all persons owning their own rights and to preserve it for their families and future generations.

Some rights are absolute such the right to freedom or protection from torture when in police custody there is an absolute prohibition on any acts of torture while in the hands of the state.

She does not see a clash given the level of awareness and to guard such rights as applicable. "I come from a place that says that there is no room for discrimination, one against the other; we know that there are minority groups in Jamaica who may have a particular point of view; they have an entitlement to operate within that sphere."

She continued "That does not deny us our national identity; in other words by and large we are a heterosexual population but we must have respect for those who are not ..... it's a matter of engagement using set standards and principles that the state that we occupy on this island is shared in a way that each one is comfortable with the other; with mutual respect and dignity to all groups."

Ms Henry also spoke on camera on the matter:

The USAID COMET II workshop is in aid of supporting community based policing, sensitizing the force on issues to do with women & girls, people living with disabilities and members of the LGBT community. The workshop will run for four days June 12 -13 and again on 19 -20 all at the Jewel Paradise Cove Resort & Spa St Ann.

 Arlene Harrison Henry reviving the instruments of office from the Governor General January 16 becoming the first female to head the office

Ms Henry raised the following at the training sessions:

Earlier in May USAID announced the activity:

The United States Agency for International Development (USAID) is providing $330 million (US$3 million) in grant assistance to support targeted community activities under phase two of its Community Empowerment and Transformation Project (COMET II).

The Small Grants Program will provide direct funding support to community groups, faith-based organisations, non-governmental organisations (NGOs), and civil society organisations, to assist in strengthening local governance structures, and improving safety and security, particularly in volatile and vulnerable areas.

Provisions are also being earmarked to support the implementation of climate change adaptation activities, with focus on reducing the risk of disasters occurring, due to extreme weather patterns.

Three initial grants have been earmarked for allocation under the program. The first is $2.7 million to administer programs for “at risk” young people. The other two total just over $17.9 million to undertake youth and sports, skills trade, and vocational training programs.

While focus will be placed on providing support to the 25 communities where COMET II is being implemented, the small grants program will also be open for wider stakeholder participation, input, and benefit.

COMET II is $1.4 billion (US$13 million) community intervention initiative which USAID is implementing in the 25 communities across five parishes over the next five years, in partnership with the Government of Jamaica.

It is a continuation of work carried out under the program’s initial phase, between 2006 and 2013, in the 25 communities. These are among 100 communities targeted by the Planning Institute of Jamaica (PIOJ) for social interventions, under its Community Renewal Programme (CRP).

COMET’s overall aim supports the Government’s objectives and key aspects of the country’s Vision 2030 Jamaica National Development Plan, which seeks to position the island to achieve developed country status within 16 years and, in the process, making it the place of choice to live, work, raise families, and do business.

The COMET II Small Grants Program was formally launched by USAID Mission Director in Jamaica, Denise Herbol, during a ceremony. The occasion was also used to stage a climate change sensitisation session for participants attending the event, most of whom were from COMET II beneficiary communities.

In her remarks, Ms. Herbol said these engagements were “all about working with our communities and helping people.”

She noted that the extent of the USAID’s activities in Jamaica, over a number of years, has seen the agency establish a track record for promoting community safety and security; widening access to quality basic education; and increasing the resilience of targeted sectors, to climate change.

The Mission Director assured that under the USAID’s latest initiatives, “our emphasis remains an integrated approach to creating opportunities for secure livelihoods through a more cohesive, just, and healthy environment.”

In his remarks, Programme Director for the Planning Institute of Jamaica’s Community Renewal Programme (CRP), Charles Clayton, highlighted the importance of the COMET programme, particularly in complementing and assisting to advance work carried out under the CRP.

“The Community Renewal Programme is built on…partnerships…people working together in a coordinated way to bring about transformation in the (targeted) communities,” he stated.

Mr. Clayton pointed out that the COMET II programme focuses on such as security and safety, economic transformation, and the environment and climate change, offering, “(the) bridge that we all need…to re-unite our communities…and… make the changes that we need to see in our communities, to make a better Jamaica”.

Director of Governance at the Social Development Commission (SDC), Sherine Francis, said the COMET II grant programme and climate change sensitisation “signifies another important event towards advancing community development and building resilient communities.”

