Soulette Gray, ContributorJamaica is a nation overridden by crime. We are a nation on the precipice of utter lawlessness and ruin, a nation whose most defining characteristics may soon become 'sufferation', 'murderation', alienation and frustration. The Jamaican justice reform process is supposed to be a vital instrument in pulling Jamaica back from the precipice.
The current Task Force's Preliminary Report which was presented as part of the conference in Kingston on May 10-11 is the latest product of Jamaica's long-term experiment with justice reform. While one can at least still hold out hope that the work of the Task Force will eventually prove to be of some value, whatever the Task Force may have achieved so far is difficult, if not impossible, to discern from the face of this report.
Overly general
Much of the Preliminary Report, including its proposals, is written at a high level of generality. For the most part, the level of generality is so high that it is often unclear what is actually being recommended, both in terms of substantive proposals and in terms of their implementation. This report also does little to address or even acknowledge the roots of Jamaica's justice crisis but, instead, it places most of its emphasis on procedural change. Procedural reform is, of course, an urgent matter, but even this should not overshadow Jamaica's most daunting justice challenges. A country could have excellent legal procedures but at the same time have the highest crime rate in the world.
Unfortunately, even the recommendations for institutional reform are unclear. For instance, the Preliminary Report calls for the creation of a 'Unified Court for Jamaica'. Even though this would involve profound, costly and time-consuming changes, the report does not actually provide a detailed structure for this 'Unified Court for Jamaica'. Since the Preliminary Report is not accompanied by any supplementary materials, one does not have the opportunity to view organisational charts setting out the current court structure and the structure of the proposed 'Unified Court for Jamaica'.
These charts are a prerequisite for understanding the ways in which personnel and resources at all levels would have to be realigned. Instead, the report provides only a rough idea of the proposed court structure, while at the same time introducing a list of '[o]ther potential reform options that require further study'.
case method approach
The Preliminary Report is written, using what is sometimes referred to as the 'case method approach', where a 'case' is a problem state of affairs that requires clear, well-reasoned and solution-oriented responses. This approach requires that a thorough analysis of the issues be undertaken, that al be formally evaluated, and that logical reasoning and expert evaluation be carried out to narrow the range of feasible choices to the one with the least risk and/or the greatest potential benefit. Instead, the report proposes feasibility studies after making reference to 'one possible model for a unified court with three levels'; it does not say whether this 'one possible model' is the most appropriate one according to a cost-benefit analysis. This vague suggestion is followed by a philosophical discussion about what a 'vision of a unified court structure with specialised divisions' could achieve.
Similarly, other than a general list of some core functions of, for example, a court administrator, no sample job descriptions are provided for the judicial and staff positions that would have to be adjusted or created as part of such a restructuring of the courts. These positions include the newly proposed Chief Parish Court Judge, the newly proposed elevated role for masters as procedural judges, the newly proposed elevation of Resident Magistrates to the status of Lower Court judges with tenure, and the new job function for the proposed Court Administrators who would assume some of the duties of the present Resident Magistrates.
In line with the approach generally taken throughout the Preliminary Report, the proposals for institutional reform do not include a step-by-step plan of action. An example of this deficiency can be found in the report's discussion of case-flow management. On the one hand, the Task Force points out at paragraph 32 that 'the introduction of civil procedural reform and case flow management has been hampered by inadequate attention to consequential issues such as training, change in court staff functions, and related facilities issues'.
Yet, with regard to case-flow management the report presents a non-committal and highly general 'to-do list' instead of the necessary 'how-to-do' list. It does not provide a road map for the Transition Team with instructions like,for instance, 'First you need to do 'A', then you need to do 'B', then you have the option of doing 'C', 'D' or 'E' depending on whether 'X', 'Y' or 'Z' occur'. The report instead says things like this: '[T]he Task Force proposes that consideration be given to the establishment of a multi-track system offering a menu of choices among procedural tracks or routes along which individual cases, once commenced, can progress through the system'(paragraph 579). Unfortunately, the report leaves this so-called 'menu of choices' to the reader's hungry imagination.
