Of judge and jury
In a democracy, the consensus of a group ought to be treated as superior to that of an individual. (online)

I am a firm believer in the wisdom of the crowd. And for that and related reasons, I am doubtful about recent calls for the abandonment/sidelining, relegation — apply whatever words which mean reduction/trimming — of jury trials and replacing them with trials by judge alone or bench trials.

I am very concerned about headlines like this: ‘Chief justice renews push for end to jury trials’. The Jamaica Observer news item of January 8, 2022 said, among other things: “According to the chief justice, with trials being ‘pushed further and further back’ because of the suspension of jury trials, because of the vagaries of the pandemic, ‘it is just a matter of time before someone is going to make the case that their constitutional rights to a fair trial within a reasonable time are being violated’. ”

In this context, the chief justice, while batting for jury trials to be struck out altogether, said: “The executive and the legislature really need to revisit this question of jury trials, and if they are going to retain them, then you have to have all the financial and material resources necessary to make it work in the context of a pandemic because it is going to be costly.”

I have a great deal of respect for Chief Justice Bryan Sykes. Since taking office, he has made some very good changes to enhance efficiencies, primarily through increased use of technology. Lawyers tell me that Justice Sykes has brought an increased sense of urgency to clearing the backlog of cases in the court system, which has, among other things, delayed and effectively denied justice to especially the poor and dispossessed and slowed investment in this country. Yes, a court system which cannot deliver judgements in a timely manner does retard investor confidence.

SYKES...the truth is, there is nothing to suggest that jury trials are an inherent better quality of justice than bench trials (Photo: Philp Lemonte)

The Global Competitiveness Report (GCR) published by the World Economic Forum identifies the strength of institutions as the first of its 12 pillars which determine the level of productivity, competitiveness, and prosperity earned by an economy. The courts of a country are among the most important institutions. Strong institutions are the oxygen of democracy says the GCR. I agree!

DEMOS

The word democracy has its origins in the Greek language. It combines two shorter words: demos, meaning whole citizen living within a particular city-state, and kratos, meaning power or rule.

The wisdom of the common people is sacrosanct in a democracy. Most of us accept — and I suspect Justice Sykes is included — that the common person is wise enough to choose who manages the affairs of his or her country. Therefore, if we trust the common man to decide at intervals who governs, why shouldn’t he also be trusted to sit on a jury and deliberate on matters of justice which affect his peers?

Justice Sykes in the mentioned article says: “The truth is, there is nothing to suggest that jury trials are an inherent better quality of justice than bench trials.” My cursory research on this subject suggests that Justice Sykes is being accurate here.

However, his accuracy on this point does not negate the fact that the consensus of combined responses of a group is superior to those of an individual within the group — the wisdom of the crowd.

NO FURTHER CUTBACKS

I am well aware that some matters are already tried by a judge. I also understand the argument about the novel coronavirus pandemic and its debilitating impact on trial by jury. But the pandemic is temporary, the abolition of jury trials sounds permanent.

I am not going to debate the pros and cons of trial by jury versus bench trial. I am more concerned that, in our rush to fix one problem, we may well be throwing out the baby with the bathwater. I think we should concentrate on fixing the problems which threaten the viability of trials by jury.

Juries are selected from the voters’ list and some people are exempt because of their occupations. Well, since that approach was inaugurated, dozens of new occupations and professions have come about and dozens more are mushrooming yearly. This is a low-hanging fruit. Also, societies are moving towards greater inclusion of citizens in decision-making processes, not the reverse. I believe greater inclusion is especially important for small island developing states (SIDS), like Jamaica, which are also emerging democracies.

NO, TOM!

Tom Tavares-Finson, in my view, is one of the finest legal minds in this country. If I were to ever have certain matters in court, I would hire one of three lawyers — Peter Champagnie, Tom Tavares-Finson, or K D Knight.

I, however, part company with Tavares-Finson regarding The Gleaner news item captioned: ‘Jury should stay out, says Tavares-Finson’. The news story said, among other things: “With trial by jury not entrenched in the constitution, Tavares-Finson said that there is an urgent need for the abolition of such trials to have cases tried more speedily.”

He added that he was aware that some of his colleagues at the private Bar do not support the abolition of jury trials, but said that, because of his experience, he is prepared to support trial by judge alone as long as they are competent.

He said that having been in a number of bench trials, he was satisfied that the results were no different than they would have been if the accused were tried by a jury.

Let this sink real deep, “ …as long as they [judges] are competent”. I would rather take my chances with a jury any day than a single incompetent judge. If nothing else, the law of averages would be on my side.

TAVARES-FINSON...the COVID-19 experience has moved me from being sceptical about bench trials and the elimination of juries (online)

Tavares-Finson also raised the matter of the pandemic in the mentioned article: “The COVID-19 experience has moved me from being sceptical about bench trials and the elimination of juries.”

With all due respect to Tavares-Finson, the pandemic was not the first pandemic in modern times, and doubtless, it will not be the last.

Do we gnaw away the foundations of important institutions each time we have a pandemic? Or do we strengthen our institutions to withstand the inevitable shocks of future pandemics?

