Time for real jus­tice re­form

Jamaica Gleaner - - OPINION & COMMENTARY -

THE STRENGTHS of Ja­maica’s ju­di­cial sys­tem are that it ad­heres to the prin­ci­ple of ju­di­cial in­de­pen­dence, re­sists po­lit­i­cal in­ter­fer­ence, and is largely un­cor­rupt. How­ever, the sys­tem also has se­ri­ous fail­ings, which make it one of the weak­est links in the na­tional sys­tem of law en­force­ment and jus­tice.

First, the le­gal process is of­ten sub­ject to in­or­di­nate de­lays. The jus­tice min­istry es­ti­mated in 2013 that there was a back­log of more than 400,000 charges in the courts. There have been cases where peo­ple have re­mained on re­mand in po­lice cells, await­ing trial for more than two years, and many cases, even homi­cides, take years to com­plete.

Sec­ond, in­ter­minable de­lays, in con­junc­tion with the lack of wit­ness pro­tec­tion, de­ter many peo­ple from giv­ing ev­i­dence. Third, there is a wide­spread per­cep­tion that those who are suf­fi­ciently rich and pow­er­ful are ef­fec­tively above the law.

Fourth, there have been al­le­ga­tions of cor­rup­tion, money laun­der­ing and fal­si­fy­ing ev­i­dence; there may not be many cor­rupt lawyers or court of­fi­cials in Ja­maica, but crim­i­nals only need one well-placed fa­cil­i­ta­tor in or­der to es­cape jus­tice.

These fail­ings have un­der­mined re­spect for the law and con­fi­dence in the jus­tice sys­tem.

These prob­lems are well known. What is per­haps less well known is that most of these prob­lems could be re­solved rel­a­tively quickly. There are coun­tries that had sim­i­lar prob­lems but, un­like Ja­maica, dealt with them de­ci­sively.

Colom­bia’s jus­tice sys­tem was in a sim­i­lar po­si­tion in 2000, but the gov­ern­ment drove through a set of com­pre­hen­sive le­gal re­forms. First, it cre­ated 85 cen­tres for me­di­at­ing dis­putes and an­other 14 courts, which gave nearly half a mil­lion more peo­ple ac­cess to the jus­tice sys­tem. Judges re­ceived ad­di­tional train­ing and were sub­jected to proper eval­u­a­tion of their per­for­mance. The sys­tems of court man­age­ment were strength­ened, with a new fo­cus on ef­fi­ciency, per­for­mance and speed, and un­nec­es­sary pa­per­work was elim­i­nated. These re­forms re­duced av­er­age case­pro­cess­ing times from more than two years to a cou­ple of months, so cases that used to drag out over years could be stream­lined into a sin­gle court hear­ing.


The re­sults were re­mark­able. The time needed for a crim­i­nal case was re­duced by 80 per cent, pro­duc­tiv­ity in­creased by an av­er­age of 389 cases per judge per year, the back­log was re­duced by more than a mil­lion cases, the con­vic­tion rate for homi­cide in­creased from three per cent to 60 per cent, and the ef­fi­ciency gains gen­er­ated sav­ings of US$92,000 per court per year.

With re­gard to cor­rup­tion, the pi­o­neer­ing ex­am­ple was in­tro­duced by Italy more than 30 years ago. Italy fought the Mafia for decades, but made lit­tle progress un­til the gov­ern­ment changed the law to al­low the seizure of as­sets from both crim­i­nals and the fa­cil­i­ta­tors of crime. The 1982 Rognoni-La Torre law (Ar­ti­cle 416-bis of the Ital­ian Pe­nal Code) in­tro­duced the crime of Mafia con­spir­acy, and gave the courts the power to seize the as­sets of any­one be­long­ing to the Mafia con­spir­acy, which in­cluded the cor­rupt po­lice of­fi­cers, politi­cians and lawyers who pro­tected the dons. Since then, the po­lice have seized more than US$50 bil­lion from the Mafia, and have fi­nally started to break their power as a re­sult.

These ex­am­ples show that a few, well-tar­geted le­gal re­forms can trans­form the sys­tem of jus­tice.

A sim­i­lar pro­gramme of re­form in Ja­maica should in­clude in­sti­tut­ing stronger court man­age­ment sys­tems, the in­tro­duc­tion of clear guide­lines for sen­tenc­ing and for grant­ing ad­journ­ments, and the dis­missal of in­com­pe­tent judges. Mem­bers of the ju­di­ciary should be given ad­di­tional train­ing in pro­ceeds of crime and as­set for­fei­ture and anti-cor­rup­tion legislation, and we should fol­low Italy’s ex­am­ple by mak­ing the fa­cil­i­ta­tion of or­gan­ised crime a se­ri­ous crim­i­nal of­fence, so that a lawyer, banker or ac­coun­tant that as­sists clients to con­ceal their as­sets or laun­der the pro­ceeds of crime may also have their as­sets seized. We should also fol­low the USA in im­pos­ing de­nial of tainted as­sets dur­ing trial, so that crim­i­nals can­not pay their le­gal fees with the pro­ceeds of crime.

Sadly, the le­gal es­tab­lish­ment in Ja­maica is not known for its en­er­getic pur­suit of re­forms. So we may have to wait un­til the Gov­ern­ment finds the re­solve to act, or un­til the peo­ple de­mand a sys­tem that can de­liver jus­tice im­par­tially, swiftly, ef­fec­tively and eco­nom­i­cally.

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