Thu | Dec 12, 2019

The Next 50 years - A cry for justice

Published:Sunday | November 25, 2012 | 12:00 AM
President of the Jamaican Bar Association Ian Wilkinson leads a group of attorneys-at-law into the East Queen Street Baptist Church. -File

Bert Samuels, Contributor

A huge backlog of criminal and civil cases in the nation's courts has reduced the justice system to almost crisis level. However, there are several areas of the system which have seen significant improvements since Independence on August 6, 1962.

There have been major expansions andrefurbishing of several courthouses throughout the island, and new ones have been built in some parishes.

The court system, generally, has kept pace with technology and it is not unusual for witnesses to give testimony in the High Court from overseas by way of video link.

The Jamaican Constitution, which came into being in 1962 with the country becoming an independent nation, is the supreme law of the land.

The Constitution, together with the Charter of Fundamental Rights and Freedoms, provides specific guarantees for all citizens.

Many laws have been enacted by Parliament, based on recommendations from judges, and other interests, and legislation has been passed to assist accused persons who cannot afford the legal fees to defend themselves.

The frequency with which criminal cases had to be thrown out because prosecution witnesses were killed, resulted in 1992, in an amendment to the Offences Against the Person Act, allowing statements from persons who have died, or cannot be located, to be tendered in evidence at the trial.

A major problem still being encountered in the justice system, is that of an insufficient number of citizens turning out for jury duty.

This problem has led in recent times to some lawyers calling for the law to be amended so that some cases which are now tried by jury are tried instead by judge alone.

There is the debate also about whether preliminary inquiries should be abolished to speed up trials.

A sharp increase in the crime rate over the years is given as the major reason for the huge backlog of criminal cases - said to be 400,000 in courts islandwide - clogging up the justice system.

Prior to Independence, the relatively few murder cases - about five a month - generated much publicity.

In 1962, for instance, the police reported that 63 murders were committed islandwide.

In 2009, the figure was 1,680. Now, gunshooting and murder cases dominate the court lists.

In 1974, a dramatic rise in the crime rate, especially gun and shooting offences, forced the Government to pass the Gun Court Act.

The Gun Court, which was set up on Camp Road, Kingston, was painted a symbolic red to drive fear in the hearts of gunmen.

An accused person convicted of any offence under the Act, even if it is for illegal possession of a single round of ammunition, was sentenced to indefinite detention.

A team of Jamaican lawyers challenged the mandatory indefinite detention sentence and was successful before the UK Privy Council in having the sentence set aside as being unconstitutional.

The Act was amended, giving judges the discretion to pass sentences.

More judges, less justice?

With the increase in both civil and criminal cases, there have been increases in the number of Supreme Court judges and resident magistrates.

The Court of Appeal is the only court which has not had the number of its judges increased.

The number is still seven although, over the years, numerous calls have been made for the number to be increased in keeping with the heavy workload.

In December 2011, the Court of Appeal judges discontinued the colonial tradition of wearing wigs.

President of the Court of Appeal, Seymour Panton, said then that as Jamaica heads towards its 50th anniversary, it is appropriate to abandon the wearing of wigs.

The courts have been doing a great job in striking down amendments to laws which are oppressive to ordinary citizens.

In 2011, the Supreme Court struck down the controversial amendments to the Bail Act which had allowed for persons charged with serious offences to be held for up to 60 days without bail.

The court ruled that the amendments to the Act were unconstitutional and void.

Most of the nation's judges, resident magistrates and lawyers are graduates of the Norman Manley Law School, UWI, Mona, Jamaica, which opened its doors to its first students in 1974.

Jamaica's first female chief justice, Zaila McCalla, who was appointed to head the judiciary in 2006, is a 1976 graduate of the Norman Manley Law School.

Prior to that, most members of the judiciary and legal profession would have qualified at the Inns of Court in London.

The two branches of the legal profession, namely solicitors and barristers, were fused in April 1974 and are now referred to as attorneys-at-law.

Many lawyers

It is now estimated that there are more than 1,000 lawyers practising in Jamaica.

