Politics of patronage and privilege

THE EDITOR: Evidence as a pillar of the law is fundamental to its successful execution but often it is not as sacrosanct as it should be. The inspiration for this letter is the recent headlined exoneration of a senior public official because of the “lack of evidence” to prove the allegation against him. Such may be the case in this instance for it presumes due diligence in the investigation of the matter leading to the conclusion that there is no evidence to support the allegation. But herein lies a problem.

The politics of patronage and privilege in this country often precludes the kind of confidence in such judgements for fair play and justice are often compromised by loyalties associated with such politics, especially in cases where would be litigants have the power to punish law administrators who dare to be so audacious. It is common knowledge how many high flyers in our politics against whom allegations of wrong doing have been made, as in a recent instance, are continuing to tout their power and influence because of a “lack of evidence.”

But evidence is not only compromised in our partisan politics. There are other situations where its application should be at its hallowed best but it is not. In the protective services, for example, it is alleged that evidence is often suppressed for an inducement or “planted” as a way to incriminate a would be offender. The Sunday Express editorial of August 8 captioned “Clean up the army and police" is telling in so far it illustrates as how far removed this arm can be from its legitimate role of evidence gathering as a means to criminal prosecution. Further, even with its application from the Bench itself one is led to wonder at the verdicts pronounced in favour of litigants with prominent political connections, as with one case in the not too distant past. Then too there is the issue of the manipulation of evidence by clever lawyers to serve certain powerful interests, often mesmerizing the simple minded in the docks to answer incriminating questions leading to verdicts far removed from the truth. Evidently, justice is often mocked by this corruption of its fundamental pillar.

But there is more to this travesty as regards evidence and the law. First, the legal tenet of “beyond reasonable doubt” negates the issue of proportion with an overwhelming 90 per cent plus in favour of guilt but with a single red flag of contrary evidence negating that virtual unanimity. Where is the sense of proportion in this legal ethic? Should the penalty not be proportionate instead of the total exoneration which often results?

Secondly, there is the issue of “circumstantial evidence.” Who would have been in a position to witness the rape of the innocent young woman by her lecherous boss or by her abductors as she waited for a taxi after a hard day’s work? Instead of the proverbial response "that there is no evidence because no one witnessed the incident" or that the evidence is merely “circumstantial” shouldn’t there be enough forensic expertise to piece the circumstances together pointing to a guilty verdict?

Finally, there is the issue of “infringing” on the rights of the perpetrator. Scorpio in the film Dirty Harry was allowed to go free although he had committed several murders, simply because the district attorney in the film thought that Harry had no warrant to search the murderer’s premises and that he had applied excessive force in apprehending him. Legally correct, perhaps, but the district attorney’s action reflects an anomaly in which the rights of the criminal often take precedence over the suffering of the victims.

There are many more anomalies on this issue of evidence in law, but with my race already run in terms of space, I can only suggest that more research should be done by post-graduate students to neutralise such anomalies which are often exploited to the fullest by criminals and their legal agents. Research has to go beyond merely trying to locate legal precedents which fit the objectives for their clients, innocence or guilt, into a critical examination of those legal tenets with a view to rectification. After all, who have been our lawmakers, but men and women with their own human shortcomings, often short-sighted, and acting in in the interest of some to the detriment of others as with apartheid, adult suffrage only for some, colonialism, et al?

Dr Errol N Benjamin

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