(Attorney-at-Law & Member of Parliament)
DELAY
It is now a recognised and notorious fact that the cancer of delay has long infected the administration of justice in Guyana. The Court system has not been able to dispose of the number of cases that come before it with the requisite speed. As a result, there is now a perennial back-log of cases. Cases which are now coming up for trial in the High Court were filed some ten (10) years ago – some even longer.

The consequences of this delay are catastrophic in every respect. Witnesses’ memory fade and some even die in the process; litigants die waiting for their cases to be heard and determined; some migrate; convicted prisoners languish in prison for years waiting for their appeals to be heard; lawyers die in the process; billions of dollars in cash and properties are tied up in litigation; economic ventures perish; investors become apprehensive and investments dry up and economic progress is stymied; people become frustrated and they take the law into their own hands with dire consequences.

There is always one certain result; a denial of justice.

While the maxim, ‘justice delayed is justice denied’, may have become hackneyed by its common usage over the last century, it has neither lost its temporal significance nor its truism. The ultimate objective of every judicial system remains the attainment of justice in accordance with the conscience, beliefs and philosophy of the society in which that system operates. For it is the public’s confidence and the willing submission of the people to the authority of the system which lubricate the machinery that administers justice in any society. It is this system of justice which acts as a fulcrum between anarchy and civil society. The delay which afflicts our present system is not only threatening the very foundation of the system but it is threatening the very foundation of our society.

Against this background, it is not only the responsibility of a government but its fundamental duty to implement such innovative changes that are necessary to bring a halt to this disastrous slide. In recognition of this obligation, the PPP/C promised in its 2006 elections manifesto and on the elections platform that it will implement appropriate mechanisms and necessary legislative reforms to treat with this tremendous problem of delay and to enhance the pace at which justice is delivered to the people.

In this regard the Government has successfully piloted several important new Bills through our Parliament all conceived and designed to address this question of delay in the judicial system. Recall the Paper Committal Bill which obviates the need for preliminary inquiries in the Magistrates’ Court and allows for the speedy committal to trial in the High Court in respect of certain types of offences. Recall the Plea Bargaining Bill which again not only dispenses with preliminary inquiries in the Magistrates’ Court but also allows for a guilty plea to be entered by the accused in certain types of offences almost immediately after the institution of the charge, thereby bringing to an end, a case in a matter of a few weeks that would ordinarily have taken years to be determined with an almost identical result. Recall also Time Limit For Judicial Decisions Bill which mandates judges to render a written ruling and reasons therefor within 120 days of the conclusion of the trial or hearing of the matter.

The latest of these legislative initiatives was the Summary Jurisdiction (Lay Magistrates) Bill which was successfully piloted through the National Assembly only on the 9th day of July, 2009.

This Bill, when enacted, can immediately remove from the Magistrates’ Court throughout this country a few hundred petty cases thereby allowing Magistrates to deal with the more serious cases.

On any given day, almost every Magistrates’ Court in Georgetown, Demerara, and Essequibo are burdened with hundreds of petty matters including offensive, profane and indecent language, noise nuisance, littering, disorderly behaviour, threatening behaviour, indecent exposure, etc, a number of traffic offences, including, vehicle overloading, unlawful parking, breach of traffic signs, uncertified vehicles, riding without helmets, window tints, unlicensed conductor, and a plethora of other offences with which a magistrate is required to deal and, worse yet, hold a trial in respect thereof when a plea of not guilty is entered.

Anyone who has an idea of how the Magistrates’ Court function, they would know that these petty cases are dealt with first by the Magistrates before that Magistrate proceeds to deal with the more serious offences. By the time the Magistrate disposes, not by trial but by guilty pleas and adjournments, only of these petty matters, there is hardly time left in the working day for that Magistrate to deal with the more serious offences.

The consequence is that there is a manifest injustice to those persons charged with serious offences, especially, those who are on remand and who have to go back to jail without almost nothing done in their matters for that day.

An examination of the schedule of the Bill would reveal that all these minor matters can now be dealt with by the Lay Magistrates.

This must bring colossal reprieve to an overworked and overburdened system.

PEOPLE’S PARTICIPATION
Another major impact of this Bill is that it, for the first time in the legal history of Guyana, involves the ordinary people directly in the administration of justice.

