#BTColumn – When the courts break (Part 2)

Lady Justice sat on a wall, Lady Justice had a great fall, All the Queen’s Counsel and all the President’s men, couldn’t put Justice together again.

As citizens of this country, as in most civilized societies, we have certain basic, legitimate, inalienable rights and expectations. Among these are the rights to life, to liberty, to own property and to the protection of law. These fundamental rights are enshrined in our Constitution, the preamble to which declares that “the people of Barbados … proclaim their unshakeable faith in fundamental human rights and freedoms … and affirm their belief that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law.”

Section 18 of the Constitution contains provisions that are intended to secure unto every citizen the protection of law; and section 24 provides the mechanisms for the enforcement of the fundamental rights provisions by means of an application to the High Court for redress.

For without the institutional framework to enforce the rule of law, and to safeguard the fundamental rights enshrined in the Constitution, the proclamation of those
rights would be nothing more than sterile aspirations in a meaningless document.

Our courts, therefore, play a central, indispensable role in the organisation of civilized society in accordance with the modern precepts of justice and the rule of law. In the discharge of their constitutional remit, the courts are mandated to afford every accused person and civil litigant “a fair hearing within a reasonable time”.

This is a hallowed, immutable principle that undergirds any reputable system of justice. From it springs the trite, much-weathered, truism: justice delayed is justice denied. But those words are rendered threadbare and hollow in the absence of an effective mechanism to provide redress when the court system breaks down and is no longer
capable of ensuring unto the citizenry a fair trial within a reasonable time.

A cursory review of the civil cause list will reveal that the Barbados High Court is, in 2022, still routinely dealing with numerous cases filed over a decade ago, many filed over 20 years ago and even some cases filed in the 1980’s. (Full disclosure: my own matrimonial cause has been clogged in the system for 15 years and counting).

The same picture emerges in respect of the criminal docket, where matters languish within the criminal justice system for several years.  These inordinate delays in dispensing justice have clear and unmistakable adverse implications for fair hearing and the notion of justice and unquestionably engage the provisions of the constitution that are designed to secure the protection of law.  But is access o those provisions more illusory than real when, in order to seek redress, a litigant must turn to the same courts against which the complaints of unreasonable delays are being levelled?  We face an intractable crisis, and the real prospect of anarchy, when we cannot depend on the courts to adjudicate matters within a reasonable time and have no recourse, other than to the same courts, when the system breaks down.

In one Jamaican case, the Privy Council said that in considering whether a reasonable time has elapsed, consideration must be given to the past and current problems which affect the administration of justice. It said that in giving effect to the rights granted by the Constitution, the courts must balance the fundamental right of the individual to a fair trial within a reasonable time against the public interest in the attainment of justice in the context of the prevailing system of legal administration and the prevailing economic, social and cultural conditions.

The complex problems that affect the administration of justice in Barbados cannot be adequately covered in a short article, and I can attempt only a precis of some of the more obvious and prevalent issues.  They include: (i) inadequate State resources to ensure that accused persons are provided legal representation; (ii) inadequate State resources to properly staff the public prosecution office and the Solicitor General’s department; (iii) inadequate State resources to properly staff the courts and the judiciary; (iv) judges and magistrates who are frustrated, demotivated and disillusioned due to poor working conditions, inadequate support, low salaries, heavy caseloads and too few judicial officers; (v) the absence of effective legal mechanisms to hold judges and magistrates to account for habitual bad performance; (vi) lax enforcement of the procedural rules designed to secure the prompt disposition of matters and (vii) the all-too-frequent zeal of some lawyers in “gaming the system”.

The existence of these problems has been the subject of frequent comment by the Caribbean Court of Justice, which in the 2015 case of Walsh v Ward, where the period of delay was 17 years, said: “Regretfully, we are forced to comment once more on the excessive delay that characterises many cases coming to us from Barbados … This type of delay imposes hardship on the litigants. This is a case where the hardship is obvious.

The delay also reflects adversely on the reputation and credibility of the civil justice system as a whole, and reinforces the negative images which the public can have of the way judges and lawyers perform their roles.”

Lamenting that the delays were systemic, the CCJ said: “The consistent need for the repetition of this disapproval, and over such a long period, of the delays in the system accompanied by calls for remedial action makes the situation extremely deplorable. Reaction can no longer be put off.

This is an aspect of the judicial role for which there should be accountability. We urge the judiciary to take steps to address the problem of delay in the judicial process and ensure that citizens enjoy the benefit of the constitutional promise of a fair and expeditious resolution of disputes.”

In 2019, recognising the endemic problems being caused by delays in judges delivering decisions, Parliament amended the Constitution to include a provision that, in addition to misbehaviour, a judge could be removed from office for delay of more than six months in delivering a judgment. Sadly, however, in the three years since that amendment, the systemic problems of delay, not only in the delivery of decisions, but also in bringing matters to hearing or trial, remain endemic.

Practitioners, like myself, daily find ourselves in the invidious position of advising clients that the system is hopelessly broken, and that we can give no meaningful estimate as to when their matter is likely to be heard and decided. Dereliction in duty, in failing to bring matters on for trial, or deciding them, within a reasonable time arguably amounts to misbehaviour.  Yet no judge in Barbados has ever been sanctioned for misbehaviour or delay.

To be sure, the fault cannot, and should not, be laid at the feet of the judiciary alone.  Those at the highest echelons of power who are charged with the administration of justice are equally to blame.

Moreover, it takes two hands to clap, and lawyers (and their clients) must also play their part in supporting the due administration of justice by eschewing the unsavory practices that promote delays. But, in the courtroom, the buck stops with the judge or magistrate, and he or she must shoulder a good deal of the responsibility for delays.  In the end, the accused persons and civil litigants are the ones who must pick up the mangled and bloody pieces of their lives after being chewed up and spat out of the woodchipper that presently passes as our judicial system.  It is a completely unsatisfactory situation, and we can, and must, do better.

Garth Patterson Q.C. is a Senior Partner of Lex Caribbean. He was called to the Bars of Jamaica and Barbados in 1987 and the Bars of New York and
St Lucia in 1990 and 2011 respectively.