Damn excuses, platitudes, and promises!
Today we return to the embarrassing and endemic problem of institutionalized sloth in Barbados’ judiciary.
No number of public criticisms of the Caribbean Court of Justice from esteemed Queen’s Counsel of the ilk of Hal Gollop or Vernon Smith will diminish the state of affairs that seems likely to make Barbados a source of derision in regional and extraregional legal circles. No romantic notions or reflections of previous loiterings on the doorsteps of the British Privy Council will solve our problems. Platitudes be damned! Excuses be damned! Promises be damned! The time to take the plaster off this festering sore has long passed.
The tenet that justice delayed is justice denied appears to be empty jargon in Barbados’ legal circles. We are often quick to criticize the baker, the butcher and the candlestick maker when they fall short of their responsibilities. They find themselves near the bottom of the social ladder and are easy fodder. But lest we be fooled, our judicial officers are fallible and do not walk on hallowed ground because of their status in society. Their shortcomings are likely to touch more lives than the spinner of yarn.
The Caribbean Court of Justice poured scorn on the workings of our courts in the Winton Campbell vs The Attorney General appeal ruling of 2009. The region’s highest legal authority was moved to refer to Section 18 (8) of the Constitution which confers on litigants the right for their cases to be given a fair hearing “within a reasonable time”.
In the Campbell case the CCJ described the more than eight years that it took for the local High Court to conclude that matter as delays which “deny parties the access to justice to which they are entitled and undermine confidence in the administration of justice”. The irony of such pronouncements is that John Public does not have to wait on the CCJ’s admonitions to appreciate the seriousness of the problem. It is the average citizen that invariably suffers the consequences of this calamity.
In the 2008 judgment in Yolande Reid vs Jerome Reid, Justice Saunders was moved to state that three to six months was quite adequate time to settle most cases. That particular case had made the rounds for about five years.
“In our view, no judgment should be outstanding for more than six months and, unless a case is one of unusual difficulty or complexity, judgment should normally be delivered within three months,” Saunders wrote on behalf of the CCJ.
In the case of Neval Greenidge vs CLICO, the plaintiff Greenidge has been waiting on the local courts for justice for 15 years. This has included, reportedly, 11 trips from Canada to Barbados for hearings which were all adjourned. Waiting for almost two decades for a matter to be concluded and for justice to be served in a civil matter is unconscionable; if not almost criminal.
Such occurrences are not the figment of someone’s fertile imagination. These are real situations involving real citizens whose trust and confidence in the judicial process are constantly being eroded. These are matters which must not be hidden from public scrutiny. If Barbados’ judicial system must be shamed out of its inertia; if our culture of sloth must be laid bare for public ridicule; then the CCJ must be praised for giving us excess of it.
But the CCJ has not been the only legal authority to cite the tardiness that is seemingly like a barnacle attached to the judiciary. In January, 2014, during debate in the House of Assembly on a series of supplementary resolutions Prime Minister Freundel Stuart, Attorney General Adriel Brathwaite and former Attorney General Dale Marshall added their voices to what is really a crisis of major proportions. Mr Marshall, ever the diplomat, noted that Supreme Court judges and the Registry staff were doing their best. But he added Barbados clearly had a problem if the CCJ continued to complain about delays in local judgments. Mr Marshall said his concern was mainly for the plight of litigants who suffered because of a flawed judicial process.
But what exactly occasions these inordinate delays? We are told that adjournments requested by lawyers, short court sessions, the obvious failure of judges and magistrates to write judgments in a timely manner, notes that go missing, misplaced files, incorrect filing of documents, and, of course, heavy workload, are just some of the problems that can lead to horror stories for both plaintiffs and defendants.
Messrs Gollop and Smith recently took a swipe at the CCJ in the matter of System Sales Ltd vs Brown-Oxley, Suttle and Suttle 2006 to which they were a party on behalf of System Sales Ltd, the applicant. The CCJ had been critical of the sloth involved in the handling of the matter. The CCJ noted the case had been filed more than 16 years ago. The region’s highest court noted that case was not complex, yet took seven years from filing to judgment, and eight years from trial judgment to appellate judgment.
“It is time that the judiciary in Barbados adopt practices that prevent this type of justice. Now counsel has joined the activity to deny the litigants an end to the litigation . . . the conduct in bringing this case utilizing a wrong process, and where there is no realistic prospect of success falls into the category of improper, unreasonable and negligent conduct,” the CCJ wrote in its decision.
Of course, this was likely to sting the egos and draw the ire of our men of silk. But perhaps their response is indicative of the problems facing due process in this country. Attacking the CCJ will solve nothing. Egos and ire are as important as the cost of dewdrops. What the CCJ and indeed every officer of the court should have as their focus are the expectations of litigants and the delivery of justice for all in a timely manner.
Sir Marston Gibson is into his fourth year as Barbados’ Chief Justice. It is true that he inherited most of this legal malaise. It is also true that it has not got much better under his watch. He has promised much; he has talked even more. But Barbados still continues to frustrate the expectations and directives of the Caribbean’s highest court.
Imagine the frustration of the Barbadian populace.