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Friday 13 December 2019
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Justice Kokaram’s complaint

Justice Vasheist Kokaram has diagnosed a key problem relating to the judicial system. Yes, the wheels of justice move too slowly. But as he suggested last week, there are some matters that should never reach court in the first place.

“Instead of doing things to people, institutions should devise a way of working with people,” Kokaram appealed at a function to commemorate the World Day of Peace in San Fernando. “Our jurisprudence and our system of justice should work with people and not against them, towards finding results which allow them to enrich their lives and not destroy it.”

When a judge makes such remarks, we should pay careful attention. But Kokaram is able to speak to these issues not merely from his perspective as a judge but also from his point of view as the chairman of the Mediation Board, a statutory body set up to encourage the practice of mediation.

While we normally think of the system of law and order as being a deterrent to violence and a forum for justice, Kokaram, strikingly, sees it as having the opposite effect due to its litigious nature. He describes the system as “an adversarial system which sanctions civilised warfare between disputants. A system which has recoded physical violence for a far more insidious type of violence, of language which is socially acceptable and socially destructive.”

There may be some merit to this. Too often we focus on symptoms without attention to the underlying cause. Conflict is often a manifestation of a deeper breakdown in families and communities. It is a sign of our inability to navigate competing interests and to compromise. As the judge remarked, “We live in an adversarial society. We have been conditioned to the view that to achieve peace there must be a war of attrition of rights. To achieve an increase in wages there must be strikes, to achieve respect there must be inflammatory language, to achieve better conditions of life there must be protest.”

However, we do not go so far as to argue, as Kokaram does, that “the legal system as the force of the State compels people, orders them to do things. The force of the law legitimises violent acts such as the destruction of homes, the removal of crops, the laying of oil pipes in forests, the taking of a life.” Law does no such thing. Like any other element of our society, law is merely a tool. How it impacts society depends on the people who administer it and how it is used.

The law cannot achieve rehabilitation if it is not working efficiently. In fact, the opposite is true. An unhealthy legal system breeds resentment and undermines justice in the long run. Which is why we welcome ongoing measures to improve the system of law overall, such as the legislation to abolish preliminary inquires which was this month piloted by Attorney General Faris Al-Rawi.

The practice of plea bargaining is another example of an approach that balances the interest of accused people with that of victims. A recent example is the case of Jassodra Jugmohan, 62, who pleaded guilty to manslaughter on Tuesday. She was initially charged with the murder of her husband ten years ago. Yet, while awaiting trial, she suffered a series of strokes, which have rendered her wheelchair-bound. Her sentence is now entirely in the hands of the presiding judge who will apply the relevant laws and principles given the facts. However, it must be questioned why a matter like this should have taken so long in the first place.

It may be too late for Jugmohan and for the victim’s family but, as Justice Kokaram reminds us, the focus should not be only on what happens in court but on reducing the need to be in court in the first place.

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