Reflections On The Perceptions Of Justice In The Commonwealth Caribbean - November 2002
REFLECTIONS ON THE PERCEPTIONS OF JUSTICE
IN THE COMMONWEALTH CARIBBEAN
It is now over seven years since I left academic life to enter the world of politics. Sometimes, I think of it as an interregnum, an enforced purgatory. As a former academic, I constantly reflect on the tensions of academic practice and the realities of governance. Influenced by this, I have accepted the temptation to share with you the thoughts of a practicing politician far removed from academia, on some issues confronting our judiciary and our society. I am mindful of Chapman’s comment that “the world of politics is always twenty years behind the world of thought”. I believe that Chapman got if wrong, particularly where legal matters are concerned. In my experience, the two institutions that are most resistant to change of any kind is the Police Service and the Judiciary. So, it is the reverse. Politicians are way ahead of the judicial and legal intelligentsia in matters of legal and police reform.
AN UNFLATTERING PERCEPTION
I want to start by suggesting that everywhere throughout our region the perception of our judicial system is unflattering. Some, ostensibly to disguise their anglophile convictions, their lack of belief in themselves and our societies, utilise the collective perceptions to justify their opposition to abolition of appeals to the Privy Council. They argue that we must “fix” the problems before appeals to the Privy Council are abolished. At most, this argument is disingenuous. After all, the problems exist despite and inspite of the Privy Council. What I readily concede is that our failure to deal with our judicial problems has undermined confidence in the establishment of the Caribbean Court of Justice.
There is the deep rooted belief that our judiciary has to a large extent not lived up to the expectations of our peoples. Some hold the view that our Higher Courts have betrayed our trust and confidence. Others point to the fact that cases take years to reach the Courts and when they do, the judiciary does not always deliver timely, reasoned and erudite judgments. Distrust of lawyers and judicial personnel is endemic and widespread. Some believe that the criminal justice system is near collapse, assisted by inconsistent signals from magistrates and judges. Indeed, it is felt that the Courts are citadels of sympathy for criminals who commit outrageous crimes. Many countries, including Saint Lucia, continue to operate a judicial system fashioned by legislation inspired by the colonial authorities. To this day, the jurisdiction of the magistrate courts continue to be governed by legislation enacted in the 1950s. We continue, unperturbed, with the ceremony of the Assizes replete with a parade rather than establishing a Criminal Division of the High Court to hear and dispose of criminal cases throughout the year.
OUR UNDERSTANDING OF JUSTICE
No deep incisive reforms to our judicial systems can succeed unless we refashion the meaning we ascribe to justice and its philosophical underpinnings. On independence we inherited an understanding of the meaning or concept of justice. Justice was served and met once a person charged with a criminal offence received a fair hearing and was punished in accordance with the Common Law or a law enacted by the Parliament. On the Civil side, once proceedings were at an end and judgement delivered, the perception was and still is that Justice had been done. As Caribbean people, we were satisfied that once the courts were physically in place and a right of appeal to the Privy Council was preserved justice would prevail. In other words, Justice had no more than a narrow technical meaning and limited scope.
Is our perception of the meaning and scope of justice right? I am firmly of the view that our present perception of justice is too narrow, and a regrettable legacy of our past. I believe that while we adhere to the universalistic values of Justice, we must, nevertheless, fashion our own understanding of Justice.
As time is short, I will give at least two reasons why our present perception of justice must change if we are to develop our societies and peoples.
