Sun | Aug 20, 2017

An appeal for justice

Published:Sunday | November 8, 2015 | 11:00 AMMartin Henry, Contributor
The conditions of the Santa Cruz Resident Magistrate's Court, which is located upstairs the town's police station, had been described as disgraceful and unhygienic. It was only recently refurbished.

We may well be on our way to a Jamaican final court of appeal, which could arrive through a toilet door, or, more tastefully, through a lunchroom door.

The prospects of an opposition senator voting in favour of the CCJ, to clear the two-thirds majority hurdle, were already slim. With the Malahoo Forte blowout and suspension, things look even dimmer for a switch.

Two things are certain for the future: We cannot continue with the UK Privy Council as our final court of appeal indefinitely. And, at some point, the JLP will return to power and form the Government.

Of the 54 independent states in the Commonwealth, the Privy Council is now hearing appeals from only 12. Virtually all the others have established national final appellate courts, with the notable exception of the four Caribbean states using the CCJ as a regional final court of appeal. And there has not been a single referendum to exit the Privy Council.

Assuming the CCJ bills do not survive in a partisan-divided Senate, the JLP, back in power, can call its referendum on a final appellate court. Exit from the Privy Council will, by then, be a foregone conclusion, leaving the options of a Caribbean court or a Jamaican court.

The majority of the electorate will be torn between suspicions of the Caribbean integration project, as they have always been, and suspicions over the quality of home justice. But in the end, national pride and rugged independence will win and the vote will come down to a national final appellate court joining Australia, Canada, Grenada, Guyana, Hong Kong, India, New Zealand, Pakistan, Singapore, South Africa, and more than three dozen other former British colonies with a national final appellate court.

And Senator Marlene Malahoo-Forte's toilet, or lunchroom, break would have played no small part in the entire affair, which could drag on for another 11 years.

 

dragged-out fight

But a final appeal court, whatever it is, has very little to do with the availability of justice to the vast majority of the Jamaican people. I hold no particular brief for the Privy Council, the CCJ, or even for the Jamaican final court of appeal. The CCJ is a pragmatic option, not a necessity. We are halfway in and already heavily committed. And for these reasons, my organisation, National Integrity Action, has given some support in favour of the passing of the CCJ bills.

But the dragged-out fight over a final court of appeal is nothing but a distraction from the real problem of the grave injustices of the justice system that the Jamaican people have had to put up with for so long. My concern has always been justice through the resident magistrate's courts and the lower levels of the system. For last year, I can find on the website of the Privy Council only four decided cases for Jamaica and just five so far this year. Even if that number were to be increased hundredfold with the CCJ, that's not where justice lies.

In our present Court of Appeal, from which cases are referred to the JCPC, only 155 new appeals were filed in 2013, according to the Economic and Social Survey of Jamaica. But, hear this, 1,366 appeals had been carried forward from previous years. A total caseload of 1,521 appeals. Disposal of new cases filed: six! Disposal of pending cases: 69! Total cases disposed, 75! Backlog: all the rest! There is a crisis of justice in the Court of Appeal.

But compared to these 1,521 appeal cases, 561,819 cases were listed for hearing in the RM courts! More than half a million cases!

Only 42 per cent of criminal cases were disposed and 69.1 per cent of civil cases. Overall, 46.2 per cent of cases disposed. There is a mega-crisis of justice in the RM courts, the only place where most Jamaicans entangled with the law will meet courtroom justice.

There are hundreds of accused citizens, mostly young men, languishing in jail long term without trial or having to make multiple court appearances without their cases being actually tried.

The majority of murder suspects, to use the most serious crime as a benchmark, are not even apprehended. With 1,200 murders in 2013, the clear-up rate was only 493 (41 per cent). For all serious and violent crimes, the rate was 47.3 per cent. Less than half. Suppose all those cases should come to court?

The judges are complaining about conditions - but mostly behind closed doors. Madam Chief Justice Zaila McCalla has been diplomatically - and far too quietly - raising the problems of the justice system at the level of the courts.

 

submit a budget

I have 'listened' in on one conversation among resident magistrates from across the parishes. Budgets are slashed at Finance, they complain. "Each year we are asked to submit a budget to the Ministry of Finance. We put these needs together under five headings. Under each of these, we have to submit staff costs, goods and services, utilities, rent, etc. We submit these, and invariably, the ministry slashes what we ask for ... . Each month we get a warrant. However, this may not bear a direct monthly 1/12th relationship with the budget. In the warrant, there are funds for all the line items. In June, our warrant only included salaries and travelling. This created a problem in almost every court in terms of poor air conditioning, etc.

Courthouses in Falmouth, Mandeville, and Spanish Town and many other places are falling apart. "In relation to Falmouth, what is the status of the courthouse? Who owns it? Is it the parish council's building or the Ministry of Justice's? This also affects simple matters such as parking. This dispute has existed for years, and in relation to other courts as well.

"Something has to be done as it can't continue in this way. Some resolution has to be found, and it begins with finding out who are the true owners of the building."

Heat. Wasps. Rats. Falling material. Broken windows. Noise. Garbage odour. Flies. Lack of water in the courts. "The other day I was in my chambers and the window swing back and hit me in my head. Even in court today, the accused had to be constantly looking up on the fan because it was shaking and seemed as if was going to fall down."

Unpaid mileage. "Some persons outlined that they have not received their mileage claims from as far back as November 2013 ... for over a year."

But "magistrates are to take into consideration that CMS [Court Management System] does not have any funds. CMS owes their suppliers, and that's part of why we are having a hard time getting service providers to fix the air conditioning units and other things ... . The administration does not have any respect for us."

Our justice problem, fellow Jamaicans, is not the final court of appeal. And I see no great problem of justice with only a two-tiered system, not three: First trial and one appeal. Many countries have that. Our critical justice problem is what happens, or does not happen, in the first-stage courts and the lock-ups. In these awful places, some of the most fundamental principles of justice such as habeas corpus, the right to be taken to court forthwith for a speedy trial, are daily denied.

- Martin Henry is a university administrator. Email feedback to columns@gleanerjm.com and medhen@gmail.com.