BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate
MUSINGS: On nearing fifty… (i)
By Jeff Cumberbatch
As Barbados readies itself to celebrate the 49th anniversary, and thereby to enter its fiftieth year, of sovereign statehood at the end of next month, it is appropriate for us to conduct a self-assessment of its journey in all respects so far and to prepare for the next fifty years; despite the fatalistic certainty of those few who proclaim the imminent end-of-days and despite the fact that we are not a people ordinarily given to planning anything beyond a five-year period at most.
In the circumstances, this essay commences a non-sequential series of critical observations on Barbados as it is now and of those reforms that might be contemplated adequately to confront the challenges that lie ahead of us. Of course, given the nature of my alleged expertise, this examination will focus mainly on those legal issues encompassing governance, social relations and the resolution of disputes.
Concerning this last, a decision delivered last Thursday by our apical court, the Caribbean Court of Justice, that treated an assortment of matters touching our judicial system provides as good a starting point for this analysis as any other.
While the decision provides a useful forensic examination of technical legal issues such as the doctrine of proprietary estoppel, rights of pre-emption, the enforceability of contracts, unjust enrichment and the award of costs, thus providing ample material for the undergraduate syllabus in Law, their Lordships also took some time out to comment on less arcane and, perhaps, more populist matters such as the inordinate delays in the judicial resolution of disputes locally and the requirement of judicial self-recusal on the basis of apparent bias.
While the latter consideration is not an immediate national concern and more likely to be of immediate interest to the prurient, the text of the judgment does reveal, as it was termed by Saunders J, “a sorry affair” in this regard.
The matter of delay is much more integral to national development, especially if we are seeking to project and maintain our reputation as the ideal jurisdiction in which to effect commercial investment. The dilatory resolution of disputes scarcely comports with such a proud boast.
What makes last Thursday’s strictures even more chastening is that this is not the first, nor the second nor, indeed, the third occasion on which our highest court has had to make such an observation. As noted in the leading judgment of President Byron, this dispute had commenced some 17 years earlier, winding its way through the court of first instance and the Court of Appeal for seven years in each instance, including a five year delay in the delivery of judgment by the trial judge and a more than six year period between the filing of the appeal and the hearing in the court above.
Byron P was not sparing in his comments – “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…The unfortunate frequency of our lament suggests that the problem is systemic…”
And at paragraph 69 of the judgment he delineated the various occasions on which the court had earlier commented adversely on local delay in the administration of justice. One example should suffice. As many as ten years ago, de la Bastide P (as he then was) wrote, “We would be failing in our duty if we did not express our strong disapproval of judicial delays of this order. They deny parties the access to justice to which they are entitled and undermine public confidence in the administration of justice…”
As the learned former President notes, and as borne out by the epigraph to today’s column, the civic entitlement of the litigant to a speedy resolution of a legal dispute is of hoary vintage. Indeed, it is even a constitutionally guaranteed right of the citizen. According to section 18(8) of our supreme law, where relevant, “… where proceedings for such a determination [of the existence of any civil right or obligation] are instituted by any person before such court…the case shall be given a fair hearing within a reasonable time…”
Even a member of the local judiciary has had cause to highlight the phenomenon. In July 2014, then Justice of Appeal Peter Williams, commenting on the scenario of an accused that had served seven years in prison without ever having his appeal against sentence determined, observed that the law “does not countenance the lack of resources, systematic delays or existing court backlogs as exculpating the State from its constitutional and human rights obligations. The executive authority of Barbados therefore has an inescapable duty to organise and supervise its judicial system so that the fundamental constitutional right of the individual to a hearing within a reasonable time is not infringed…”
Having recognised that there is a seemingly intractable problem in satisfying this guarantee, at least currently, the logical next step should be intelligently to seek to identify the source (s) of the difficulty and to take effective measures to eliminate it (them). A most enlightening discussion recently with a member of the Utter Bar (Queen’s Counsel) persuades me that the matter is a rather complex one that will necessitate an elemental adjustment of mind-sets and a sea-change in functional relations between the Bench, Bar and the Registry. He argues quite cogently that the current state of affairs is owed principally to a sorry cocktail of the partisan politicisation of the system on more occasions than one; an enervating lack of trust between the major players; and the prevailing economic crunch that prevents adequate financial investment by the state in the justice system.
Given the fundamental nature of the matters he identifies as causative, it must be accepted that the description of the issue as probably “systemic” by Byron P may not be too far off the mark. It should be a urgent concern of the state that the matter is receiving such uninspiring notices so frequently from its highest court, apart from causing it to be in contravention of its constitutional undertaking as argued above by Peter Williams JA.
After all, potential investors are legally advised as a matter of course and I suspect that few would be willing to close their eyes and ears to the probability that a legal dispute involving substantial sums in a contemplated jurisdiction might not be too speedily resolved.
To be continued…