The word ‘lay’ means that these are ordinary citizens who are not legal professionals, who have no legal training and therefore are not appointed for their legal expertise but in order to ensure that the local community in involved in the running of the legal system in a real and substantive way.

Their close proximity to the community equips them with a better local knowledge of the intricacies and exigencies of the everyday life of the ordinary man when compared to a professionally trained Magistrate.

In other words, it is trial by one’s peers in the most practical and pragmatic manner and it is public participation in the actual administration of justice.

Speaking on the issue of people’s participation which Lay Magistrates bring to the administration of justice, former Lord Chancellor of England, Lord Irvine said: “… I have no plans for a wholesale replacement of the lay magistracy by stipendiary magistrates…Without the lay magistracy, there would be a justice system – but it would be much less ‘of the people, by the people, and for the people’.”

Often times, it is forgotten that under our constitutional structure government does not only consist of the Executive but also includes the Legislature and the Judiciary.

If true democracy means “government by the people for the people”, this must encompass the people’s participation in all three of the branches of government.

The appointment of lay magistrates, therefore, brings into the judiciary people’s participation in a real way.

In other words, this Bill brings a new dimension to our democracy it facilitates, for the first time in the legal history of our country the people’s participation in the judicial system at a high functional level and in a tangible manner.

It is no coincidence therefore that this Bill was first out mooted by Comrade Cheddi Jagan, a great champion of the people’s participation in every strata of government.

The rationale for the lay magistrate system has always been the community participation. In March, 1999, the Lord Chancellor of England, Lord Irvine underscored this important principle thus:

“Magistrates come from a wide range of backgrounds and occupations. We have magistrates who are dinner ladies and scientists, bus drivers and teachers, plumbers and housewives. They have different faiths and come from different ethnic backgrounds, some even have disabilities. All are serving their communities, ensuring that local justice is dispensed by local people. The magistracy should reflect the diversity of the community it serves.”

OUTLYING AREAS
In my humble view, the appointment of lay magistrates will have its greatest significance in the outlying areas of Guyana. In most of the outlying areas, especially the interior, Magistrates’ Court do not sit on a daily basis. Specifically in the interior, most Magistrates’ Courts sit once every three months for two (2) consecutive days.

The number of cases which accumulate over this three-month period, coupled with the pending cases are simply too overwhelming a workload for one Magistrate to deal with over a two (2) day period.

Lay magistrates can function within that three-month period to deal and dispose of the minor offences so that when the trained Magistrate arrives, he is able to deal with the more serious offences without spending time dealing with petty matters. This will have a tremendous impact on the speed with which cases are disposed of in those areas and will bring great relief to persons who are on remand for offences like murder and possession of narcotics but whose cases can only be heard once every three months.

It is in these areas where the community participation in the administration of justice to which I have earlier made reference assumes a peculiar importance.

It is well recognized that these communities, especially the Amerindian communities, have their own peculiar norms, rules, practices, culture and even language which may sometimes be completely alien to an outsider. A magistrate from urban Georgetown would never really understand the intricacies of those communities as a lay magistrate recruited from within those communities would.

RECONCILATION
This Bill, by its express provisions, promotes the concept of reconciliation in both criminal and civil cases where the lay magistrate is enjoined to encourage and facilitate amicable resolutions of matters within their jurisdictions as far as possible.

This is a progressive jurisprudential development which is in line with international modern trends that encourages the concept of alternative dispute resolution as opposed to confrontational litigation. As you may be aware, this process has already commenced in the High Court with the establishment of a Mediation Centre where cases are referred where there is a possibility of an amicable resolution. This Bill seeks to institutionalize that reconciliatory approach in the Magistrates’ Court.

This type of approach in my humble view is best suited for the interior and outlying areas where small disputes which, when not resolved at an early stage, end up into serious offences, sometimes even murder.

It is therefore crucial if these disputes can be nipped in the bud at an early stage. The lay magistrate system provides an opportunity to do so.

While the government recognizes that legislation is not the panacea of the dilemma of judicial delays, it recognizes however that legislative intervention is a definite part of the solution.

In another publication, I will attempt to highlight other aspects of the government’s response to this pandemic problem.