Contribution by Philip Davis, MP
16 June 2010
I want to be clear at the outset:
The Progressive Liberal Party supports this legislation which intends to place more judges on the Bench to reduce the backlog of cases. We support any effort that can assist in the fight against criminal activity. Crime and the fear of the crime have our nation in a choke-hold. If we do not wrestle ourselves out if it, anarchy is but around the corner!
That being said, the FNM Government must be admonished for their lackadaisical and partisan political stewardship of our judicial system to date. Through systematic, politically motivated action, they have in just three years:
• Undermined morale at the AG’s office
• Undermined public confidence in the Judiciary
• Questioned the competency of Bahamian lawyers
• Sullied the respectability of the Department of the Attorney General
Yes Bahamas they have been busy! All of this government’s actions to date have exacerbated the problems in our judicial system! That side likes to shout “Late again”, but today I will show you how you are “Wrong again”!
The most glaring mistake of this “wrong again” government is the game of Musical Chairs that they have been playing with the position of Attorney General. In just three short years, the Bahamian people have had four Attorneys General! Fresh out of the gate we started with Sen. Clair Hepburn, we then leapfrogged over to then Senator Michael Barnett, from Sen. Barnett we went to the honourable member for St. Anne’s and from him we end now with Senator John Delaney. My God man, what you all was doing? In dominoes we would call that the popcorn seat – no one stays down, everyone is move!
The serious implication though is how is the department supposed to function when it can’t settle on a Leader? What message does that send to the staff at the AG’s office? How does this motivate them?
The average life span of an Attorney General since 2007 has been less than nine months. By the time the AG’s staff finally get in sync with their boss, they find themselves having to start all over again. What absolute nonsense! Wrong again!
The reality is that every leader brings in at least nuances in style and process. The revolving door approach to this critical office in the fight against crime has itself been a crime. In what is perhaps the worst struggle against criminality in this nation’s history how can we wage a sensible offense when we keep changing our quarterback?
Leadership comes from the Top. If the Leader is not steady and consistent then no sensible government can expect their subordinates to be! Wrong again!
As I see it, the AG’s office serves a primary role in a healthy justice system. While I support the legislation, the real issue is NOT the number of justices to hear a matter! The real problem lay in the AG’s office ability to bring matters to the Courts in a timely manner. Over the past three years Justices have told me that they have no cases to try. They and their support staff are there, waiting for something to do, but because this government has turned the AG’s office upside down, cases are not being prosecuted efficiently.
Consider that trials are normally scheduled to start on Monday. Monday comes and the AG’s office is not ready, trial is rescheduled for the following Monday at best. On that single case you have already lost one week, but because no other case has been fixed Judges have no cases to try for that entire week. Time and salary gone!
Add to that the jury. The Jury panel for each criminal court are 48 persons. There are 3 courts sitting 144 persons. Imagine taking time away from your life to discharge your civic duty and being told day after day and week after week that you gotta come back because someone or the other can’t proceed? This is frustrating and kills the desire for anyone to be on a jury.
In order for there to be any increased efficiency in the administration of justice, The Bahamas needs a consistent Attorney General. This is not a popcorn seat and the government must take it seriously!
The FNM has also hurt the justice system by appointing Justices that wear their political affiliation on their sleeve. I do not call into question the ability or objectivity of any of the men and women that this government has appointed – on that point I want to be clear. The government though, in moving people directly – with no cooling-off period – from the Cabinet to the Judiciary contributes to level of confidence that the public would have in the judiciary and good governance. In so doing they have committed very dangerous acts and placed judiciary in an unenviable state. Sadly, yet predictably the FNM got it wrong again! The judiciary is required now by its own conduct to dispel any notion that undermines public confidence.
Apart from the punishment that the Free National Movement has inflicted on the administration of justice by what they have done, they have done far worse in what they have not done. Bahamas, they not only have sinned against you in thought, word and deed and by what they have done but more so by what they have left undone. Any teacher will tell ya, an answer left blank is marked wrong! To be fair, I don’t want to judge them by what I would have done or what they should have done…I will judge them by what they promised to do.
In the 2007 Manifesto beginning on page 4 under the title, “Administration of Justice”, the FNM in seeking office made 18 specific pledges in order to, and this is there claim:
To provide our country with the efficient, competent, functioning judicial system required for an orderly society and for continued economic growth
In going through the 18 pledges, I noted that they have fulfilled only 1. And they got the nerve to call us “late again”. Look at point 13, “Complete the Magistrates’ Courts Complex on Nassau and South Streets”. Lucky for them that was started under the PLP or they wouldn’t have had a single one finished!
