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Tuesday 17 October 2017
Commentary

A Judiciary In Disarray: the conclusion

Having outlined some of the problems and shortcomings which characterize the judiciary, the question that must be confronted is what are the possible solutions to such dysfunctionality.

There must of course be a short term and longer term perspective. I have already mentioned the desirability for greater transparency in the judicial process and greater accountability for judicial outcomes. One needs to repeat the old adage that justice is not a cloistered virtue.

Some proposals now being considered to expedite the judicial process include the elimination of trial by jury as well as the requirement for a preliminary enquiry. There are arguments for and against these recommendations. On the face of it, I will support these proposals and hope that, if adopted, they will achieve their objective. The ill-fated attempt to abandon cases which have been before the courts for more than ten years (Sect. 34) needs to be revisited in order to devise more acceptable provisions. I myself had proposed a few years ago that lay magistrates should be added to the system to deal with minor offences and thus bring some relief to the formal Magistrates’ Courts by a reduction in the number of cases to be heard by them. Then, there is the need to address the enormous number of postponements of cases granted on the flimsiest of pretexts and the unconscionable delay in delivery of judgments and the reasons for same. Recommendations to increase the personnel in the judicial system for speedier processing of cases and their finalization ought to be given urgent attention by the authorities.

However, some of the solutions pertaining to the heavy case load to be accommodated by the judiciary may lie outside its remit but are nevertheless salient to its operation. We must take into account that we are an argumentative and litigously- inclined people motivated by an inordinate affliction of ego. It is rare for someone engaged in a dispute to be persuaded by a recourse to moderation or compromise. People seem not to appreciate the huge wastage of time and financial resources involved in litigation with only lawyers being enriched. Very often, at the end of the day, there is a feeling of disappointment that justice appears to have not been served. There will however, continue to be many instances where it is imperative that matters be referred to the courts especially where criminal conduct is alleged.

The societal objective should be a reduction in the number of cases being brought before the Courts thus rendering the volume more manageable and resulting in a speedier judicial process. In this regard, Justice Kokaram is reported to have said recently (Newsday 28/9/17) that “ there are some matters which should never reach court in the first place.” One possibility is to facilitate greater resort to conflict resolution and dispute settlement mechanisms where issues can be resolved more informally and more speedily. Institutions of mediation should be strengthened and the use of their facilities encouraged as much as possible. In order to give effect to this purpose, there is need to address the aggressive adversarial propensity of the average person through counseling and community programmes. For a more sustainable outcome for future generations, the rationale for mediation, conflict resolution and compromise should be taught at primary and secondary schools.

Another area which holds potential for restricting the number of cases before the courts is the operation of the penal system. It is no secret that there is a high incidence of recidivism where repeat offenders appear with great regularity before the Courts. The issue to be considered here is devising and implementing more effective measures of rehabilitation within the penal system and outreach programmes outside of it in order to reduce the numbers who have a propensity to re-engage in unlawful activity.

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