Recording of Court Proceedings Bill 2014 – Bill No. 1/20143597 10 Feb, 2014
Mr. Nandlall: Thank you very much, Mr. Speaker. It gives me great sense of pride to present this Bill for its second reading. The Bill itself is comparatively inconsequential to what it symbolises to the judicial system of our country.
We have heard, for a very long time, lamentations expressed about the delay which afflicts our system and the consequential injustice which flows therefrom, both in the administration of criminal justice as well as in the civil aspect of our justice system. Any part of this country one goes one meets a hapless complainant who would tell you about the travails they have had while waiting for their case to be heard in a court. As a Government, in recent times in particular, we have provided the resources, embarked on initiatives jointly with the judiciary in order to address this chronic, systemic and systematic problem which is so ingrained in our justice system. And perhaps we may never successfully address it because it is not a problem which is confined to Guyana. In fact, it is one that is extant throughout the Caribbean and elsewhere. But over the years, various mechanisms, statutory interventions and a whole host of policies and systems have been implemented with a view to bring despatch, expediency and efficiency to the system in terms of accelerating the rate at which it disposes of cases.
I distinctly remember some 25 years ago, I accompanied the former Attorney General, Mr. Doodnauth Singh, to the Hall of Justice which is the Supreme Court in Trinidad and Tobago where he presented a bail petition for Anisa Abu Bakr, the wife of Yasin Abu Bakr, in relation to charges laid against her and her husband, among other persons in respect of the failed attempt to overthrow the Government of Trinidad and Tobago at the time.
This was in 1990. Lawyers in the Parliament would know that a bail petition is a relatively simple exercise and it takes matters of minutes, but that one took several days. The arguments lasted for hours. I remember that after every day of argument, and this was since 1990, the team for both sides were able to retrieve from the court verbatim record of the presentation. It was the first time that I saw that being done in my life. I say that to say that the system which we are now introducing in Guyana is long overdue. We recognise that.
In fact, in the programme which has just been completed – the Modernisation of the Justice Administration Project – did not have this initiative as part of that project, though there was a central and fundamental component of that project which dealt with speeding up the system. I wrote to the International Development Bank (IDB) and requested an amendment to the project and the IDB kindly granted my request, and the amendment was to add this initiative to the project. The equipment is already here in Guyana and I am proud to say that it is the most modern equipment in the world.
I travelled to the United States and looked at the system it is using in the court system at least for the state of New York and it was that system which was ordered. We had to wait because the manufacturers informed the contractor who won the bid that should he wait for two months, he would get an updated version of that which is used in New York. The system that we have now is an updated version of that which is in the court system in New York.
The system, as I understand it, is computer-generated but there is a large human component. Apparently, technology has not reached the stage yet where they have been able to design an equipment that can capture verbatim the accent, vernacular, enunciation and the pronunciation of different people and produce a verbatim record. Those of us who use Siri on our iPhone – I know the Minister of Culture, Youth and Sport usually has long conversations with his Siri – there is difficulty in getting a verbatim conversation with Ms. Siri. The system there still has a human component attached to it and though it will record that which transpires in the court as best as the machine can do, there still will have to be a human being who will be typing the record, collating that with what is generated by the machinery.
As I indicated at another session in this House, the system is going to be implemented in a few courts only simply because it was expensive and it was decided that a pilot project be launched first so that we could confront and hopefully overcome the initial problems which we anticipate. The three courts which have been identified are the Court of Appeal, the Court of the Chief Justice and the Commercial Court. Those courts at the time when the contract was awarded were the only courts in the Supreme Court edifice that were air conditioned. Again I am pleased to report that every court in the Supreme Court edifice, including the Magistrate’s Court, is air conditioned so there can be a rapid implementation. If that was the objection then, it cannot be the objection now and as soon as we are able to overcome the initial difficulties, we would be able to implement the system in every court.
This Bill seeks to legitimise the record that will be produced by the equipment and processes which are attached to the equipment. In Trinidad and Tobago, a similar thing was done and I am sure the other countries in the Caribbean would have had to do the same thing. It is essentially to make the final product generated by the initiative to be the lawful record of the proceedings which they purport to record. That is what this Bill seeks to do.