The Preliminary Report often mentions approaches used in other jurisdictions like Ontario and the United Kingdom, and it is certainly hoped that the authors did more than just glance at a few written sources from those jurisdictions as part of the process of developing their recommendations. It is, therefore, disappointing that this report is not accompanied by a bibliography and a complete list of references that would enable the reader to make her or his own assessment of thes approaches and the extent to which they may apply to the Jamaican context. The report also fails to make any reference to the many submissions to the Task Force that were made by private organisations and individuals.
Shifting of responsibility
The authors of the Preliminary Report seem to have attempted to shift their responsibility to provide detailed and actionable step-by-step recommendations. For example, at paragraph 585 the Task Force asserts that 'It is anticipated that the JJSR Court Administration Project will make detailed recommendations concerning how to achieve the general proposals set out in this Preliminary Report'. Yet this approach is inconsistent with the Task Force's mandate as set out in the Government's 'Jamaican Justice System Reform Project Strategy And Operational Plan'. This document requires the Task Force to 'inquire into the state of the justice system on a comprehensive basis and develop strategies and mechanisms to facilitate the modernisation of thejustice system so that it is better able to meet the current and future needs of Jamaicans'.
This approach is also inconsistent with the Task Force's mandate as set out in the Jamaican Justice System Reform Consultation Document, which informs the people of Jamaica that 'The JJSR Task Force is mandated to explore reform options for both the civil and criminal components of the justice system'.
Quite apart from the virtual absence of strategies and mechanisms to facilitate the modernisation of the justice system, it is the lack of emphasis on, or even serious acknowledgment of, the social roots of crime that is perhaps the most disappointing aspect of the Preliminary Report. For instance, even though the report appears to accept that broken relationships are an underlying cause of crime it is surprisingly silent on just what these broken relationships actually are. Silence is hardly a basis for substantive plans for reform. How can one even begin to find ways to heal these broken relationships and thereby root out a major cause of crime if one fails to demonstrate any knowledge of the identity and nature of these relationships?
Disjointed
The Preliminary Report is disjointed and many of its key components appear to be missing. For example, the report introduces proposals related to justice and peace, such as specialised and problem-solving courts under part 5, and then introduces proposals related to criminal law reform under part 7. Unfortunately, no attempt is made to relate these two segments to each other. Certainly no attempt is made to present an overall picture of how these two proposals could potentially support each other. Instead, they are presented in an isolated and independent manner.
Another similar example would be evident to the reader of the entire Preliminary Report. The report suggests under part 6 at paragraph 310 that '[T]here could be a linkage with the Community Legal Contact Counsellor who would provide assistance to people with family law problems (see the proposal in Part 4 on family court outreach)'. But when one reads part 4 one notices no information regarding any Community Legal Contact Counsellor.
Given the fact that the Task Force's consultation document stresses that the Task Force is 'particularly interested in commentary on Court and Court-connected resolution processes and how these may be addressed to bring efficiencies in the delivery of justice for all', it follows that these last two examples are serious flaws in the Preliminary Report.
Task Force mandate
In addition to the fact that its mandate requires it to produce a comprehensive reform plan, the Task Force itself appears to understand that in order to be effective its report must be a comprehensive reform plan and, in its own words, the Task Force laments at paragraph 33 that: 'The experience with justice reform efforts to date highlights the need for a comprehensive reform plan and sustained consistent implementation. The absence of a coherent institutional policy framework has generated a lack of clarity on what the problems are and how they should be addressed. The result has been ad hoc policymaking as well as inadequate funding support and piecemeal implementation that have undermined the effectiveness of planned reforms'.
The irony is that the Preliminary Report follows in this tradition because it is emphatically not 'a comprehensive reform plan' and it lacks 'clarity on what the problems are and how they should be addressed'. Furthermore, the report advances very few ideas on how justice reform could be funded without further borrowing from international financial institutions in order to mitigate the potential problem of 'inadequate funding support'. This is a serious problem, considering that Jamaica can barely pay its bills.
May the Task Force and our political leaders at last take up the challenge of serious justice reform before our country finally falls off the precipice.
Soulette Gray is a Jamaican-Canadian attorney-at-law in Ontario, Canada, andthe principal of SOULette Gray Law Office (www.soul-law.com). She can be reached by email at soulette@soul-law.com.