The first is that the law can no longer lay exclusive claim to justice in our societies. The search for justice is a shared responsibility. In developing democratic societies such as ours, our Governments have a social and moral and constitutional duty to create a society based on social and economic justice. In independent societies such as ours with a recent colonial past we have an obligation to our peoples and citizens to create a level social and economic playing field, and we must do so by our socio-economic policies and legislation. Free access to a Court may mean nothing to a man or woman who suffers one form of social or economic injustice or the other. In recent times, we have seen judgments from the Indian Supreme Court on the rights of slum city dwellers to earn a living, [See Tellis v. Bombay Municipal Corporation (1987) Law Reports Commonwealth (Constitutional Law) 351]. We have also seen the recent judgments from the South African Constitutional Court on the rights of South Africans to housing and medicine for the treatment of HIV/AIDS disease; [See Minister of Public Works and Others v. Kyalami Ridge Environmental Association and Others delivered on the 29th May 2001 and Minister of Health and Others v. Treatment Action Campaign and Others, delivered on the 5th July, 2002.]
To some, these judgments may appear revolutionary but in my view they are not. They reflect the developing requirement of social justice as an integral and indispensable facet of constitutional government and the rule of law in a free and sovereign democratic state.
The attainment of social and economic justice is a matter for the Executive and Legislative Branches to achieve by their policies and legislation. The Judiciary must, however, play its part by taking a “purposive view” of the Constitution when reviewing legislation affecting social justice and the public interest. All of our Constitutions recognize the public interest as a governing factor for the consideration of the Executive, Legislative and Judicial Branches of Government. [For example, see section 1 of Chapter 1 of the St. Lucia Constitution Order 1978.]
Our constitutional mandate requires that our Courts and its Magistrates and Judges act not only independently and impartially but in a manner which will command the trust and confidence of our peoples. There must be no suggestion of impropriety. There must be full confidence that all sides both private and Governmental are given a fair and full hearing. Too often the perception is that the scales of justice may be unevenly weighed because of personalities or simply because a Government is a party to the litigation.
CRISIS IN MAGISTRATES’ COURTS
Over the years our magistracy which was placed somewhat illogically under the rubric of the Public Service under the Constitution, has become largely dysfunctional. Frankly, our magistracy is on the verge of collapse. Everywhere, the Magistrate Courts have become overwhelmed with an enormous overload of cases. A recent survey in the OECS on the performance of Magistrate Courts particularly on the time it takes to dispose of cases confirms the predicament. The Report says,
(1) “The average length of time between the date the offence occurred and the date the charge was laid with the Court was 51.5 days”.
(2) “For over 56% of cases, under 30 days elapsed between the date of offence and the date the charge was laid with the Court”. [Page 3]
(3) “The average length of time, between the offence and case completion is 202 days”. [Page 4]
(4) “The average length of time (that is the length of time) between the offence and the date the notice of appeal is filed is 146 days……The average length of time, (that is the length of time) between the date of the offence and the date of the appeal hearing is 331 days”. [Page 5]
Much of the disrepute which afflicts the judiciary is explained by the extraordinary low esteem surrounding the magistrate courts. Magistrate Courts are the fora of justice for the masses. The Report which I referred to earlier observes that “Magistrates attended to 90% of the matters that come up for adjudication in the OECS”. There is an entrenched belief that the poor and under privileged are being deprived of justice in these courts. Perceptions of the judicial system are largely fashioned by the performance of these courts.
Everyone is to blame. The Higher Judiciary has abdicated its responsibility to insist on accountability of magistrates. The Magistracy is on auto-pilot. There is no purposeful or decisive leadership. Civil Society blames the Executive for every problem, even those which, jurisdictionally, is in the domain of the Chief Justice. Often times, the Executive is unsure of itself and its responsibilities. Unquestionably, the Executive has allowed the infrastructure to deteriorate and to suffer decay. The buildings which Magistrate Courts occupy do not reflect what the OECS Report describes as “the dignity that should be characteristic of the administration of Justice”. Lawyers are as guilty as anyone else. They utilise “delay” as a weapon to tire and frustrate magistrates, prosecutors and witnesses until, eventually, their cases are struck off.