It seeks to permit the recording to be used as the official record of the court. It permits the Registrar of the Supreme Court or a Clerk – and the word Clerk was inserted here so that the Registrar of the Supreme Court will have general administration in relation to documents produced at the level of the Supreme Court and the Clerk is the official officer in charge of the magistracy in terms of clerical functions. The Clerk of the Magistrate’s Court is also empowered here to certify that which is produced by the recording as an official record of the proceedings.
I want to tell my learned Friends, the lawyers who are in the House, that a cost will be attached to the generation of these records as it is done wherever the system has been used including New York and Trinidad. But I am sure, with lawyers of such pre-eminence as the recently anointed Deputy Speaker, such financial obligations will not be an undue burden. [Mr. Williams: Think about the newcomers?] It is not a profit making venture. The fees are to ensure that the project itself is sustainable and self-sustainable. That is the objective behind attaching a cost recovery component to the project.
Mr. Speaker, the Bill which is before this House is a very simple Bill. And it introduces to our legal system, for the first time, automatic recording, verbatim recording of proceedings using technological apparatus. So it is a very non-contentious Bill and I invite all Members on the other side to support it.
Thank you very Mr. Speaker. [Applause]
Mr. Nandlall (replying): Thank you very much Mr. Speaker. I want to thank all the persons who spoke: Minister Manickchand, the Deputy Speaker, Mr. Bond and Mr. Nagamootoo, and to express the Government’s gratitude for the support which they have expressed and for the congratulations, which they have echoed.
Some important points have been raised and I believe that I would be delinquent if I do not attempt to address them and I will endeavour to do so. Mr. Nagamootoo spoke about the need to review the current strictures which are legally placed on the freedom to report. I suppose verbatim or expo facto the proceedings of a court. We see regularly in America that that is a regular feature. We all would have seen, perhaps in its entirety or some excerpts, the famous OJ Simpson murder trial. Recently we had the controversial killing of an Afro-American in Florida, by a Caucasian male and there were a lot of racial intonations and overtones surrounding that file. It was transmitted live.
It is a concept which is developing called Open Justice. Open Justice is interpreted to mean in certain societies or interpreted to include that justice and that which transpires in the justice, must be open to all and that is the concept embraced in America. Unfortunately, the British tradition of which we are part... [Interruption]
Fortunately or unfortunately, let me be careful and do not choose a side, in the British system and the Commonwealth, in particular, have not embraced that concept fully. While there are certain exceptions, it is largely a matter which is left, in the British system and in our system, to the judges.
We have conservative judges. Many times in the political cases which have emanated from this National Assembly, while they were ongoing in the courts before the Chief Justice and before other judges, reporters wanted to take photographs of arguments, as the arguments were being presented by Mr. Williams at one time and he was... [Interruption]
Many reporters attempted while the case was ongoing to take a pictorial representation of the proceedings to replicate it in the newspapers, but that was prohibited by all the judges. So we have that stricture still extant in our culture and tradition.
I believe that my learned friend can contribute to a change by articulating his views at the Guyana Bar Association. The momentum, I believe, should come from the Guyana Bar Association. Hopefully, they will have a greater impact on the bench than the Executive trying to influence such a change because the Executive, as you know Sir, operates within certain constitutional prohibitions and it is very easy for the allegation to be made, that the Executive wants to exert pressure on the judiciary.
Another concern which has been raised is whether this initiative will extend to the Magistrates Court. I want to say yes. That is precisely why the court is defined to include Magistrates Court and that is precisely why the Bill speaks to a Clerk. It refers to the Clerk of a Magistrates Court.
Another concern that was raised dealt with whether this will be the only form of note taking and whether the recording would be the only record of the proceedings. The Act was drafted in a particular way for a reason and let me deal with clause 3 of the Bill for example. This was what the subject of the criticism was by Mr. Bond. But, it actually achieves the opposite result of what Mr. Bond accuses it of or thinks of it as a limitation. It says this:
“Where a written law provides that proceedings in a court shall be recorded, those proceedings maybe recorded by any means.”
That was put there in that vague language for a reason. It would be imprudent to stipulate by a law that this device shall be the only form of recording. It would also be an exercise of a lack of foresight to attempt to define the type of recording, especially having regard to the way technology is developing. It would be unusual and exceptional if one is to legislate that judges cannot write their notes, if they wish to take notes, or that they must write if they wish. This is not intended to replace anyone’s desire to take notes as they sit in a court, be that person a judge, magistrate, lawyer or litigant. One can do that.
