By Jomo Sanga Thomas
If you are poor and black, especially of a darker hue, chances are you are going to face a trying time, if and when you encounter the oppressive machinery of the state.
The beating of the accused is regular, their pleas are disbelieved, even in the face of compelling proof. As is frequently the case, the court does not bat an eye.
Or a judge may give an accused a tongue lashing for wanting to engage in the most basic bodily function as going to the bathroom to relieve himself. How dare the accused make such a request when the court is addressing the juror!
Depending on who is the victim, the police may refuse to arrest and charge an accused for shooting his girlfriend. Reason: complainant is disadvantaged; the accused is from the moneyed class.
But we are getting ahead of ourselves.
The Ministry of Legal Affairs is so thoroughly demeaning and disrespectful of the rule of law that its actions can only be described as gangster. Lest we forget, this ministry is led by PM Gonsalves who, before he climbed in the high chair of political office, had a stellar and successful career as a crusading lawyer championing the rights of those, to whom access to justice and the rule of law mean something.
Orders of the law courts are belittled and or condemned. Worse, they are routinely disrespected and disregarded. In SVG, we confront the sad reality where a High Court judge ordered the government to pay $500,000 in damages. The interest consequent to its failure to pay is now more than the initial award.
The government routinely refuses to pay damages or cost. The brazen nature of the government’s actions has reached the point where its lawyers don’t bother to file papers, meet deadlines or comply with court orders.
When the inevitable comes, and the government’s actions are struck down as arbitrary, irrational and illegal, the government does not bother to ask for a stay of the court’s decision.
Letters, emails and phone calls to the relevant authorities are neither acknowledged nor replied. High government officials sit back, huffing and puffing like mighty lords, daring the aggrieved party to do something that forces change or brings relief.
Compounding the problems for the less fortunate among us is the ways the judicial system operates. Justice delayed is justice denied. This maxim is brought to life every day in court.
In many instances, the magistrate courts stand as houses of horrors rather than places that dispense justice.
One magistrate had a young woman stand next to the defendant box because, according to him, she was too beautiful and “pretty skinned” to stand as an accused. Another magistrate convicted a young rural man, virtually flipping the burden of proof from the prosecution to the defendant. He had to go to the Court of Appeal to seek justice. Yet another dealt with a case with the accused standing outside the door of the courtroom.
All too often, cases in magistrate courts are decided on a whim rather than on legal principles. It is a regular occurrence for a magistrate to find someone guilty with the explanation that the police version of events is believed. The Court of Appeal has repeatedly ruled that rationale, without more, is an insufficient basis to ground a conviction. Many of these decisions stand because indigent defendants do not have the financial wherewithal to appeal a court’s decision.
The issue of bail presents a big problem. The right to bail is only meaningful if it is affordable. However, for the simplest of offences, bail is set in the thousands of dollars. The result is that many persons cram the prisons because of their inability to make bail.
An additional problem arises when the court orders a person adjudged guilty to pay a fine forthwith. The Court of Appeal frowns on forthwith orders. It demands that judicial officers conduct a means test before making such an order. Many poor defendants, convicted for minor offences, needlessly spend time in jail because the court refuses to grant them time within which to pay the fine.
Safeguards to justice are lacking. The remand time before trials is too long. Accused persons wait four or more years for their day in court. Because remand time is counted differently than jail time, the longer a prisoner is warehoused on remand, the more time he spends in prison.
There is also a lack of consistency in sentencing. Two convicted persons, on similar offences with similar facts, could end up with sentences that differ in years even where judges are required to follow guidelines.
Upon conviction, a prisoner may decide to appeal the decision of the court. Sadly, many end up serving their entire sentences without being able to pursue their appeal. Prisoners lucky to secure the transcript of the trial after years of incarceration suffer when the calculation is made for remand time.
The Registrar’s office is notoriously slow, one is tempted to say lethargic, when it comes to producing transcripts. But blame cannot properly be laid at the desk of the Registrar and her staff. The Ministry of Legal Affairs stubbornly refuses to hire more transcriptionists so that the record of appeal can be prepared.
Despite the presumption of innocence, it is a hard thing to be a defendant. Depending on the crime, a long gloomy shadow follows the defendant. The public and jurors appear incapable of suspending judgments until all of the facts are known. This problem is fuelled by talk radio and social media. A criminal defendant is also prejudiced with the sometimes unconscious prejudices of judicial officers. We glean these biases from how facts are emphasised or relayed to the jury.
The poor, marginalised and disadvantaged sections of our society endure a very stressful existence. Unless creative solutions are found to address their confrontation with the coercive arm of the state, the quest for justice will remain an elusive dream, and the rule of law will continue to face challenges.