The quotation above, accredited to William Watson, is a free English translation of the original Latin, “Fiat Justicia, ruant cieli,” which is apt to a discourse on the subject of the Greater Good.
In arriving at a decision in a civil action, a Judge of the Supreme Court will consider several things, but he will give the most weight to the judicial precedents and judicial principles which may properly be applied to the case before him. Theses principles have been enunciated during the long course of establishing the British system of jurisprudence by the finest minds who have graced the bench in England. Apparently, there are no jurists of like eminence elsewhere in the Commonwealth, who have discovered any other principle worth declaring before their peers.
Sometime ago, I read the decisions by two of our Judges of the Supreme Court on a case before them for judicial review of actions taken by, in one instance, the Public Services Commission and, in the other, by the Commissioner of Police. In regard to the closely reasoned judgments of the appellant’s and respondent’s submissions, I should not comment adversely if, in my opinion, I considered them flawed, because that might properly be found to be disrespectful but, in fact, I could find nothing out of place in their reasoning.
You would think that applying their minds to the facts and the law, in all cases, would lead Judges to the correct decisions, which I believe should make sense to the ordinary person, who thinks that the end of justice is justice. If the result of the judicial process does not make sense, then something is wrong somewhere. May I suggest that there may be a higher principle than the ones which the Judges took into account in arriving at their decisions in these two instances? It may not have entered their minds that such a principle exists, and had to be found and considered, else the outcome of their judgments may lead to serious injury to the Lady of the Scales.
Let us seek this principle by considering the position of the Army High Command in war time, whose actions are regulated by the Articles of War. One of these articles declares that the High Command is empowered to impose a sentence of death on a soldier who is found asleep at his post while on sentry duty. It is reasonable to expect, bearing in mind the dire consequences of his succumbing to a desire to sleep, after long hours of loneliness, and the soporific influence of darkness and stillness, that a soldier would resist the urge as long as he is able. Sleeping at his post would have to be an involuntary act. The principles of natural justice which are in the heart of every man, would say that to impose a sentence of death in such circumstances is unjust. Is there any principle which, if applied, would justify the High Command to execute this hapless soldier? I think there is.
Now, the rationale for the imposition of such a harsh sentence on the sentry who sleeps at his post is that by failing in his duty, he imperils the lives of those who depend on him to sound a warning if they are beset while at rest. However, the likelihood that there will be an attack on the occasion that a particular sentry is asleep, is remote. Furthermore, the wise commander would arrange for checks, at intervals, on the soldiers on sentry duty. So, even though the Articles of War empower him to impose this terrible sentence, can the commander of a body of soldiers be justified in taking this action? Is there any principle which is above all other considerations that he may appeal to as a guide? I think there is.
I am sure that we are agreed that the demands of discipline in the armed forces during wartime, make it necessary to impose harsh punishment on those who disobey the commands of their superior officers. Furthermore, that the higher the level of discipline, the more effective an army is likely to be.
But in the case of the soldier who falls asleep at his post, how can he be adjudged guilty of an act warranting execution by a firing squad when there is no “mens rea”. The soldier did not reflect on his action and the consequences of it. The last thing that he would do is to put his comrades-at-arms at risk. Consider this: the ones who will have to carry out his sentence of death are his fellow soldiers, including, perhaps, his closest friends. What a terrible thing this is. The soldier did not intend any injury to his comrades and no injury has occurred, yet he is to be condemned and executed. This would seem to be a travesty. It should not happen.
How near are we to this higher principle? I think that we are agreed that the life of this soldier is of great value and should be preserved, unless there is something of greater value to be achieved by condemning him to death and executing the sentence of a court martial. Is there anything of greater value than the life of this soldier? I think there is.
What can possibly be more important to a people than the life of a member of its society, especially a man who has done no harm to anyone? The answer is obvious: The well being, safety and security of the nation itself. How important is it to maintain the highest level of discipline in the nation’s armed forces? It is of paramount importance. Therefore, the life of the soldier is a sacrifice in the interest of something of higher value. I use the word “sacrifice” deliberately, to make the point that in this instance, the life of the soldier, which is undoubtedly a Good, should be sacrificed for the Greater Good, which is the well being of the nation.
Let us now consider the two cases granted judicial review by the Court, which were in fact appeals against the decisions of inferior authorities.
I shall not go into details of the appeal against a decision of the Public Service Commission, because I am privy to information which was not submitted to the Court and, because the parties involved might be recognized. These are the bare bones of the case. A public officer who was eligible for promotion, based on his confidential reports over a period of five years, was not recommended for promotion by his head of department. The Head of Department claimed that he had reasonable grounds for suspecting that the officer was using his office for private gain. He was not promoted but, in response to a request from the H.O.D, the Commission transferred him from his post in Belize City to a work station in one of the district towns. The officer engaged the services of an attorney who applied for and was granted a judicial review by the court. The Court held that the officer should have been heard in his defence as decreed by the Natural Justice principle “audi, alteram, partem”, and, as a result of its finding declared that the Head of Department and the Public Services Commission erred, and ordered that the officer be promoted retroactively.