The United Kingdom Privy Council is still Jamaica's final appellate court.

However, in the throne speech delivered by Governor General Sir Patrick Allen on May 10, 2012, he stated that an Act to establish the Caribbean Court of Justice as Jamaica's final court of appeal is to be passed by Parliament in this legislative year.

He pointed out, however, that the process would involve further dialogue with the Opposition Jamaica Labour Party.

The huge backlog of cases dogging the justice system has resulted in a large number of prisoners languishing in custody, some for more than four years, without facing trial.

For the last several decades, Jamaica's justice system has been in a poor state. It still lags far behind meeting the challenging demands of the 21st century.

The Supreme Court building was in such a deplorable condition in the 1970s that the then Chief Justice Edward Zacca and the then Minister of National Security and Justice Winston Spaulding, QC, were forced to
seek the assistance of the United States Agency for International
Development (USAID) to refurbish the island's
courthouses.

USAID assisted with the refurbishing of
some of the island's courthouses in the 1980s.

Indeed, the
justice system today remains essentially in the same state as it was at
the turn of the 20th century.

The only fundamental
changes to it have been the separation of the Court of Appeal from the
Supreme Court on Jamaica becoming independent in 1962, and the
introduction of out-sourced mediation services to the courts since the
mid-1990s.

A Court of Appeal was established in 1962
as, prior to that time, appeal cases were tried by three judges from the
Supreme Court.

Case Management Conference for
criminal and civil cases was implemented in January 2010 in an effort to
speed up cases for trial but it has not created a significant dent in
the backlog of cases.

Justice reform task
force

In October 2006, the Government set up the
Jamaican Justice System Reform Project to review the state of the
justice system and develop strategies and mechanisms to facilitate its
modernisation to ensure that it is better able to meet the needs of the
citizens.

The project, undertaken over nine months by
the Jamaican Justice System Reform Task Force, recognised that for
reforms to be truly far-reaching, effective and accessible, they could
not be piecemeal.

The Ministry of Justice, and the
Public Sector Reform Unit of the Cabinet Office, with support from a
Canadian Advisory Committee made up of eminent jurists and court
administrators experienced in justice system reform, established the
task force.

Importantly, it enjoyed committed and
unwavering bi-partisan support. It presented its report in June
2007.

The findings were not a revelation to
Jamaicans.

The society knew about them all
along.

But what the task force did in its historic
320-page report was to take a really kaleidoscopic, wide-angled look at
the justice system with a view to undertaking a fundamental overhaul, as
opposed to the piecemeal snapshots that had been taken in the
past.

Successive governments, through the Ministry of
Justice, have been undertaking a comprehensive revamping of the court
system to infuse in it strategies and mechanisms to facilitate its
modernisation so that it is better able to meet the current and future
needs of Jamaicans.

But it is not a quick fix; rather,
it is a work in progress - and the transformational programme being
undertaken is expected to be implemented by 2017.

A
focal feature of the Justice System Reform will be Justice Square on
King Street, between Barry and Tower Streets in downtown
Kingston.

It will provide adequate space to ensure
that justice is not only implemented in a timely
manner.

As pleasing to the eye as Justice Square
should be, the public's main concern is reducing drastically the backlog
of cases.

Frank Phipps, QC, who has been practising
in the courts for decades, says he wants to see a "user-friendly court"
for the public, professionals and for prisoners.

He
recently bemoaned the fact that basic necessities and facilities for
comfort and security are not available at the nation's
courts.

Another senior attorney, Howard Hamilton, QC,
wants to see a drastic reduction in the number of cases before the
courts.

He wants to see a system established where the
Parole Board reviews the case of every prisoner before release to
determine, where applicable, if the conviction could be
expunged.

According to Hamilton, such a system could
give the prisoner a genuine opportunity to resist the temptation of
returning to crime and help to reduce the large number of cases before
the courts.

Bert Samuels is a veteran
attorney-at-law. Please email feedback to
editorial@gleanerjm.com.