In last week's column, we looked at how the Judiciary performed in the era after independence. We argued that notwithstanding some significant "miss steps" the overall performance was positive compared to states in Africa, Asia and Latin America and even the USA, the Trinidad judiciary could take a bow.
One area where the record of the Judiciary's performance was equivocal is that of "undue delay".
Over the years, several judicial officials and investigatory committees have referred to the problem.
As one former attorney general put it: "Judicial delay not only caused despair and stress, but increased costs to litigants. In many cases, the victims were little people, widows, people injured by motor vehicles or in the work place, public servants— who often give up in despair. Some countries like the Philippines had sought to deal with the problem by withholding or suspending the payment of salaries and pensions for non- delivery of judgments."
What is to be done about the problem? In some jurisdictions, judges have been called upon to resign for failure to deliver timely judgments.
Some critics of judicial sloth have also suggested that all judges should not be paid the same, and that use should be made of increments to encourage performance. Doing so is however neither practical nor desirable.
Moreover, it is ultra vires the Constitution which does not admit to changing the terms and conditions of a judge's appointment to his disadvantage. Such action could provide an opening for the executive to punish judges who disagree with them.
One group of people who are very angry with judicial is the prison population who believe they are hard done by. They blame the Judiciary for the length of time they have to spend in the Remand Yard without having their matters heard or fully heard.
They complain bitterly about the issue, and one is not surprised that there have not been eruptions as there were in 2006.
Persons concerned with prison reform believe that delay helps to generate overcrowding in the Remand Yard which has the effect of nurturing frustration and a belief that justice is being done. The system also serves to incubate criminals. Inmates are not stratified because of space limitations, with the result that inexperienced offenders learn the tricks of the business from sophisticated veterans.
The Chief Justice, who understands that the Judiciary is an essential pillar of the criminal justice system, has drawn attention to the overcrowding phenomenon, and has pledged to work with the Ministry of Justice and the Minister of National Security to address the problem.
There have been various attempts to introduce new rules which improve the case-handling process.
There have also been innovations in respect of bail management by Justice Anthony Carmona, but these only scratch the surface.
There are also plans to introduce a drug court in the next few weeks which should help to reduce loads. The reality, however, is that the queue for justice never seems to get shorter. It has always been so.
The more matters you dispose the more litigation you seem to attract.
The trick is to find ways to reduce the number of matters that go to trial. The CJ recently provided us with a sobering statistic, viz that "if every matter went to trial, each judge would have to do over 400 trials per year, a clear impossibility".
The CJ, however, indicated that there is some good news. Seventy-six per cent of matters are now being disposed within two years of filing, 58 per cent in less than one year. This is a remarkable turnaround from what previously obtained. The news is, however, not so good in respect of the magistracy which some say has pre-collapsed. There were 104,155 new cases in 2011 up from 89,416 the year before.
What then is to be done? There are a few that could be tried or are being planned, but none is easy and costless. You can increase the number of courts and judges, and you can try night courts, family courts, and drug courts as have been done elsewhere. These will help, especially the drug courts. But there are cultural and other constraints.
The Judiciary has a resource and a capacity problem, and the responsibility of dealing with the problem does not lie solely with the Judiciary. The lawyers also contribute to the delay. There are, I am told, not enough criminal lawyers, note takers et cetera. There are also not enough police. Its a many-sided problem. It is, however, an urgent matter to which all energies should be bent.
Perhaps we should borrow from the Pratt and Morgan precedent in respect of those inmates of the Remand Yard. If a detainee cannot have his matter dealt with in say three years, he should be set free unless doing so constitutes a serious threat to peace and security.
Undue delay could be deemed cruel and unusual punishment. In my view, one night is long enough to be spent in the Remand Yard, particularly if the charge relates to using marijuana. Doing so would lift a great burden that now afflicts the court and those in it who might not be guilty or guilty of a minor offence
To return to where I began: my judgment is that not withstanding what the opinion surveys say about the population's lack of trust in the Judiciary, and occasional lapses and missteps (eg the Jamaat-al- Muslimeen amnesty trial, or the charges relating to the charges alleged in respect of the Chief Justice), my own judgment is that its general performance has been acceptable and that the fear once expressed by Justice Isaac Hyatali that too much water was being mixed with the brandy, has proven to have been exaggerated. Wooding and his court did well, and laid a good foundation. Williams did well to have recognised the limits of his power.
Challenges, however, lie ahead.
One has to keep several steps ahead of the drug lords who will no doubt test our probity as they have already sought to do in respect of the other branches of government in Guyana and around the region.