In my view, part of the problem inheres in our Constitutions. In [Hinds V R [1997 A.C. 195 at 2186] Lord Diplock, confirmed that judges “are given a greater security of tenure than [magistrates]”. While this is undoubtedly the case, the Constitutions never clarified the judicial responsibilities of the lower judiciary, or for that matter, the responsibility of judicial managers and functionaries of the Executive in respect of the Magistracy. The issue of accountability of Magistrates, as indeed that of the entire judiciary, requires clarification. As I shall argue later, accountability and Judicial independence must not be confused.
As our societies grow, the need to expand the jurisdiction of the magistracy increases. Unquestionably, we must create and establish a New Magistracy consistent with the provisions of our Constitution and the separation of powers. There are issues to resolve – and here I speak only for Saint Lucia. First, to which Authority are magistrates accountable for the performance of their functions and duties: is it the Chief Justice or the Minister of Justice, or is it a shared responsibility? Put bluntly, whose responsibility is it to ensure that magistrates work at least eight hours a day and properly record the appeal process? Secondly , is the problem solely one of remuneration, or, of independence from the executive. Will the problems go away by increasing the salaries of magistrates, or as one report recently suggested in the case of the OECS, increasing salaries and creating a Regional Magistracy? I think not.
A VIOLATION OF TRUST
Of even greater worry and concern is the perception that the legal professions have violated the trust of our peoples. There was a time when the dream to become a lawyer, a Barrister, and Advocate was based on a deep sense of honour, a civil desire to protect our peoples, advance our system of justice and development of our jurisprudence. That dream has been replaced by greed and incompetence. Our lawyers have lost their pivotal role in the development of justice in our states. Money and the accumulation of money have become the motivating fuel. One of my esteemed friends put it this way, “fees provide the oxygen of the profession”. Fees in return for competence and experience is one thing. Greed coupled with incompetence is a wholly different matter. Once in private practice, lawyers seem unable to resist the vagaries and vicissitudes of our societies. Just as the drug trade has blossomed, so too has the professional practice to protect drug traffickers, launderers, and their “hit men”. There are lawyers who are willing conduits of launderers, who utilise their client accounts to protect proceeds of drug trafficking and who are themselves in receipt of such proceeds for personal benefit. Legal professional privilege has become a cloak to cover criminal conduct. The profession is being criminalized while others watch helplessly.
In recent times, I have noted a significant increase in the number of young lawyers who have succumbed to the temptations surrounding them. They accept fees and do not deliver services. Some pilfer the accounts of their clients. One thing is clear to me. We are unable to regulate ourselves. Discipline and regulation can no longer be trusted to the profession. Just as accountability is expected of politicians, public officers, business executives and others, so too must accountability be demanded of lawyers. Lawyers cannot continue to be judged by their peers. If our societies are to be protected from further professional decadence and incompetence, then it has become necessary to create independent mechanisms to monitor and discipline the legal profession. The issue becomes even more critical as there is fear in some quarters that it is a breach of the fundamental right of freedom of association to compel lawyers to become members of Bar Associations even if it is in their self- interest. If that is indeed the correct constitutional position, then some lawyers will exist beyond the reach of these Associations.
Lawyers, as a rule do not wish others to judge them. Lawyers and judicial personnel treat the legal system as their domain, or to put it crudely, their property. They constantly assume that the legal system exists primarily for their benefit. The legal system belongs to civil society. The legal system exists to resolve the problems of Civil Society. It is for Civil Society to re-assert the standards which it requires.
PERFORMANCE AND COMPETENCE OF THE JUDICIARY
In some quarters, questions are being raised about the performance and competence of judges. A particular problem is the delay in bringing justice to the frontline by the failure to expeditiously deliver judgments. Judgments must be reasoned and should reflect a level of competence that commands respect not disrespect or ridicule. Accordingly, unless our Courts and Judges carry the constitutional mantle to the satisfaction of the people, Justice will be seen as an elitist game and not as a platform for equality and the development of our societies on sound constitutional principles.
