By ANDREW ALLEN
Finally, a politician has opened his eyes and spied the 800-pound gorilla that has now taken up most of the room and is sucking out the oxygen. Too bad that the keen-eyed observation had to come from a member of a government that is also complicit in the breakdown of law, order and public safety in The Bahamas.
The Bahamian judiciary has indeed degenerated into a farce, a tragicomic institution whose quixotic dress and retention of antique language and ceremony have come to vividly reflect its alienation from the realities of the society in which it functions.
To a slightly lesser extent, the other two institutional arms of government, Parliament and the Cabinet, are also alienated, though they are (by the nature of their appointment to office) more exposed to the effects of public opinion. They are not as insulated from reality as the judges they appoint. This explains the tensions that arise between the two equally hopeless fraternities when a politician is caught having to explain the inexplicable and, in his anxiety, blurts out, among much else, the truth: that our courts have become a failed arm of state in the crime fight.
Judges, for their part, prefer to adopt the mantra of Groucho Marx (“who are you going to believe, me or your own eyes?”) when trying to shame the public into not seeing the glaring link between their reckless grants of bail and people getting killed.
Most politicians being lawyers, the courts get ample support from that quarter most of the time. Witness the bristling of friend (Allyson Maynard Gibson), foe (Free National Movement politicians) and wannabe (Branville McCartney) to Dr Bernard Nottage’s statement of the obvious. It’s all a most predictable show.
But let’s cast our eyes away from the show and look at the real problem in the political/judicial culture of The Bahamas, at the place where the failings of that culture are most basic and obvious - the inability of our institutions to keep us physically safe.
For this, you can look at other Common Law jurisdictions with similar challenges and how their criminal justice systems respond. But most importantly, look at England, the land where the doctrines that govern our criminal justice system arose.
In England, where the murder rate is less than one per 100,000 population (like two murders in The Bahamas in a year) it is nonetheless extremely uncommon for bail to be granted in cases involving murder. But it would be truly inconceivable for English judges to continue to grant bail for people accused of murder in the context of a murder rate like ours, and one which is so obviously tied to bail abuse.
Last year, the United Kingdom (population 65 million) had 537 murders, of which fewer than 40 involved firearms. At our rate, that figure would have been 25,000 murders, of which 24,000 would have involved firearms. 10,000 or so would have involved a person already in custody but out on bail. Under those circumstances, the courts would automatically invoke the public interest against the grant of bail for murder or firearms offences.
By contrast, I have never read or seen reported a Bahamian judge invoking the public interest as a heavy consideration against granting bail. English judges simply weigh the interests of British society more heavily than Bahamian judges weigh the Bahamian public interest. For the latter, facts on the grounds around them (however extreme) do not justify changes in the way they apply sacrosanct doctrines. For the former, dealing with facts on the ground are the raison d’etre of these doctrines.
Since most violence in The Bahamas is committed by and upon people who have already been in police custody, it is a simple fact that the levels of violence in The Bahamas today reflect little more than the relatively low priority that Bahamian judges give to Bahamian lives and Bahamian public safety compared to their English counterparts. That is a sad, but very tangible legacy of colonialism.
For their part, Bahamian politicians, instead of moving to protect the Bahamian public against this truly perverse judicial culture, usually defend it by reference to silly, twisted arguments that make sense only to Bahamian lawyers. Politicians and judges collude to invent excuses for inaction, such as the suggestion that the repeated bailing of dangerous criminals is dictated by our collective inability to bring matters to trial with speed. This is patent nonsense. Again, in England or anywhere else governed by rational judicial/political minds, the public interest against granting bail when you have repeated bail related murders and 40 murders per 100,000 people, would outweigh this consideration even if it took 300 years to bring matters to trial.
Other areas of our national approach to the crime crisis betray the same paralysing colonial mindset. Naturally, these mostly relate to aspects of the trial system. But often politicians are as complicit as judges, if not more so. Ill-fitting trial procedures and governing doctrines that evolved in medieval England are today applied in a more purist form in The Bahamas (a country with a rate of violent crime never known in English history) than in England itself.
Take jury trial. In 2000, in response to a rash of jury tampering incidents (maybe ten) involving Jamaican gangs in South London, the UK updated its Criminal Justice legislation to seriously limit access to jury trial in cases involving guns, drugs or gang-related accusations. That means that most of the violent crimes being tried in The Bahamas would not be heard by a jury in England, because of actions the UK government took in response to relatively mild cases of jury interference. In The Bahamas, where people are routinely arrested for murdering witnesses and intimidating jurors, politicians are paralysed out of following suit, partly because politicians are themselves the subject of colonial self-indoctrination but also because any attempt to address this failure in our constitution would lead to howls of protest from the Bar Association, venerated judges and other people dressed like 18th century Englishmen in the hot Bahamian sun.
Incidentally, the origin of jury trial has nothing to do with modern ideas of justice and everything to do with early Anglo-Saxon ideas of mythology (12 being the number of gods in the Norse pantheon). But that aside, its effects are 50 times more likely to get you killed in the Bahamas than in England, where it has been effectively removed in the kinds of cases where it is likely to be abused.
So, to some extent, Dr Nottage is right. The criminal court is a failed institution, an irrelevancy. Justice has returned to the streets as heavily armed bailees fight it out with impunity in between court appearances. In the absence of a serious court system, a cycle of murder and retribution has become so well entrenched that, in some inner city communities, it has supplanted the state in terms of efficacy, predictability and, some (though not I) would say, justice.
These sad, easily preventable, easily changeable facts are all reflective of a judicial and political establishment that does not genuinely see its prime focus as serving the Bahamian public interest. And within this establishment, the Bahamian court is the most wholly out of touch with reality. I will take Dr Nottage seriously when he and his colleagues that we sent to Parliament stop talking and begin dealing with the first and most obvious problem in our crime fight - Bahamian judges and the defunct criminal justice system over which they preside.
Andrew Allen is a practising lawyer and a former journalist with The Tribune