Much continues to be whispered about the revolutionary events that took place some weeks ago and which are now labelled as "Section 34".
The outcome of the matter has not been formally determined since there are appeals to be heard and a motion of censure pending in Parliament. Even If half or even less than half of some of what is being said proves to be true, then we are in a very sad state, one in which many of our iconic institutions within which public policy is made would have been rendered suspect.
No wonder the MP for San Fernando West, Carolyn Seepersad-Bachan, has suggested that the entire membership of Parliament should apologise, since they all but a few literally fell asleep on the job of safeguarding our democracy from predators
I am reluctant to comment on the details of the matter since I have no court clothes nor evidence of my own to weigh in on the matter at hand. I am convinced, however, that some of our significant institutions failed us, and that in so far as good institutions make a difference to public policy making and good governance, we are in need of a major constitutional overhaul, as Messrs Spence and Hamel-Smith have advised.
We were left at the gate by both houses of Parliament, the DPP's office, that of the Attorney General, the Cabinet, the Judiciary and the presidency.
Singly and collectively, they have let us down and we just can't "move on", leaving smoky exhaust fumes behind us. There is thus a need to effect constitutional engineering, and what is perhaps more important, we need to have another look at how our institutions "fit" our political culture, which of course is a difficult to do.
Many readers see the matter in terms of the twinned Ish and Steve. There is, however, another beginning. It is important for us to understand how we got into the mess that is Section 34. It all begins with the Judiciary which is faced with what has been described euphemistically as a "capacity problem".
The courts over the years and at all levels have had a problem coping with the number of matters which require authoritative adjudication. There has always been an imbalance between those who offend and those who claim to be seeking access to justice.
The problem is that access to justice is a complex exercise, and one cannot readily solve the problem by sitting under a palm tree dispensing justice, or installing more judges.
Many other resources are needed to enhance capacity—more court houses, more policemen who could read and write, investigators, lawyers, clerks who could record accurately what is said, forensic facilities just to name a few.
It is not that judges are lazy or that the lawyers are delinquent. As a former chief justice once explained: "If the administration of justice does not work as smoothly or as effectively as it should, there is little point in saying—it's the judges fault, or a lawyer's fault since they are never ready and talk too much anyway. It is more useful to examine more carefully why the machinery of justice is not working."
The result of this "capacity insufficiency" is that the trial lists grow longer and longer each day. CJ Archie explained last year that "the best available statistics show that, at present, it takes 51/2 years on average for an indictable matter to move from the stage of the laying of the information to the filling of an indictment in the High Court. Historically, this has been due, in part, to a lack of resources, but it has exposed witnesses to undue risk and eroded the quality of testimony and delivery of justice as a whole by the mere fact of delay."
How then to solve this problem in the High Court and the Magistracy? There have been many suggestions. One is to introduce a type of "sudden death" Pratt and Morgan-type of settlement.
If the State cannot resolve a matter in five or even ten years after the matter has been filed, the defendant should be declared to be "not guilty" unless it can be shown that he/she was responsible for the delay. Certain kinds of offences would, of have course, had to be exempted from this provision to ensure public safety and/or consideration for victims' concerns.
A related concern was expressed for those who are languishing in the remand yards of our prisons for years on end without having their matters heard, either because they could not raise bail or because they had committed offences which were not bailable.
I have visited one of those yards and agree with Justice Carol Gobin who, following a visit there, declared that the conditions at the remand yard in Port of Spain were "horrific" and a hellhole. As she observed further, "persons presumed innocent are deprived of air, light, sanitation, hygiene, exercise and even food".
These conditions were "beyond harsh". Thousands of inmates crowd the remand yards. The Chief Justice himself noted that 104,155 new cases were filed in 2010, up from 89,416 the year before. Many of these persons end up in the remand yard.
The elimination of preliminary enquires and the introduction of Section 34 to deal with indictable matters was expected to help bring the supply of justice into line with demand.
As the CJ opined, "We confidently expect that the introduction of the new rules, the average age of indictable matters in the system will fall drastically, thereby ensuring speedier justice. It will also have a knock-on effect at the level of the magistrates courts. As some of the work load is reduced it, is expected that the magistrates will be able to devote more time to summary trials, thereby reducing the average time to completion—to put it starkly, if every matter went to trial, each judge would have to do over 400 trials per year, a clear impossibility."
Section 34 was intended to help make the impossible possible in that it would have helped to clear the list of "aged legal deadwood".
The CJ was of the view that "access to justice" was the most fundamental of all human rights. The core value of access to justice is at the centre of our vision in which timeliness and efficiency are the hallmarks.
Volney claims that he shared this vision, and that his principal aim in getting the President to proclaim the section expeditiously was driven by his anxiety to fast-forward prisoners' access to "justice".
But was Volney really driven by this concern for human rights or were there other factors? Time and the fat lady's singing will tell, perhaps. Ironically, the repeal of the act leaves those in the indictable stream and the remand yard system just where they were before.
What a pity!