Thursday Apr 26

Commentary: Judicial activism silent in Trinidad and Tobago - My Write Part 1

By Herbert Volney

I listened attentively to the pastoral offering in the homily to the faithful at the St Joseph Roman Catholic Church on Palm Sunday.

Herbert Volney grew up in Fort Lane, Roseau, was schooled at St Mary's Academy, is a graduate of the UWI and the Hugh Wooding Law School. He is a jurist and retired High Court judge in Trinidad and Tobago, a former elected Member of Parliament (St Joseph) and former Cabinet Minister of Justice in Trinidad and Tobago.
It struck me that I must pick up my juridical pen again and write for my God out of fear of his wrath if I were to remain silent a moment longer on the issue of systemic injustice in the land.

To get directly to the point, there are over 500 murder cases in our court system awaiting trial. Additionally there are hundreds, literally hundreds, of other cases involving heinous crimes awaiting trial in respect of which accused persons, untried for many, many years have been incarcerated, unable to find a surety to support bail, and literally deprived of liberty without due process of law.

I have been directly involved in the delivery of criminal justice in various institutional capacities since 1979 when I took up an appointment in the Office of the Director of Public Prosecutors. On my way to serving as minister of justice I had served for many years as a trial judge on a daily basis at the Criminal Sessions at the Assizes. I write as few can for my time in the trenches is matched by few.

And this is why I once more feel impelled to write on this national disgrace of injustice suffered upon the unconvicted who are forced by inefficiencies in the malignant criminal justice system to spend illegal impositions of incarcerations at times in excess of likely sentences had the system been functional.

What is particularly heart rending is the callous dismissal of the problem by the Judicial Committee of the Privy Council, our highest court, in its recent imposition of adjudicative rank imperialism in the infamous case of Steve Ferguson and Others v The Attorney General of Trinidad and Tobago.

That decision missed the point argued that Section 34 of the Administration of Justice (Criminal Proceedings) Act 2011 was enacted to confront the injustice suffered by hundreds of accused men in Trinidad and Tobago who have been stuck in a failed criminal justice system that exacted punishment without trial and conviction.

I was the architect of the statute and the now infamous section that was enacted by all legislators who participated in the debate and voted for it. The clear instruction of the Parliament was to introduce a statute of limitations in criminal causes but for excepted categories of crime in order to free up the clogs of backlog comprising old cases.

One would have assumed that the parliamentary debates would have enlightened these five old English lords in London who seemed to have forgotten that in the appeals of the Muslimeen, and of Brad Boyce, their own predecessors in title had ended prosecutions after the ten year mark as unjust to be allowed to be proceeded with.

Knowing that there could be no further appeal, these five judges in one adjudicative blow set back long standing principles set by their very body establishing precedents supporting the protective procedural provisions enshrined in the constitution. The judges of that bygone era must have turned in their graves at this mockery of their concessions to the oppressed in recognizing fundamental human rights!

Never have I seen five judges as they did distinguish judicial precedent set by their own to justify a clumsy decision that they will have to correct, hopefully, in my lifetime.

Little have I seen our final court rule in such utter ignorance of the prevailing conditions in our criminal justice system for want of an understanding of it. Surely, the argument I made in piloting the measure alluded to the failed criminal justice system that was, and remains, unable, by dint of backlog, to avoid injustice, by delivering justice to the accused.

I gave state attorneys a statement rationalizing my piloting of the measure and there was no reference to this primary source of evidence. Remember that it was the minister of justice, and not the attorney general, who had piloted the measure and it's very source of raison d’être. But it was an affidavit of the attorney general that was advanced by state lawyers because of conflict.

The obvious result is that the stream was contaminated right through the case and the majesty of the justice was not saved in the end by the English lords wholly oblivious of the prevailing conditions on the ground. It seemed to me that secondary evidence had its way right through the system leading to a judgment in perpetuum of our criminal justice woes.

I was aware of the problem of the insurmountancy of the chronic backlog and the silence and failure of leadership at all levels to address it. I stood alone as I tried to confront it, for I was confronted on a daily basis for many years on the bench by the stench of injustice and by the cries of those, and their helpless families, for the slow decay of hope in the spirit of the accused dying in incarceration and awaiting their justice.

But few understood it, or cared to understand it, at the level of the Cabinet. The judges know of it. The Chief Judge knows of it. Politicians know of it. The DPP knows of it. The Law Association knows of it. So then why the silence as our own fellow human beings, citizens, fathers, mothers, brothers and sisters remain locked up for so many years without a trial and with the wait getting longer every single day.

I am moved by my fear of God to write about it so that the right thinking among us, the people of God, might ring the bell, much like me, until it becomes a chorus of rebuke for this injustice reigning unchecked in the land of the Trinity.

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