The old saying that justice delayed is justice denied has become the axiomatic expression of the popular perception. The legal system is widely perceived as weighted down by bureaucratic inertia, rigged with loopholes and arcane regulations and subverted by conniving lawyers.
With some exceptions, our Governments have not invested sufficiently in the maintenance and development of our superior and appellate Courts. However, when we do so, we continue to be disappointed by the complacency of our administrations of justice and performance of the Courts. Accordingly, unless we develop our Caribbean Court of Justice and structure our indigenous Courts in away that is calculated to serve us all fairly and expeditiously, justice as a social democratic and constitutional way of life will be compromised.
ACCOUNTABILITY OF THE JUDICIARY
In my view, one of the biggest challenges facing the judicial system is that of ensuring accountability of judicial personnel. Conveniently, some confuse judicial independence with judicial accountability. While an insistence for certain forms of accountability can compromise judicial independence, it does not follow that accountability, by definition, threatens judicial independence. Judicial independence, says Sir Guy Greene, refers to the “capacity of the courts to perform their constitutional function free from actual or apparent dependence, upon any person or institutions, including, in particular, the Executive arm of government, over which they do not exercise direct control”. [Sir Guy Green, the Rationale and Some Aspects of Judicial Independence” (1985) 59 Aust. L.J. 135 at p.135]. Judicial accountability on the other hand seeks to answer the question whether judges have performed competently and satisfactorily, the very functions for which they were clothed with judicial independence.
It is difficult for me to understand the prevalent belief that for judges to be “truly independent” they must not be accountable whether to the people or the Executive or Legislative arms of the State. As far as I am concerned, there is no constitutional basis for that belief. Our judiciaries are funded by our taxpayers. The Executive and Legislative 4’anches are accountable to the people for the expenditure of public funds. If accountability is one of the cornerstones of our democratic systems of Government and the rule of law, there can be no legitimate basis for the Judiciary to seek refuge from public accountability under the guise of “independence and impartiality”. Judicial independence and impartiality are intended to ensure the integrity of the judicial process, not immunize the judiciary from public glare, public scrutiny or the need to account for performance, management or expenditure. Our Constitutions do not entitle the judiciary to claim a safe haven from accountability. On the contrary, Constitutional Government demands openness and accountability from all of the three branches of the Government.
I suspect that ultimately, it has to be left to the various Judicial and Legal Services Commissions to review, on a continuous basis, the performance of judges. However, it is my view that the broader questions of the management of the judiciary, the utilisation of resources, the delivery of judicial services can be addressed by a periodic review of the judicial arm of the state by an independently established Judicial Review Commission. Such reviews can be undertaken triennially. Frankly, I have no objection if such commission were appointed by the Chief Justice after appropriate consultation. Incompetence and laziness cannot be allowed to parade in our judicial corridors.
THE ROLE OF GOVERNMENTS
There will never be a positive perception of justice unless all branches of Government respect the rule of law. Once judgments of the Courts are delivered, we all, and in particular Governments, have an obligation to comply with the judgments and obey promptly the orders of the Courts. Compliance is an indispensable adhesive towards the achievement of true justice. Any other approach by our Governments would lead to chaos and the dismantling of our present system of justice and the destruction of the rule of law and the foundation for the future of justice. If we allow that to happen, we will have destroyed all hope for the development of our own jurisprudence and true independence. If we as Governments are dissatisfied with judgments of the Court, then we must change the law in a manner consistent with the Constitution, otherwise we will disappoint those who expect us as Leaders to assist them in developing their perceptions of justice, not to destroy it. If we cannot change the law consistently with the Constitution, we must obey it and obey it promptly.
ENDING JUDICIAL SUBSERVIENCE
Finally, I want to turn to an issue that has attracted our collective attention - abolition of appeals to the Privy Council. I am sometimes astounded by the suggestion that justice is achievable or guaranteed simply because of our existing right of appeal to the Judicial Committee of the Privy Council. Forget Kenny Anthony, the politician, the Prime Minister. As a Caribbean person, I find such a belief to be offensive and an affront to my integrity as a free man in a sovereign independent state. We cannot become masters of our own constitutional destiny if we fail to become the masters of our own judicial history and jurisprudence.