I think the latter is the better option.

We are also told in the mentioned news item that “fewer than three per cent of the 4,500 prospective jurors summoned turned up for duty last Wednesday”. There are remedies for these actions.

A TICK FOR THE GOV’T

On the subject of remedies, unemployment, a long-standing bugbear, is being remedied.

Recently, the Statistical Institute of Jamaica (Statin) reported that the unemployment rate fell to 6.2 per cent as at January 2022, the lowest rate in Jamaica’s history. Statin also reported that there were 67,000 more people in jobs in January 2022 than in January 2021. This is happening in the midst of the labour force participation rate increasing to 64 per cent, which is just marginally behind the pre-COVID-19 labour force participation rate of 64.5 per cent in October 2019.

As soon as this bit of good news became public, some took to social media to try to discount its importance. “Oh, less people are looking work,” some bellowed. “Cho, is pure BPO [business process outsourcing], security, and entry level jobs they pack up in these figures,” was the complaint of some. While others shouted, “Higher employment is not benefiting the country because inflation is eating away the pay people get.” I think some among us literally live on the complaint counter.

They seem to wash their face with lime juice and drink sulfur bitters each morning. Or is it that cognitive dissonance is their real problem?

FRANTZ FANON

Frantz Fanon was a French West Indian psychiatrist and political philosopher from the French colony of Martinique. His works are influential in the fields of post-colonial studies and critical theory.

Fanon’s pioneering work in psychopathology of colonisation is cited globally.

The Wretched of the Earth, published in 1961, is perhaps Fanon’s most celebrated work.

Fanon famously said: “ Sometimes people hold a core belief that is very strong. When they are presented with evidence that works against that belief, the new evidence cannot be accepted. It would create a feeling that is extremely uncomfortable called cognitive dissonance. And because it is so important to protect the core belief, they will rationalise, ignore, and even deny anything that doesn’t fit in with the core belief.”

Most of those who deliberately “bun bad lamp” for Jamaica simply because their political party is not at the wheel are suffering from cognitive dissonance. How sad!

DANGEROUS DRIVERS

On the matter of sadness, no right-thinking Jamaican can be happy with the continued carnage on our roads. The Road Safety Unit (RSU) reported last week that 26 Jamaicans were killed in 24 road crashes in April. The RSU says the majority of fatalities last month took place in St James.

Eighty-five per cent of those killed on the road in April are males and 15 per cent females.

There is a silver lining in all this bad news, however.

Road fatalities have decreased by 41 per cent, while fatal crashes decreased by 27 per cent when compared with a similar period in 2021. Notwithstanding that smidgen of hope, we cannot ignore the reality of rank indiscipline on our roads.

The disobeying of traffic signals, particularly running the red light, is now at frightening levels.

In some sections of Kingston, pedestrians walk out into the path of motor vehicles as if they have not a care in the world. Maybe they don’t. And, of course, the Yeng Yeng bikers seem to have forgot the laws of gravity.

Then there are those taxi and minibus drivers who literally bob and weave through traffic. They are a law unto themselves.

Some will be quick to ask: Why are the police not cracking down on these miscreants who are contributing to death and destruction and threatening the lives and livelihoods of thousands of innocent Jamaicans?

I think the level of indiscipline on our roads is so pervasive the police simply cannot keep apace. As a country we are going to have to decide to do better. For instance, we are going to have to decide to stop “flashing” motorists to warn that police checkpoints are in the vicinity. I suspect dozens of criminals have benefited from this illegal act. We have to decide to ensure that our vehicles are roadworthy, our papers are up to date, and we drive with greater care, with objective of being our brother’s keeper.

I believe the devil-take-the-hindmost mindset, which has become pervasive in our society, is fuelling, among other things, the carnage on our streets. No amount of increased human policing will stem this rotten tide, but technology might.

DIVORCE GALORE

Here is one tide we need to stem, and fast. This was the banner headline two Sundays ago in this newspaper: ‘Rapid Climb in Divorce – lawyers say COVID-19 not at fault’.

Recall the adage, “See mi and come live with mi are two different things.” More of us need to consider its meaning more seriously.

Recently, I was in the lobby of a public building waiting for a meeting and overheard two young ladies talking about what prerequisites a man needed to satisfy before they would enter into a relationship. “If he does not at least drive a Honda CRV he cannot look my way,” one said. The other nodded in agreement and then submitted, “Money in the bank — plenty of it — is a must. No bruk packet man round here, baby.”

“Interesting!” I said to myself.

Of course, it is not difficult to deduce what will happen to their partners were they ever to lose the Honda CRV and the plenty money in the bank. I get the sense that folks are getting hitched, as the Americans put it, for the wrong reasons.

A beauty queen once wrote to a Nobel laureate in physics asking him to have a child with her. “Imagine if my child had your brains and my body,” she reasoned.

The physicist wrote her a terse thank you, but no thank you note, and asked this question: “Imagine if the child had my body but your brain?”

I think the massive increases in divorce is an index of a greater problem in the society.

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