The point simply is though, if you state that in order to provide our country with an, “efficient, competent, functioning judicial system” requires these 18 things and you only did 1 of them, then surely you have FAILED to provide our country with an, “efficient, competent, functioning judicial system”.
The government has gotten in the bad habit of explaining problems and not claiming any part in them. The record is clear. In there three years in office they have failed to address the real issues of this problem and continue to exacerbate it.
What you offer is very much like band aids being placed on festering wounds. The problem, as I have said is much bigger than these amendments. The entire system is in on life support and you bring band aids?
While these pieces of legislation then, on their own are laudable their ability to reduce the backlog of cases is constrained by the system itself. You have to fix the system.
These pieces of proposed legislation plan to increase the number of Supreme Court Judges from twelve to sixteen, an increase of 33%. The proposed increase of Judges on the Appellate Court will take it from five Judges to six, an increase of 20%. Time will tell if the increase is sufficient and I guess we will see if the government has planned for the necessary support for the additional Judges – venues, facilities, staff and materials. Curiously though, the government has stated no plan to institute Supreme Court nightly sittings. Will we make use of Saturdays for sittings?
If we really want to reduce the massive backlog of cases, should we not use all available in a day? Do we have the trained support staff in place? If not how does the government plan to go about getting them in place in time for the additional Judges to be able to function?
Isn’t it time we reconsider the cost for dealing with civil matters particularly the adjudication of business relationships gone bad? Tax payers share the cost for dealing with criminal activities involving citizens, personal or corporate, as a means of meting out justice in matters involving taxpaying individuals.
When a boardroom matter gets to the court this should be treated differently. Many times these differences result from personality differences not criminal activity. The parties involved should pay the costs incurred by the government. (IS THIS A LEGITIMATE COMMENT?)
Is the police department provided with the trained manpower and resources to respond to the increased volume of matters with which they will have to deal?
Is the Attorney General’s office provided with the manpower, facilities and material required to deal with their anticipated increased workload?
Is the cultural appreciation by foreign Prosecutors of things Bahamian in place?
Presuming that many people facing criminal charges will be found guilty and sentenced to jail time, does the government have a plan for more jail space as we all know that the present facility is overcrowded? If people are let out of prison to house arrest or sentenced to house arrest, do we have the police manpower to manage the process?
Legislation was enacted to institutionalize plea bargaining as a mean to impact the back log of criminal cases. Information received from counsel involved in day to day criminal matters has said that this has been abject failure as the process is cumbersome and the line of authority for decision making blurred perhaps you may wish to inform us as to how you view results of this legislation. – wrong again!
Legislation was enacted to reduce the jury size from 12 to 9 in non-capital cases. Here again my information is that this has had no impact on the back log because of the state of the A.G. Office. If cases are not ready to be tried then the jury is not being engage and this has been the problem. Perhaps, again, you may wish to advise of how many cases have been disposed of since the enactment of this piece of legislation. – wrong again!
What effort has been made to encourage citizens to play their role by cooperating for service in the jury pool? When is the public relations effort going to start?
What about the process of getting the accused to court on time? The traffic on the roads in the east is already a serious challenge to prisoner transport. Maybe there is a plan to set up courts at the prison itself?
These questions all point to the need for the entire system to be overhauled in order for justice to be mete out swiftly. The government should be ashamed for bringing half-measures when we are in a crisis.
Sadly, this is a dismal failure on the part of the government and a disservice to the people. Bahamians have the right to expect that legislation brought by the government will in fact deal with the problems and not just the symptoms.
The solution begins with the prevention of crime and the enforcement of laws by the Police. This is followed by appropriate levels of skilled staff to prepare and present cases in court. There has to be sufficient numbers of courts and Judges. There has to be suitable rationalization of the numbers of persons who need to serve on Juries with fewer required for non-capital cases. Courts have to be run efficiently so that when litigants show up for a scheduled trail it begins on time on the scheduled day.
We are in crisis and we must deal decisively, but does bringing in a foreign Chief Prosecutor and more foreign Judges equate to action?
Mr. Prime Minister, stop playing musical chairs around the issues and deal with the problem. Overhaul the system once and for all so that Bahamians can have confidence once again in our Legal System! Don’t be a coward! Lately you have become famous for saying one thing and doing another.
We enacted legislation to modernize the arbitral process i.e the Arbitration Act and the Domestication of the New York Convention on arbitration. There is now a chapter of the Chartered Institute of Arbitrators in the Bahamas and this process will clearly alleviate the burden on the civil side of the courts. Have these laws been brought into force? Need to encourage civil disputes to be resolve through arbitral process etc.