You can’t legislate culture – Dr Wayne A.I. Frederick
Those words were recently spoken by the current President of Howard University, Trinidad born, Dr Wayne A.I. Frederick, at the annual Distinguished Jurist Lecture in Port of Spain. Dr Frederick, a surgeon by profession, was speaking to a room full of mostly lawyers and judges about what he, as an “outsider”, felt were some of the issues affecting the justice system in his native land. I immediately jotted down those words as they rang particularly true as it relates to Barbados.
The issues facing the justice system in Barbados are no secret. There are delays of magnitudes which would make the crafters of the Constitution shudder. Backlogs have reached unprecedented numbers in both the civil and criminal jurisdictions. Social media and local news outlets tell the tale of the socio-economic effects of our crippling justice system daily – a record number of murders, a failing economy and a general disregard for the law.
I always find myself thinking two distinct thoughts in relation to this current state of affairs – how did we get here and how can we fix it? More recently, I’ve added a third thought – whose responsibility is it, anyway? This is a peculiar question given that as an attorney, I’ve dedicated my life to the championing of causes such as this. But the reality is that our system calls for far more than overzealous attorneys eager to bring about change. It also calls for more than the creation of specialist courts, additional judges or even a Law Reform Commission. The time for the implementation of piecemeal measures has long gone. What the justice system needs, before another court is opened or another piece of legislation is drafted, is a cultural change.
Culture is the embodiment of an organization’s goals, roles, processes, values, communications practices, attitudes and assumptions. Simply put, it is how an organization does things. Culture has a powerful impact on an organisation’s performance and long-term effectiveness. But, changing it is one of the most difficult leadership challenges. It tends to be resisted in the context of courts because it forces court leaders to challenge the way justice has been delivered for decades. It also tends to be resisted for other reasons. Courts are inherently conservative. So too are established lawyers. Among these bodies few wish to move out of their comfort zone, to embrace novel methods, rules, technologies or processes. Research shows that it isn’t the change itself that is resisted; it’s the belief that something of value will be lost or fear of not being able to adapt to the new way of doing things.
Then, there is the influence of the local cultural context. In Barbados, everything we have done for decades tends to be associated with feelings of pride and sovereignty. No doubt, the immense work done by our forefathers and those from the post-independence ‘Generation X’ era should be guarded fiercely. But, when we allow those very things to fuel resistance to any change and prevent natural progression, there is a problem.
An organization’s culture is usually found in its formal structure through official rules and lines of authority as well as below the surface through informal organization, unwritten rules, underlying beliefs and unofficial networks. When court reform goes wrong, it’s often because it was aimed at formal structures and ignored the underlying structures and practices. For instance, new civil procedure rules were introduced more than a decade ago to make legal proceedings cheaper, quicker, and easier to understand. The effort to amend the rules was necessary and comprehensive and included clearly stated procedures and timelines to improve access to and the delivery of justice. Yet, in the last ten years, backlogs and delays have increased.
The reason for this is simple. The new rules were crafted to enhance formal structures but failed to consider what happens below the surface. For example, for some time after their introduction, the rules were ignored by the legal profession, for no other reason, than it was a change to how things have always been done. Another example is the informal adjournment policy which currently exists in Barbados. Judges readily accede to the countless requests for adjournments made by attorneys on a daily basis for (more often than not) frivolous reasons or sometimes on their own initiative, because court files cannot be located. This sometimes even results in the permanent closure of cases!
The lesson here is simple – reform cannot work if people continue to act in the way they always do! The formal way to change the culture in any organization is usually summarised in a few simple steps: (1) become aware of the current culture, (2) assess it [by critiquing what is] and (3) envision a new culture [by thinking about what should be]. While this is easy to say, it is much harder to achieve. Yes, it is an uphill task! But, we have to start somewhere and that is by acknowledging that it is our responsibility.
That includes those who are formally responsible for administering justice – judges, attorneys, court leaders as well those who the system is responsible for protecting – members of the public. Justice in a society can only be administered in a way which is reflective of its people. So, as members of the Barbadian society, we all have a role to play. Clients, hold your attorneys accountable, and never forget the law and the justice system are for your protection. Attorneys, manage cases more responsibly and remember your professional commitment – justice is more important than winning at any cost. Judges, you are ultimately responsible for the outcome of these disputes, so ensure that above all, justice is delivered fairly and expeditiously. These are simple changes we must all challenge ourselves to make to start this process of changing the culture. To bring about the change we are so eager to see, we must first be it!
We simply cannot legislate ourselves out of this one.
Latoya McDowald is an attorney-at-law and Certified Court Manager.