Mon | Dec 5, 2016

Hobbling courts an injustice to justice

Published:Sunday | February 1, 2015 | 12:00 AM

Martin Henry

Right in the middle of a fresh round of bickering about the Caribbean Court of Justice, this newspaper has given voice to Chief Justice Zaila McCalla on the sorry state of the domestic justice system.

As if to drive home the point, the courthouse in Santa Cruz has been recommended closed by the parish health department.

And on the larger national scene, the minister of national security managed to unleash a firestorm among the usual placidly silent judiciary when he suggested in a statement to Parliament that judges might not continue to automatically qualify for security by police bodyguards. Rightly, there have been howls of protest, and sensible back-pedalling.

I have long been advising heads of public departments and agencies to speak out and let the public know the conditions under which they work, and which affects the quality of the service they can deliver. The failure to do so has little to do with legal restrictions and much to do with fear and a deeply entrenched culture of silence.

So when the courts cannot clear cases and deliver written judgments in a timely fashion, it is not for mysterious reasons lost in a black hole. Apart from leaking courtrooms, falling roofs, collapsing floors, and pigeon infestation, the head of the judiciary told The Gleaner in a frank interview last week that there is a shortage of court reporters joining a shortage of judges and a shortage of courtrooms in impeding the performance of the system.

SHORTAGES

As Senior Gleaner Writer Erica Virtue reports from her one-on-one with the chief justice, "The inability of the justice system to attract more persons to the job of court reporter is ... one of the factors that put the brakes on the wheels of justice. Court reporters are used to taking verbatim notes in proceedings in the courts, and the shortage is one of several challenges facing the court system, which is heavily dependent on transcripts, particularly in cases of appeal."

Court reporting is a highly skilled profession, requiring advanced shorthand skills, good language skills, and familiarity with court jargon and procedures. You would have thought young people, university graduates, would be queuing to get in. Instead, numbers are declining and the failure to attract more persons has left those in the system carrying impossible workloads.

You can be sure that conditions of work and salary levels are the main deterrents.

The resident magistrates have captured the Petty Sessions Court, "the only proper courthouse in Santa Cruz". And pigeons have captured the RM Court, which is upstairs the police station. Thanks to the abundant supply of pigeon manure, persons with respiratory problems attending the court are finding it difficult to breathe ... ." The roof leaks, "and as rain starts, you have to start looking up and getting your umbrella to leave court," Queen's Counsel Velma Hylton told The Gleaner in the January 24 story, 'Health department recommends closure of Santa Cruz courthouse'.

And it's not just the pigeon droppings and the health concerns; the place is falling down. Like the courthouse in Black River, a National Heritage Site building, where chunks of the roof came down in April 2013. Attorney Hylton, armed with her asthma inhaler, declares, "The Black River courthouse, as far as I'm concerned, ought to be condemned. It, too, is pigeon-infested, cramped for space, and falling down. Some large stones and a part of the ceiling fell out [in April 2013]. Some of the windows are not proper; there are panes of glass missing, and when rain comes, it comes from the top and from the side. They did some work to stop the boulders from falling; certainly not enough," the attorney complains.

Like the people of St Elizabeth and well-thinking Jamaicans across the country, she wants to see the court facilities improved and expanded.

"First, we need a courthouse in Santa Cruz, which is the fastest-growing town in the parish and has the largest attendance of accused persons and witnesses at court for two resident magistrate's courts, because you have a Petty Sessions Court already.

"In Black River, which is the capital, we need a courthouse for two resident magistrate's courts and for the Circuit Court, and for petty sessions, too, because they have the annex which they use as Petty Session Court or as a courthouse sometimes. And that is worse than the black hole of Calcutta, because it's about 10 by 10 and it houses the magistrate, the counsel, accused persons and witnesses."

WHERE ARE THE JUDGES?

While pigeons are too many, judges are too few.

Lawyers have been demanding that the bench cuts the long wait for written judgments. The head of the judiciary counters in her Gleaner interview that citizens may not be aware of the rigorous schedule of judges, who are being criticised for failing to deliver timely written judgments in an increasingly litigious society, and one might add, an increasingly criminal society.

"They expect, and rightly so, that their issues will be addressed and judgments delivered in a timely manner. And while it is a fact that some judges do not deliver judgments expeditiously, we have a shortage of judges," she makes clear.

The chief justice continues: "So a judge might hear a civil matter, and then that judge goes out to Circuit to do criminal matters, and might be out there for some time, and, therefore, take longer to return to the one that was concluded before he or she left.

"On their return from doing criminal matters, you come into court again, go into chambers, and you are hearing more cases. But it's not that judges with outstanding judgments are sitting down. They are doing other cases, which may be shorter, and the judgments in those are done more quickly. Then, they work on other matters again and the original one gets pushed back."

Budget time for the next financial year is coming up, early, new, and different. Justice is not just one of many competing options on which Government must spend money. Like security, it is a core function of any government. "The courts all over, for a long time, have been under-resourced through successive administrations," the chief justice tells The Gleaner. Having "to go hat in hand, just like other organisations, for a piece of the pie to be allocated" is one thing, but even when a budget for the operations of the courts has been approved, "the actual funding of that budget on a regular basis may cause a problem if funds are not forthcoming".

We are in the throes of another round of debate about a final appeals court for Jamaica, as if it were a matter of earth-shaking significance for the delivery of justice. The real justice issue is the operation of the ground-level courts, the resident magistrate's courts, in which tens of thousands of Jamaicans must seek the resolution of their legal matters with delay and frustration and in contention with rain and collapsing buildings - and pigeons. In a recent year, all of 14 cases went up to the UK Judicial Committee of the Privy Council.

I have a great deal of sympathy for the current JLP position of a Jamaican final appellate court, and would go further to say this could well be the existing Court of Appeal enshrined in the Constitution. My real concern, however, is with the delivery of justice where it matters most, at the base. The many former British colonies, which as independent states have gone the route of scrapping appeals to the Privy Council, have all established national final courts of appeal.

At bottom, our fear of going that route is not so much, it seems to me, a concern for the quality, or cost, of justice as it is an ideological attachment to the shaky idea of a CARICOM.

The quality of justice, ultimately, depends on our respect for the rule of law and our adherence to the principle, something that external parties cannot in any final sense guarantee, although the long arm of international law can strongly assist without reliance on an external court of final appeal. But let's fix the base.

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