This seeks to preserve and in a permanent form, the proceedings of the court and this will be the official record. Mr. Williams asked the query, what will happen if his notes collide with these notes. These notes are going to be issued under the hand of the Registrar. Therefore omnia praesumuntur rite esse acta, this will be the official record of the court. If Mr. William’s records collide with this, then this shall prevail, obviously. That is the whole purpose of passing a law in the Assembly. We could have gone administratively, by administrative directions I suppose and set up a unit to record and it could have been done like that in a very ad hoc way, but this makes it the official record. This is the Bill that has been used by Trinidad whenever they had the system – almost verbatim, a few minor changes.
Mr. Bond argued that the Bill does not say what type of recording or how it is going to be recorded, but the Marginal Notes say that, “Power to record proceedings by electronic or other means – electronic or any other means. So it is wide and it provides great amplitude to allow the recorder – recorder meaning the judge or the lawyer – to use whatever means they feel comfortable with, but there will be an institutionally generated record by this method.
Mr. Bond also raised the concern as to who shall the official keeper of the record. The official keeper of the record of the Supreme Court of Judicature is the Registrar of the Supreme Court and that is in the High Court Act. That is why there is no need to replicate that here. The official record keeper of the Magistrates Court is the Clerk of the Magistrates Court and that is in the Magistrates Court Act. Those are already statutory defined functions.
I mentioned the name here knowing full well that the law must be read holistically.
Mr. Speaker: ...different than judges note books... [Inaudible]
Mr. Nandlall: That is correct. The same system that they have, which we have been using for the last hundred years in the judicial system of Guyana to store and keep records, will be the same system that will be used. This simply will be an addition to the system, in terms of the instrument being used to record instantaneously that which transpires in a court.
The Member asked, for example, about the speed at which these records were going to be made available. That also cannot be made the subject of a law because of the vagaries and the unpredictability of the earth. The Hon. Member Mr. Nagamootoo cites the erratic supply of electricity. I will not pretend to be blind to such a reality. Also, anything can go wrong and if one stipulates a time for the generation of these records, and the timeframe is violated, which has been statutorily prescribed then one has a whole host of other problem, whether it is admissible anymore; whether the documents and the records generated complies with the Act; what is the authenticity of it; what is the lawfulness of it, etcetera? We know and Mr. Williams knows that lawyers make up arguments all the time when they do not have a case. I want to avoid that kind.
That is why the Bill does not speak to any time frame. Take for example, when the Linden Commission of Enquiry was being done, one of the perquisite of the Commissioners was that the evidence and the records of the day’s proceedings be made available to them in 24 hours. I enlisted the help of the National Assembly. The Clerk assisted greatly and we were able to assemble a team of staff of the Parliament, as well as ex-staff from the Parliament and a few of these very instrument, which are not really designed to deal with that kind of court sitting, but more designed for conferencing. But we were able to use it and generate the record, as requested by the Commissioners within 24 hours.
That will be the objective, but that can only be an administrative directive. I think it would be careless actually to put that in a law because of the possibility and the high possibility of not being able to keep within the time prescribed.
Mr. Williams spoke about furniture for the Family court, a highly irrelevant issue, but I will still speak to it. [Mr. B. Williams: Is it irrelevant?] Highly irrelevant to the Bill at hand; this Bill does not deal with the Family Court furniture. My report is that the furniture is currently being put into the building and hopefully... [Mr. B. Williams: It has been three years.] It has been a long time Sir; let me concede, though I have no responsibility for the acquisition of the furniture. It is a matter for the Judiciary. They are in the process I know because I have visited the premises recently and they are in the process of installing the furniture. They are custom made furniture. There are unique things that one will not see in a court in Guyana, but they are getting there and it has been a long time I agree.
There will be an opening soon, but that is a matter for the Judicial Administration to deal with the opening of the courts and matters of that type. [Interruption]
Sir, with those few remarks, I am happy that the Bill has received the unanimous support of the House. It is an unusual occurrence when all sides of the House coincide in agreement on any given issue. This Bill has produced that result and I humbly ask that it be read a Second Time.
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