Baffling delay

The legal fraternity continues to express deep concern at the lengthy delays in delivering judgments in the High Courts of Barbados.

Immediate past president of the Barbados Bar Association Rosalind Smith-Millar has lamented that “it remains a problem” even though, under her leadership, the association wrote to Chief Justice Sir Patterson Cheltenham and Prime Minister Mia Mottley on the issue.

When Barbados TODAY reached out to Sir Patterson on Friday, he declined to comment.

Today, there was bewilderment and frustration among lawyers involved in the appeal against the October 8, 2021 oral order of Madame Justice Jacqueline Cornelius.

Justice Cornelius, who had dismissed all submissions which formed the core of four lawsuits brought by former senator Caswell Franklyn, shopkeeper Adrian Kellman and minimart owner Benson Straker, challenging the constitutionality of the COVID-19 protocols, promised to make her written decision available to all parties within 30 days of her October 8, 2021 order.

But more than a year later, attorney for the claimants Neil Marshall and Senior Counsel Leslie Haynes who is representing the State, indicated on Friday they had stopped counting after several other promised timelines had passed with no written judgment.

Today was the latest date set for delivery of the written order, following a letter dated October 31, which Haynes wrote to the acting Registrar of the Supreme Court Michelle Johnson on the matter.

But up to the close of business, Marshall and Haynes confirmed that nothing was forthcoming.

Marshall has previously noted that the written judgment, which would outline the judge’s reasons for her decision, is required for him to lodge a full and proper appeal with sound and substantial grounds.

“I am disappointed. I really want it because I really want to get on and do the matter. You don’t like a case to go cold on you. You move on to different things…

“I believe I can reinvigorate myself to pursue it, and the emergency powers are still in operation, even if not the directives. So it’s still a very relevant decision. It cannot now be merely academic because the emergency powers that gave rise to these things still exist,” attorney Marshall argued.

The claimants have made it clear that they are willing to take their challenge against Justice Cornelius’ High Court decision as far as the Caribbean Court of Justice (CCJ), this country’s final court of appeal.

Franklyn had challenged the manner in which the Emergency Management order, crafted by the Government to help control the spread of the COVID virus on the island, was imposed.

He charged that Government was illegally enforcing directives without the required Parliamentary approval.

But in a near two-hour truncated oral decision, the judge told the virtual sitting that the directives were a proportionate response to the pandemic and not a breach of any fundamental rights.

The delays in the written judgment being made available to the parties has brought into sharp focus Section 84 of the 2019 amendment to the Constitution. It states that a judge may be removed from office only for inability to discharge the functions of his office (whether arising from the inability of body or mind or any other cause); for misbehaviour; or for delay of more than six months in delivering a judgment.

Last year CCJ Justice Denys Barrow described the delays in delivering judgments in Barbados as “unacceptable”. He cited a concurring judgment by CCJ Justice Peter Jamadar who also had some strong words for Barbados when he referred to Sections 18 and 84 of the Barbados Constitution relating to the delay in the delivery of judgments.

The Barbados’ judicial system has been rebuked by the CCJ for more than a decade. The court previously gave Barbados a serious tongue-lashing dating back to the case Winton Campbell versus the Attorney General (2009), citing a lack of ‘urgency’ in dealing with judicial matters.

emmanueljoseph@barbadostoday.bb