ENDS

Reminder of the Police's Diversity Policy

The Jamaica Constabulary Force believes that all citizens of Jamaica and visitors to its shores have a right to be treated with dignity and respect irrespective of who they are or the particular grouping to which they belong; through the Jamaica Constabulary Force policy on diversity the organization has strived to ensure fair treatment of all in its service delivery.

It is the policy of the Jamaica Constabulary Force that all reports from any individual or group be handled in a manner which reflects the highest level of professionalism in respects to human rights and dignity, this should be done with a view to portraying a professional image of the police and enhancing positive relationships between the wider community and the police service.

ENDS

Ms Henry has batted before at the crease several times prior to assuming the Public Defender's office leadership, one such memorable moment was with the now charged for perverting the course of justice one Reverend Al Miller:

and 

RJR's Beyond the Headlines host Dionne Jackson Miller had Arlene Harrison Henry on Human Rights Day 2012 on the the removal of language in the form of sexual orientation on the Summary Executions UN Resolution - On November 21, 2012, Jamaica voted against resolution A/C.3/67/L.36 at the United Nations condemning extra-judicial, summary or arbitrary executions which urges States “to investigate promptly and thoroughly all killings, including… all killings committed for any discriminatory reason, including sexual orientation.

Hope that the trickle down effect from this and what appears to be future training sessions will be evidenced in real terms during the police precinct customer service engagement and subsequent follow-up where required.

Peace and tolerance

UPDATE June 22

RUNAWAY BAY, St Ann -- With two weekends of training seminars completed, members of the Jamaica Constabulary Force (JCF) are expected to be more aware of the diverse groups in society and to better understand the safety and security issues facing them.

Fifty members of the JCF underwent two-day diversity training sessions at the Jewel Paradise Cove in St Ann over two weekends. Twenty-five members were trained in the first session with another 25 completed the training sessions yesterday.

The training sessions, which were held in partnership between the JCF and the USAID/COMET II project, saw the law enforcers being made aware of how to deal with vulnerable groups in carrying out their duties. The areas of focus were women and girls, people living with disabilities, marginalised youth and the Lesbian Gay Bisexual and Transgender (LGBT) community.

Guest speaker at the opening ceremony on Friday, June 12, Public Defender Arlene Harrison Henry, commended the JCF for the creation and implementation of its diversity policy. She also praised the USAID for working with the JCF to host the training sessions.

"One size does not necessarily fit all," she pointed out, insisting that every Jamaican had her own expectations and deserves equal treatment, and so the policy was a positive step in that direction.

Harrison Henry said that the Jamaican legal framework has been slow to recognise the increasing diversity in the population. She called on participants in the training seminars to make use of the training which will enhance their professional and technical skills and which allow them to carry out their duties conscientiously.

"As public servants, sometimes we have to stop and reflect on who is the public that we serve," she said.

She reminded the police that to serve and to protect was not only a moral duty but also a legal one.

Assistant Commissioner of Police Dr Gary Welsh said the training is not only for the Community Safety and security Branch but for the entire JCF. However, focus is placed on members of the Community Safety Branch (CSSB) because they interface with the public on a daily basis.

He said that the police diversity policy was rolled out in 2012.

"This training now helps to empower our officers to understand the training and how to use it as a tool in delivering service to our various groups. The persons who have been selected have been picked from all divisions across the country so that when they go back they will be the trainers," Bishop Welsh said.

Members from Respect Jamaica also participated in the sessions.

"We partnered with the USAID because we felt that this initiative is here to serve and protect and is dealing with a diverse group of Jamaicans. If they understand how to deal with each group then that will strengthen their ability to serve and protect," said Anna-Kim Robinson, programme manager of Respect Jamaica.

Donaree Muirhead, training coordinator and community policing coordinator with the USAID Comet II, encouraged members of the JCF to approach the training with open minds. She urged them to put away preconceived conceptions and be willing to share their views on situations so that they will leave the training with clarity.

She said the objectives of the training sessions included raising the awareness of the police as it pertains to the nuances of the diverse groups in society, to better understand the safety and security issues and challenges facing the diverse groups to increase the capacity of the CSSB to develop interventions that are inclusive or are specific to the needs of diverse groups, to enable the police to maintain professionalism in the discharge of duties, to treat with dignity and respect, uphold and preserve the human rights of all irrespective of who the individual is or to which group a person belongs.