Unquestionably, the existence of a right of appeal to the Judicial Committee of the Privy Council affects the confidence of our Courts. At times, our Courts appear to be always looking over their shoulders across the vast ocean of sea towards the Privy Council for applause and approbation.
This subjugation or subservience of judicial thought and independence cannot be justified in independent and sovereign states. As I said at the recent Heads of Government Conference in Guyana, it is,
incomprehensible that any citizen of our Region, valuing his independence, should still wish to see our highest court perpetually domiciled within the erstwhile colonial capital. We value our independence yet we cannot trust ourselves. It is amazing that we want taxpayers of the United Kingdom to continue to pay the cost of our judicial freedom. That there are still pockets of such thinking, represents for me, the greatest psychological irony of Caribbean Independence.
No one should apologise for the political imperatives which urge the establishment of the Caribbean Court of Justice. The issue is not solely one of sovereignty, since our Constitutions empower us to repeal the provisions which guarantee access to the Privy Council. It is also, one of principle. In a previous incarnation as a lawyer in 1973,the former Chief Justice of Trinidad and Tobago, Chief Justice De La Bastide, put it this way:
I say it is inconsistent with the status of an independent country to acquiesce in a situation where apparently on a permanent basis, or even on a temporary basis, you abdicate from the responsibility of making the final decision in judicial matters yourself and ask somebody else to come and do that for you… As a matter of principle, I think it is objectionable.
Consider, for a moment the unthinkable: what if the British Parliament decided to enact legislation and abolish appeals to the
Privy Council? Are we, as lawyers, to take comfort from the dictum, that such action is “possible in theory but unthinkable in practice”.
There is, however, a dimension that is sometimes lost in the debate: As all of you will know, protection of the law is worthless if you cannot get access to the courts. As Lord Diplock declared in Attorney General of Trinidad and Tobago v McLeod , [ER 694 at p.701] All “access to a court of justice [is] itself, the protection of the law to which all individuals are entitled”. De La Bastide once asserted that appeals “to the Privy Council involves necessarily such enormous expense that that right can be used as a tool of oppression”. The use of the word “oppression” is perhaps putting the argument too stringently. The fact is, appeals to the Privy Council are costly. Save for appeals in forma pauperis, only litigants who are able to afford the costs eventually appear before the Privy Council. Justice before the Privy Council is neither easily accessible nor popular. It is elitist, available only to Governments and litigants with means and property. The Caribbean Court of Justice affords greater opportunity of access to justice, and in the result, protection of the law. The Caribbean Court of Justice will widen and deepen access of litigants seeking final determination of their matters. I expect a significant increase in final appeals from across the region.
Mr. Chairman, Principal, students, I have spoken not only as the Prime Minister of Saint Lucia but also as a Prime Minister of an OECS state. Some may wish to interpret my comments as an indictment of the judicial system of the OECS Countries. That is not so. Indeed, the present Chief Justice is presiding over sweeping changes in the OECS Court system. New rules of civil procedure have come into force. A pilot project on mediation will shortly be introduced in Saint Lucia. Automated Court Reporting will replace manual note taking by judges. A Regional Magistracy Study has been completed and will shortly be considered by the Heads of Government of the OECS. At the domestic level, major reforms are also underway. The Civil Code of Saint Lucia, enacted in 1879, is finally undergoing revision and reform. A new Criminal Code is due for enactment before the end of the year. Revision of the laws of Saint Lucia is in train. These are exciting times. The distinguished Chief Justice, Sir Dennis Byron, and the Attorney General of St. Lucia may yet convince me that the world of legal thought and practice is indeed ahead of the world of politics.
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