Courts don’t have to be archaic

After a hiatus of some months, during which we had been working through the Government Task Force on the specific areas of Women and Children and Lands, we had the first meeting this year of the forum inclusive of Non-Governmental Organizations which has been trying to help with implementation of the Human Rights Action Plan.

We have throughout had helpful contributions from the Government Analyst’s Department, who had explained problems they faced. One was claims that they had not submitted reports when in fact they had done so, and another was that, after they had travelled to distant locations, they were told that the prosecution was not ready and had requested a postponement. We had therefore suggested at a meeting of the Task Force that the Secretary to the Ministry of Justice institute regular meetings, at which government agencies responsible for cases could coordinate work.

The Secretary had initiated such meetings, though not as often as I would have liked, and we were told this time round that they continued and had been helpful. Unfortunately she was not in a position to ensure a positive response from the Judiciary, and indeed she had been ignored when she had written to the Chief Justice suggesting a committee to look into sentencing policy and coordinate action in this regard in line with government policy of reducing the number of those remanded.

Government Analyst

I hope now that the new Chief Justice will take action on such matters, given his understanding of the problems inasmuch as he was involved in the Task Force and indeed in having the Plan itself approved by Cabinet in the days when he was Attorney General. But meanwhile we were confronted with yet another problem, which I also hope he and other agencies will deal with.

This is the fact that many reports sent by the Government Analyst seem to disappear. They are sent by registered post but, when a representative goes to court, they are often told that the report is not available. When we asked whether this was a common occurrence, the answer was that this happened in about 50 percent of cases. At our earlier meetings we had thought such lapses were because of carelessness, but the impression given now was that these losses were deliberate.

The police are informed when the reports are sent, but their systems of information retrieval are not satisfactory, and they are in no position to pull up the Courts for any lapses. It was suggested that the Defence should be kept in the loop, but since it is likely that disappearances of such reports occur because of Defence action, this will not serve much purpose.

Clear guidelines

Unfortunately it seems as though this phenomenon has not been highlighted previously, and there are no statistics of vanished reports, in particular whether there are particular Courts where this happens frequently. Given the confidential nature of these reports, and the paucity of staffing at the Department, records are difficult to keep.

This is yet another reason to move swiftly on the Duty Attorney scheme which has been proposed in the Action Plan. Though various objections have been raised about this, the Minister of Justice declared in Parliament recently that it would go ahead. It will be necessary however to lay down clear guidelines about the responsibilities of such Attorneys.

In addition to ensuring adherence to judicial and human rights norms in the treatment of all those taken in by the police, the Attorney could also help with monitoring the work of Courts in relation to the input of the various government agencies dealing with crime. With regard to the work of the Government Analyst, the Duty Attorney could be kept in the loop about Reports that are sent in, and could supervise the safeguarding of such reports and any samples, as well as their production.

I should note that corruption in the Court system is nothing new. My father told me recently of a man who had been acquitted because the eyewitness who had seen him commit the crime said this had been by the light of a lamp. When the lamp was produced in Court, the Defence lawyer asked that it be examined, and it turned out to have an unused wick. The accused was duly acquitted, but the lawyer concerned had later asked him how this had been achieved. It turned out that he had given Rs 2 – a great amount it would seem in those days – to the Fiscal.

Stopping such practices will not be easy, but the lack of coordination between government departments, and the failure to keep records systematically, contributes to perversion of the system. Once again then it would help if clear guidelines were laid down, about the procedures to be adopted, with the Judicial System providing for monitoring of these, and taking action when aberrations occur.

Court system

Such monitoring requires the Courts to work together with governmental agencies, which some in the Court system may object to, on the grounds that their independence must be guarded. But they must realize that independence is about decisions, not about process. The legal process requires coordination of the different branches of government, and when this does not happen, it is the people who suffer.

One final point about the work of the Government Analyst’s Department is worth noting. Though they have begun to catch up on the backlog, caused by an Voluntary Retirement Scheme that led to many leaving without replacements, there are still thousands of matters outstanding.

Given that many of these are in relation to drugs, we should ponder at the folly of a system that expends so much money and wastes so much time on what are deemed offences, but which should be dealt with through counseling and rehabilitation, not the full force of the criminal law. I can only hope then that the reforms in this regard the President has called for will be formulated and implemented soon.