The H.O.D and the P.S.C. erred in not charging the officer and not allowing him to defend himself, but the fact is he was not charged and, although he had a right to defend himself, he was not entitled to promotion as a right. However, the decision of the Court rested on the solid rock of a cardinal principle in English Law. What if the Head of Department’s suspicions were well founded? Then, the decision to promote the officer would have an adverse effect on the morale of the other officers serving in the department, as well as on the integrity of the department itself. Also, the officer would be put in a position where he could do more harm. The principle of the Greater Good would say that the Court’s order should be conditional on the result of a hearing by the Public Service Commission of charges against the officer by the Head of Department, supported by the evidence which gave rise to his suspicions.
In the second case, a police officer is accused of committing acts of violence against a national of a foreign country, which injuries have been confirmed by a registered medical practitioner. At the time when the injuries were inflicted, the foreign national was a prisoner in the protective custody of the police officer and two other members of the Belize Police Department. The foreign national made a statement that he was beaten up by the police in a letter of complaint to the local branch of the Human Rights Commission, which forwarded a complaint/protest to the Government of Belize.
In response, the Ministry of Home Affairs directed that the Commissioner of Police conduct an enquiry into the matter and take the appropriate disciplinary action. This enquiry disclosed that three members of his department were present, including the accused officer who was in charge, when the prisoner was interrogated and the alleged physical assault took place. They all denied beating the prisoner or seeing anyone do so.
Faced with this situation, the Commissioner came to the obvious conclusions:
(i) The prisoner suffered the injuries while in the protective custody of the Belize Police Department.
(ii) The prisoner did not beat himself.
(iii) All or at least one of the one of the interrogating officers inflicted the injuries.
(iv) They were all present when the injuries were inflicted.
(v) All of them were culpable in some degree, but the accused was mainly responsible because he was in charge.
The Commissioner, acting within the powers given him by the Police Act, took the following steps:
(i) Dismissed the officer in charge of the group.
(ii) Imposed a lesser penalty on each of the other members of the group.
The dismissed officer appealed to the Supreme Court for a judicial review, which was granted, and the Court ruled that the Commissioner erred in not following the proper procedure. As in the first case, the Court ruled that the officer should have been formally charged with an offence and be allowed to speak in his defence, and declared that he should be reinstated in his former post.
Justice was done in accordance with the principle of Natural Justice but, great harm was done to the morale of the police and the administration of that body. It must also have reflected adversely on the relations between Belize and the country which sought to protect its national. Justice would also have been done if consideration was given to a higher principle, and if the Court’s decision was for the Commissioner to correct his error by having a proper hearing and allowing the accused officer to defend himself. I submit that such a higher principle exists.
Three years ago, a female teacher at a religious educational institution was dismissed from her post because, she became pregnant while unwed, breaking a rule of the institution which had set high moral standards for its teaching staff. A male teacher would have been dismissed for fathering a child out of wedlock but, there could be no absolute proof of this on his person whereas, there was incontrovertible proof of immoral behaviour in a female teacher’s pregnancy itself.
On the advice of her attorney, the teacher brought a suit against the religious educational institution and a Court ruled that she had been discriminated against because of her gender, contrary to the International Conventions on Human Rights to which Belize is a signatory. She was awarded a certain sum and her employer was directed to return her to her former position.
Justice was done in accord with the convention which affirmed her rights. The right not to be discriminated against is certainly a Good but, in this case, was the Greater Good considered? What about the right of the religious educational institution to make a rule seeking a desirable moral objective? What about the right of the students of this institution to good moral examples in its teachers? Those would have to be considered if a “Greater Good” principle were established.
Why should individual rights, undoubtedly a great good, supercede the well being of a community, which is a greater good? It would seem that the apparently limitless right of free speech, for example, can do great harm to a basically decent and sensible society, as in America, where the advocates of free speech, with the agreement of the jurists, have decided to allow the dissemination of prurient and salacious material on the airwaves, on the grounds that adults have a right to view whatever they choose and producers have a right to provide it. But, what about the nation’s youth who are in need of a healthy and wholesome climate in which to grow and develop into the finest citizens of which they are capable?
There has to be a limit to individual rights. They should not be allowed to get in the way of desirable national or communal objectives. In all these instances which have been recounted, a “Greater Good” principle would enjoin that, in a judicial context, when two goods are in conflict, they should be put on a balance scale and carefully and scrupulously calibrated to determine which is the Greater Good. Only in this way can true justice be administered.