The training facilitators were experienced and recognised persons who are leading voices for the diverse groups.

They included Rochelle McFee of WE Change; Taitu Heron, UN Women Jamaica Programme; Gloria Goffe, Combined Disabilities Association, and Miguel Williams, programme development Specialist at the Ministry of Youth and Culture.
H

Interim JFJ Board Has Full Authority says Barry Wade

In this April 7, 2014 photograph, Kay Osborne, executive director of JFJ, shares pleasantries with JFJ directors Alexis Goffe (right) and David Silvera. Three months later, the organisation imploded, as a criticism over a sex-ed programme triggered a spate of resignations. - Ricardo Makyn/Staff Photographer

Barry Wade, Guest Columnist

In an editorial titled 'Tell us more, Dr Wade' on August 1, 2014, The Gleaner asked me, as the newly appointed chairperson of the interim board of directors of Jamaicans for Justice (JFJ), to explain "the process by which [I] and the rest of the board were chosen, including whether those members of the board who were in place up to Wednesday resigned en bloc, paving the way for new elections".

It also stated: "It would be useful, in the circumstance, to explain if, and how, the JFJ's constitution addresses this, especially in the context of his announcement of a planned vote for a new board in three months' time after 'a nomination process and election of the paying members' of the organisation."

The following sets out the process by which the current directors of the board came to their positions and the relevant clauses in JFJ's Articles of Association governing this process.

JFJ was incorporated under the Companies Act on 15 October 1999. The Companies Act and, more specifically, its Articles of Association are the relevant governance instruments. The relevant Articles of Association are Clauses 31, 45, 48 and 49.

Clause 31 provides that the minimum number of directors shall be seven, unless otherwise determined by a general meeting of the company.

Clause 45 provides that the directors may appoint any person to be a director, either to fill a casual vacancy or as an additional director. A director appointed under this provision holds office until the next annual general meeting and he or she shall be eligible for re-election.

The quorum for directors meetings is fixed by the directors but shall, if not fixed by the directors, be three. (Clause 48).

During the course of the weeks and days leading up to the extraordinary general meeting (EGM) held on July 29, which had been called by the board at the request of members, the number of directors fell below the minimum number of three. The resignations did not take place en bloc, but rather at different points in time, all prior to the date of the EGM. Clause 49 of the Articles was invoked.

Clause 49 provides:

"The continuing directors may act notwithstanding any vacancy in their body, but, if and so long as their number is reduced below the number fixed by or pursuant to the articles of the company the necessary quorum of directors, the continuing directors or director may act for the purpose of increasing the number of directors to that number, or of summoning a general meeting of the company but for no other purpose."

In circumstances where the members of the organisation were determined to repair the damage done by recent internal and external developments and adverse publicity, and following lengthy discussions of these developments, the two remaining board members asked the members assembled at the EGM to indicate whom of their number were prepared to serve on an interim board.

The purpose was to ensure a democratic input into the decisions that only the remaining two board members could exercise under Clause 49 of JFJ's Articles of Association. The members present at the EGM indicated their preferences. The EGM was suspended and the board deliberated and made the appointments recommended by the members present at the EGM. The eight additional directors appointed brought the number of directors up to 10, above the minimum seven required for the full functioning of the board.

The board is an interim one because the provisions of Clause 45 limit the tenure of all of the members appointed by the remaining two directors till the next annual general meeting of JFJ.

The board will consider the steps to be taken over the next three months to (a) review the recent developments, (b) steady the organisation, and (c) arrange for the holding of an annual general meeting in view of the provisions of Clause 45 of the Articles of Association.

The current board is properly constituted under JFJ's Articles of Association, with the full authority to conduct the business of the organisation until the next annual general meeting, which in the normal course of events would be held in March or April next year.

However, it was the view of the membership at the EGM and the decision of the current board that it would be prudent to hold an AGM at the earliest possible date to allow for the election of a new board of directors.

Barry A. Wade, PhD, is chairperson of JFJ. Email feedback to columns@gleanerjm.com and admin@jamaicansforjustice.org.

You may also want to check out the bizarre hit that the public defender took at the entity in a recent speech HERE and other articles on the JFJ war of words 

JFJ Critics have Lost Their Soul Carol Narcisse of JCSC

Clearing Narcisse's Fog On JFJ Support