Due process and the rule of law

By *Jomo Sanga Thomas

(Plain Talk, May 5, 2019)

A few years ago, Justice Adrian Saunders, president of the Caribbean Court of Justice, shocked listeners at a public lecture when he said that the rule of law and due process rights of citizens were under serious challenge across our Caribbean.

Due process is the legal requirement that the State must respect all legal rights that are owed to a person. Due process balances the power of law of the land and protects the individual person from it.

The rule of law implies that all citizens are subject to law, including people who are lawmakers, law enforcement officials and judges.

The lack of the rule of law can be found in both democracies and autocratic societies because of neglect or ignorance of the law. The rule of law is more apt to decay if a government has insufficient corrective mechanisms for restoring it.

Where are we in St Vincent and the Grenadines on these most vital issues? Not bad at all, but we have to be vigilant. Compared to the rest of the Caribbean, criminal defendants in SVG get to the court much quicker than in other places. But we have to remain on guard. There is the potential for serious erosion. Petitioners who bring civil or constitutional claims are also challenged, but the law is increasingly being used to protect their rights. See Otto Samand the Teachers’ cases.

Here are a few examples. Until recently, all detained persons awaiting trial were brought to the court at the beginning of the assizes. Their cases were court managed and the accused or his lawyer had the opportunity to represent his interest to the judge. Prosecutors had the opportunity to respond. This long-established practice, known for centuries as habeas corpus, which literally means to produce the prisoner, has stopped. Currently, only recently accused, arrested and detained persons awaiting trial are brought up at the assizes.

We must go back to the old practice. An accused person must not be warehoused in the prisons until the state is ready to try his or her case. The judge must get the opportunity to manage the cases of all detained persons awaiting trial.

Webster Woodley was arrested more than 10 years ago for murder. He was tried, convicted, and sentenced. The conviction was, however, overturned on appeal and a new trial was ordered. This was more than four years ago. The retrial has not yet been called!

The prosecution takes the position that it will not try the second murder case because its case is based on the evidence of two women who claimed to have been in an abusive relationship with Woodley and heard him openly discuss the murders. At the initial trial, both women said that it was the practice of Woodley and his friends never to discuss matters in their presence. They either whispered, or went into the yard. However, their evidence was that after the alleged murders, Woodley and his friends sat around the dining table and openly detailed the crime.

The women did not testify in Woodley’s trial, where they would have been subjected to wilting cross examination. Their evidence was from a previous trial. Both women were offered witness protection and are no longer in SVG. We do not even know if they are still alive. So the prosecution, to date, refuses to schedule the retrial or call the second murder case. Meanwhile, Woodley languishes in prison. Case management of Woodley’s case will force the prosecution to speak to the true state of affairs. This can’t be justice.

There is also the case of Donrick Richards. He spent five years on remand awaiting trial for murder. Tired of waiting, Richards decided to plead guilty to manslaughter and was sentenced to nine years in prison. He was given credit for the five years and one month he spent on remand, but the long wait for trial has now worked against him. Had he been accorded a speedy trial and sentenced within a year after his arrest the five years he served would have counted as seven prison years and he would have been eligible for release by the end of this year. However, at his sentencing, the five years on remand counted as only five years in prison and he will end up spending an additional two-plus years in prison.

Then there is troubling situation where the Kingstown Magistrate’s Court has not yet met for all of 2019. Magistrate Ricky Burnett was assigned by the Eastern Caribbean Supreme Court to act as a master since January 2019. The Kingstown Magistrate’s Court is one of the busiest in the country. A magistrate could have been temporarily assigned to dispense with these matters. But no! Important cases regarding the liberties and rights of persons are simply rolled over.

Some persons on remand remain in prison, unable to make bail. Others may serve more time on remand than they would receive if convicted. But the authorities prioritise matters. Each week, traffic matters are heard at the Serious Offenses Court. Caesar’s fines, on those found guilty of traffic offenses, cannot wait. To hell with the others, but justice delayed is justice denied.

In April, two troubling experiences occurred in Magistrate’s Court. One concerns a young man who was arrested on traffic offences and for assaulting a police officer. He missed the court date and was bench warranted. He went to court, explained his absence and the warrant was lifted. Then, officers arrested him. He explained that the warrant had been recalled, but they insisted on arresting him, falsely. They also beat him for resisting arrest. On his return to court, the magistrate refused a lawyer’s application to drop the minor charges in light of the false arrest and beating administered to the young man.

Another magistrate was informed of the unnecessary and unwarranted beating of a young man by police officers. The lawyer explained that the police would never have treated a child of an affluent family in such an inhumane manner. The magistrate said children of affluent families don’t break the law!

These lapses and prejudices place real pressures on the poor. They must be remedied or the poor and vulnerable would lose all confidence in the system.

*Jomo Sanga Thomas is a lawyer, journalist, social commentator and Speaker of the House of Assembly in St. Vincent and the Grenadines.

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