A.J. Nicholson, Contributor
Nicholson
LAST TUESDAY, the Jamaican Supreme Court delivered its verdict in the Kraal case. Various persons have made comments on the matter, and there have been a number of institutional responses as well. I do not believe it is appropriate for me to second-guess the verdict of the jury in that case.
More than that, it would be singularly inappropriate for me to seek to cast aspersions on the final decision reached by the jury.
The members of the jury in the Kraal case heard several weeks of testimony, and saw the various witnesses on the stand. It was for those jury members to form their own views on the evidence, and to bring a decision based on their understanding of the evidence.
That is how our jury system works. It would be wrong for me, as Minister of Justice, to criticise the jury in a particular case when they have reached their decision following due process of law.
SEPARATION OF POWERS
The Jamaican Constitution upholds the principle of separation of powers between the Executive and the Judiciary; this principle does not exist only for uncontroversial cases. Perhaps, moreso, it exists to ensure the rights of all Jamaicans. Judges and juries must be left to undertake their work without external interference.
Significantly, the Kraal case has stimulated, or re-stimulated, discussions on aspects of the justice system. I welcome this development, for it helps us to keep questions of justice and human rights in the forefront of our thinking. It may well be, for instance, that this renewed interest in the workings of the justice system will help us to overcome some of the well known challenges that we face.
'INFORMER FI DEAD'
For example, in various communities, the criminal justice system is hurt by the idea that 'informer fi dead'. As a society, we cannot have justice where witnesses remain unwilling to come forward to participate in the judicial process.
I know that in some situations, social circumstances make it difficult for some persons to give evidence, but I would, nonetheless, implore our citizens to use all the avenues available for giving information to the police. The Government has in place a witness protection programme, and there are methods of giving information to the police that ensure confidentiality.
In addition, renewed interest in court-related matters may help to increase efficiency in respect of the jury system. The learned Chief Justice has recently noted that some of the backlog in the justice system can be explained by the fact that so many of our citizens are reluctant or unwilling to serve as jurors.
Citizens need to be reminded, therefore, that the jury system cannot work without healthy participation from Jamaicans in their private capacities. Too many of us refuse to participate and then turn around and unthinkingly bemoan the backlog in the justice system.
THE JURY SYSTEM
The Chief Justice has also mentioned that if more trials were allowed without a jury, this would help to reduce delays in the justice system. With his usual acuity, the Chief Justice has also pointed out that there is some degree of inconsistency as to the trials that are subject to juries rather than to the judge sitting alone.
The issues raised by the Chief Justice require attention by the society as a whole. I believe that trial by jury is an important component of our criminal justice system, and will argue for the retention of the jury system in some cases.
In view of the backlog of cases, however, the wider society may well wish to consider whether some cases now required to go to a jury trial should be open to decisions by High Court judges only. This would certainly reduce the possibility of delay arising from the fact that jurors are sometimes unavailable. I note that the Jamaican Bar Association is against the abolition of the jury system this is in keeping with my personal perspective.
Of course, I accept that there are deficiencies in the justice system and the wider public will understand that some of these deficiencies arise from resource constraints faced by the Jamaican state. At the same time, however, I would call on the various, and vocal, members of civil society to assist in bringing about improvements.
IMPROVEMENTS
In recent years, there have been improvements in the system. For example, the High Court has been computerised, and that process is now being undertaken in the Resident Magistrates Courts.
Similarly, several High Court judges some of whom have been subject to unfair criticism in recent weeks have been prepared to forego their well-earned summer recess to consider sentencing matters arising from the abolition of the mandatory death penalty by the Judicial Committee of the Privy Council in the Lambert Watson case.
The judges have given their services without fanfare; when we talk about the state of the justice system, we should also keep such considerations in mind.
Finally, the Jamaica Labour Party has indicated that it is deeply disturbed about the Kraal decision, and argues that the justice system is in crisis (presumably in light of that decision). I disagree entirely with their assessment, and would only add that the JLP should be careful not to play partisan politics with justice. The policemen in the Kraal case were entitled to the presumption of innocence just as everyone else is under the terms of the Jamaican Constitution. It we start whittling away the constitution safeguards for one set of Jamaicans, we will eventually destroy them for everyone.
The society has important issues to address with respect to human rights abuses. But let us not reduce the effectiveness of our national debate with politics as usual. Mr. Chuck, at very least, should know better.
A.J. Nicholson is Minister of Justice and Attorney-General.
