A week ago, Justice Jacob Wit, a Judge of the Caribbean Court of Justice, participated in a Seminar at the Arthur Chung Conference Centre on “Rethinking Criminal Justice.” It was a timely and important conference because our criminal justice system, like our appeal system, is in a state of collapse. This is no exaggeration because these systems do not deliver justice to the Guyanese citizen in a reasonable time, as provided for in the Constitution. Accused persons are tried years after they are committed to trial. Those on remand have to spend their time in prison. Civil appeals now take about six years to be heard. I hasten to add that this state of affairs is not the fault of judges. They work diligently and under great pressure.
The state of our judicial system was not created by a natural disaster. It is man-made and there is no hint that any man-made solution will ever be entertained. Up to recently the High Court had twelve appointed judges although the full complement is twenty. Three out of the twelve, twenty-five percent, have recently retired and cannot be replaced because a Judicial Service Commission is not being constituted, although there is no known obstacle to doing so. The Court of Appeal has had only three Judges, out of a complement of five, for over fifteen years. The full complement for the Court of Appeal has been recently increased to nine.
At the seminar, one panelist, Justice Jo Ann Barlow, said that shorter trial periods cannot be attained if the number of judicial officers and support staff are not increased. Justice Barlow said: “It is by the grace of the Almighty that we manage to keep the system afloat.” The main idea promoted by the very experienced Justice Wit is of a pre-trial chamber of a judge, assisted by a master, or a magistrate, to monitor and review cases which have been committed for trial. This pre-trial chamber will give bail, sifting out the weaker cases, keeping the stronger ones, engaging in plea bargaining, thereby reducing the number that have to be tried. These ideas all have merit, but no judges or staff can be spared for this task.
The idea also arose for “judge-alone” trials, that is, trials without juries. Justice Wit was a deputy judge of the Rotterdam District Court and a Judge of the Netherland Antilles and Aruba among other judicial appointments. He has presided over ninety judge-alone trials. The Director of Public Prosecutions accepted the principle but for financial misconduct cases that hardly ever reach the High Court.
An article bearing the title “Abolish Jury Trials,” written by me and arguing for the abolition of jury trials, was published in 2012. While the objective of the proposal then was to ensure that guilty persons are not let off by juries for reasons other than the evidence led in court, the abolition of jury trials will reduce trial time and the backlog which keeps growing. I wrote in 2012 (amended) as follows:
Trial by jury is supposed to provide the ultimate safeguard against authoritarianism and the abuse of state power. However, India, Pakistan, Singapore and others have abolished trial by jury. In the case of India, it was because of the divided nature of the society which resulted in jury decisions being made on the basis of prejudicial factors instead of the facts of the case. In the case of Singapore, it was as a result of the view that jury decisions on the basis of the prejudices of jurors was not a good basis for judging facts of a case. In Germany and Italy, decisions in criminal trials are made by tribunals consisting of a few judges and some citizens sitting together and making decisions on the guilt or innocence of the accused and passing sentence. There has been no complaint of the quality of justice dispensed in countries without jury trials.
In Guyana, quite apart from deficiencies in investigation and/or prosecution, many convictions are overturned on appeal because of inadequate summing up by judges to juries. But the acquittal of accused persons is not solely due to prosecutorial or judicial lapses. The Guyana Chronicle of May 29, 2012, described the freeing by a jury of a 25-year-old rape accused as a ‘surprise verdict.’ It stated: ‘It is said that after the offence was committed, the accused was chased and caught by men who did not lose sight of him.’ The report said that the Judge also appeared surprised at the verdict. This is not the first instance where evidence points clearly in a certain direction and the verdict of the jury then defies explanation.
Guyana needs a criminal justice system that protects the constitutional rights of the accused by delivering a fair trial within a reasonable time and delivering justice for the victim. Many ideas, including the abolition of jury trials, combined with the mechanisms offered by Justice Wit and others, can aid this process and substantially reduce the backlog. But seminars on these matters and articles such as this are currently a total waste of time. The authorities do not care, are not listening and have no intention of doing so.
(This column is reproduced with permission from Ralph Ramkarran’s blog, www.conversationstree.gy)
