It was refreshing to read Prof Theodore Lewis's article of Dec 2 in one newspaper entitled" Crime battle and flawed legislation" and again in another, today Dec 9 under the heading "Playing into the hands of Criminals." On the issue of the ineffectiveness of the law as we practice it here," the flawed legal frameworks that constrain us and heavily favour criminals", this "stupid law" as he would later call it, tracing how throughout our history as a nation our leaders such as Williams with the 1970 uprising, Robinson with the 1990 coup and now Persad-Bissessar in 2011with the SOE and the assassination plot, have never succeeded in successfully prosecuting criminals who were able to go free because of a legal system which allowed them to do so.
Prof Lewis would go on to suggest that rather than" berate a government that was willing to target criminals and to take them off the streets" (which seems the fashion at present with the release of detainees) we must address the deeper question of "the flawed legal frameworks that guide us", of which I will have targeted the specific issue of evidence (which has been highlighted today in at least one newspaper) and the need to revisit this fundamental tenet of the law to better serve the cause of justice than at present when it is being exploited in favour of the criminals and those who would serve them. I wish to go a little further than Dr Lewis, however, to ask whether the practitioners of the law from top to bottom do not see this travesty, this anomaly in the law and the need to address it.
In every institutionalised body of knowledge, be it in science, education, economics et al, there're is always a continuing interrogation of its existing tenets over time with adjustments and changes being made as each evolves. In a response to a recent letter from Professor Gift I had reason to point out that scientific truth continues to evolve over time and what may be "fact" yesterday may be adjusted or changed altogether the next and that no scientific position at a given point in time can really be "wrong" in the absolute sense. Not so with the law as practiced here, it seems, which compels me to ask whether the study of law as pertains in our institutions is "content" oriented, knowing the rules and applying them wholesale, a kind of simplistic approach to knowledge, without any attempt being made to interrogate that knowledge, to evaluate is continuing effectiveness, and the need for adjustment and change.
Are our law students being merely taught to accept the tenet of "beyond reasonable doubt" which is often grossly in favour of the criminal who may be 99 per cent guilty and not to consider the option of punishment to suit the degree of guilt? Are they being made to accept accepting a necessary equivalence between lack of evidence and alack of guilt without finding creative ways to counter criminals who would manipulate evidence in their favour?
The Mosaic law of an eye for an eye would have been supplanted by the law of human brotherhood and apartheid would have given way to the equality of all men which would have happened out of progressive men and women seeking a more just society and changing the law to suit. What withholds our law makers in this country to do the same? I wait, like Professor Lewis, but with bated breadth, for the law to serve its true function in the interest of justice.
Dr Errol Benjamin
Senior Lecturer
Critical Thinking
CAFD, UTT