A vicious, oppressive cycle is hanging over the judicial system and punishment is not fixing the problem of abuse in the prisons, says Justice Vasheist Kokaram.
Kokaram, who is also chairman of the Mediation Board of Trinidad and Tobago, expressed this view in a paper he delivered at the Commonwealth Magistrates' and Judges' Association (CMJA) 16th triennial conference in Kampala, Uganda, on September 13.
Kokaram was part of a panel discussion titled "How can we improve the quality of Justice? Infusing a humanistic approach into the civil justice system: an experimentation in Judicial Settlement Conferencing".
Mediation, he proffered, is a mechanism helping to decongest the courts, which are overwhelmed with matters, and is also aiding in rebuilding family life in the settling of disputes.
Kokaram cited several cases which had evidence mediation was a formula for success.
In one matter, it reunited cousins who were squabbling over property and, in another, closed the gap between a father and daughter who had not spoken in years.
"The civil justice system has been marketed like the famous Buckley's advertisement: 'it tastes awful, but it works'. It is an imperfect system which prides itself with the knowledge that there is no other better alternative. Or is there?" asked Kokaram.
"In my view, unless judiciaries transform its vision of itself as the drivers of an imperfect system, it will preside over the development of extra-judicial systems of dispute resolution which will find the judiciary becoming, in the 21st century, the alternative service provider of justice. Unless we transform our roles as judges and attorneys into peacemakers and facilitators, we would be incapable of stemming a tide of public dissatisfaction with the integrity of the judicial system," he said.
Another transformation that can yet take place, he said, was in the law of exemplary damages.
"There must be some other social medium to correct deviant behaviour apart from registering disapproval of that behaviour by punishment. Punishment is seen as the formula to prevent the recurrence of the same wrong. Is it effective? Is it just?" asked Kokaram.
"Our courts have been punishing prisoners and prisons officers alike, and unwittingly creating a more oppressive prison climate in our attempt to settle disputes between prisoner and prisons officers," said Kokaram.
He noted that there were "far too many" claims for assault and battery that were coming before the courts.
Kokaram noted that in 1998, Chief Justice Michael de la Bastide in Thaddeus Bernard v Nixies Quashie CA 159 of 1992, said: "There is a tendency among a minority of uniformed officials in this country to exercise their authority in an oppressive and unreasonable manner."
Such oppressive conduct which was censured by our courts so long ago, said Kokaram, is still, even today, unfortunately rearing its ugly head, and the court has had no choice in the traditional adjudicative setting but to condemn it in the strongest of terms.
"But our condemnation is reflected in more punishment in the form of an award of exemplary damages," he said.
"I am doubtful whether awards of exemplary damages are in reality having the effect of deterring other members of the force from engaging in the type of conduct which the court is condemning in this case. And it is doubtful whether a form of punishment is in fact appropriate to solve the problems underlying an act of violence in prisons or between the State and members of the public," he added.
"The prison system is a unique and sensitive environment of delicate relationships which must be carefully managed. What the judiciary has done in its attempt to deliver justice by making awards of exemplary damages has only served to create a cycle of hostility and acrimony in a high-tension environment when every attempt should be made to restore harmony," said Kokaram.
He noted the social impact of the Commission on Safety and Abuse in American prisons; the Commission observed: "What happens inside jails and prisons does not stay inside jails and prisons. It comes home with prisoners after they are released and with corrections officers at the end of each day's shift. When people live and work in facilities that are unsafe, unhealthy, unproductive, or inhumane, they carry the effects home with them.
"We must create safe and productive conditions of confinement not only because it is the right thing to do, but because it influences the safety, health and prosperity of us all... We must remember that our prisons and jails are part of the justice system, not apart from it."
Kokaram said in the new law term he has scheduled two such cases of claims by a prisoner for damages for assault and battery against prisons officers to examine the prospect of mediating the dispute.
"The nature of the dispute was such that the facts or the versions of the incident are so at variance with each other. If I believe the prisoner, then it is a clear case of an unprovoked attack and wanton mindless abuse. If I believe the officers, then it is case of a prisoner who has fabricated charges against innocent guards out of the wind," he said.
"The only legal result is either a dismissal of the claim and an award of costs to punish the lying litigant, or the award of damages inclusive of exemplary damages to punish the abusive prisons officers."
Kokaram questioned whether a system of punishment reinforced core human values of compassion, respect and understanding.
"There will still be in those scenarios larger unresolved administrative institutional and emotional issues. Do either of the parties need counselling, what is the underlying cause of the tension leading to violence on the prisoner or to targeting innocent prisons officers?" he questioned.
Kokaram said we cannot continue to adopt a revolving-door approach by recycling deviant behaviour.
"I am convinced that in a large majority of cases, the cry for justice calls for a humanistic approach to the application of the law," said Kokaram.
He noted the words of Dr Justice Arijit Pasayat in his essay, Human Rights and Social Justice, where he commented: "Humanism is the soul of justice and of all social sciences. In the words of Anatole France, 'To disarm the strong and arm the weak would be to change the social order which it's my job to preserve. Justice is the means by which established injustices are sanctioned'."