Tue | Aug 22, 2017

Editorial | Time for real justice reform

Published:Sunday | September 25, 2016 | 9:00 AM

The strengths of Jamaica's judicial system are that it adheres to the principle of judicial independence, resists political interference, and is largely uncorrupt. However, the system also has serious failings, which make it one of the weakest links in the national system of law enforcement and justice.

First, the legal process is often subject to inordinate delays. The justice ministry estimated in 2013 that there was a backlog of more than 400,000 charges in the courts. There have been cases where people have remained on remand in police cells, awaiting trial for more than two years, and many cases, even homicides, take years to complete.

Second, interminable delays, in conjunction with the lack of witness protection, deter many people from giving evidence. Third, there is a widespread perception that those who are sufficiently rich and powerful are effectively above the law.

Fourth, there have been allegations of corruption, money laundering and falsifying evidence; there may not be many corrupt lawyers or court officials in Jamaica, but criminals only need one well-placed facilitator in order to escape justice.

These failings have undermined respect for the law and confidence in the justice system.

These problems are well known. What is perhaps less well known is that most of these problems could be resolved relatively quickly. There are countries that had similar problems but, unlike Jamaica, dealt with them decisively.

Colombia's justice system was in a similar position in 2000, but the government drove through a set of comprehensive legal reforms. First, it created 85 centres for mediating disputes and another 14 courts, which gave nearly half a million more people access to the justice system. Judges received additional training and were subjected to proper evaluation of their performance. The systems of court management were strengthened, with a new focus on efficiency, performance and speed, and unnecessary paperwork was eliminated. These reforms reduced average case-processing times from more than two years to a couple of months, so cases that used to drag out over years could be streamlined into a single court hearing.

 

Pioneering

 

The results were remarkable. The time needed for a criminal case was reduced by 80 per cent, productivity increased by an average of 389 cases per judge per year, the backlog was reduced by more than a million cases, the conviction rate for homicide increased from three per cent to 60 per cent, and the efficiency gains generated savings of US$92,000 per court per year.

With regard to corruption, the pioneering example was introduced by Italy more than 30 years ago. Italy fought the Mafia for decades, but made little progress until the government changed the law to allow the seizure of assets from both criminals and the facilitators of crime. The 1982 Rognoni-La Torre law (Article 416-bis of the Italian Penal Code) introduced the crime of Mafia conspiracy, and gave the courts the power to seize the assets of anyone belonging to the Mafia conspiracy, which included the corrupt police officers, politicians and lawyers who protected the dons. Since then, the police have seized more than US$50 billion from the Mafia, and have finally started to break their power as a result.

These examples show that a few, well-targeted legal reforms can transform the system of justice.

A similar programme of reform in Jamaica should include instituting stronger court management systems, the introduction of clear guidelines for sentencing and for granting adjournments, and the dismissal of incompetent judges. Members of the judiciary should be given additional training in proceeds of crime and asset forfeiture and anti-corruption legislation, and we should follow Italy's example by making the facilitation of organised crime a serious criminal offence, so that a lawyer, banker or accountant that assists clients to conceal their assets or launder the proceeds of crime may also have their assets seized. We should also follow the USA in imposing denial of tainted assets during trial, so that criminals cannot pay their legal fees with the proceeds of crime.

Sadly, the legal establishment in Jamaica is not known for its energetic pursuit of reforms. So we may have to wait until the Government finds the resolve to act, or until the people demand a system that can deliver justice impartially, swiftly, effectively and economically.