by Alicia Nicholls
Access to justice has been recognised as a linchpin of the sustainable development goals (SDGs) which define the post-2015 global development agenda. Much ink has been spilt on Barbados’ crippling judicial backlog but very little has been said about the implications of this status quo for meeting sustainable development goals. Access to justice, recognised in SDG 16, is both an end and prerequisite for sustainable development as it is the means by which rights and development gains are enforced and protected. As a barrier to the access to justice, Barbados’ clogged court system has not only implications for the achievement of SDG 16 but can also undermine achievement of other sustainable development goals.
Barbados has a well-deserved and internationally renowned reputation as a constitutional democracy with strong institutions, respect for the rule of law and a high level of human development which far exceeds that of many fellow small island developing states. The endemic judicial malaise has been the subject of increasing concern and critique. The latest admonishment comes from the Caribbean Court of Justice, the country’s final court of appeal, in its judgment in Walsh v Ward et al, a dispute which originated in 1998. In what has become all too familiar, the CCJ at paragraphs 68 to 70 of the judgment criticised the length of time the case took and the hardships this delay has imposed on the litigants. The Court also noted that its frequent need to comment on Barbados’ excessive delays reveals that this is a “systemic problem”. On these points, there can be no disagreement.
The Nature of the Problem
In 2013 it was reported that there were over 3,000 cases awaiting trial and that there were 362 cases which were still undecided, some dating back to 1993. A plethora of reasons are usually posited for Barbados ’ backlog including late court starts and short court sessions, frequent adjournments, delays in judges’ delivery of written judgments, trial scheduling issues, misplaced files and/or incorrect filing of documents, lack of client/witness cooperation and the heavy workload of magistrates and judges. There is also no fixed time period for disposal of matters. In its 2008 judgment in Reid v Reid, the CCJ suggested “as a general rule 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 at most”. There is no evidence that this suggestion has been adhered to. These problems are further exacerbated by an increasingly litigious Barbadian society. In the above-mentioned report, it was estimated that between 1,700 and 2,000 new cases are filed each year.
The Sustainable Development Impact
Although there has been much criticism of Barbados’ judicial backlog, very little has been said about the sustainable development implications. Sustainable development, as defined in the Brundtland Report ‘Our Common Future’, is “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. Sustainable development depends on a tapestry of interconnected development issues, including poverty reduction, health and education and climate change. This diversity of issues is reflected in the 17 UN member agreed Sustainable Development Goals which succeeded the Millennium Development Goals (MDGs).
Access to justice was not explicitly part of the MDGs but has been recognised by UN Member States in the post 2015 development agenda as both an end and an enabler of sustainable development. Specifically, Goal 16 of the Sustainable Development Goals (SDGs) is to “Promote Peaceful and Inclusive Societies For Sustainable Development, Provide Access to Justice for All and Build Effective, Accountable and Inclusive Institutions At All Levels”.
Access to justice speaks to the populace’s ability to access and obtain redress through the institutions of justice in a manner that is fair, expeditious and equitable. It is fundamental to maintaining the rule of law and allows for the enforcement of rights, non- discrimination and accountability of decision makers. Judicial delays caused by a large judicial backlog limit the access to justice by ordinary citizens. Marginalised groups in society, such as the poor, elderly, disabled, children and victims of domestic violence and sexual abuse are disproportionately affected by judicial delays as they endure significant economic, social and mental hardship or in the case of the elderly, sometimes die before their matter has been satisfactorily settled. Each backlogged case therefore represents at least one victim for whom justice has been delayed and whose rights have not been protected.
Judicial delays also deny accused persons, who often have to wait on remand for years before their case is heard, their constitutional and human right to a fair trial in a reasonable time. According to Prison Studies, about 40% of Barbados’ prison population consists of persons awaiting trial. A large prison population puts a strain on the public purse, resources which could be better used for social development programmes.
Access to justice is also undermined where there is no public confidence in the system. If public utterances are anything to go by, the Barbadian public appears less than satisfied with the current state of the judicial system. Persons who do not have the confidence in the judicial system are more likely to take matters into their own hands.
The current backlog not only threatens the access to justice for citizens but can hurt economic activity and thereby undermine economic development (SDG 8). Expeditious case processing and resolution are important in a commercial context where time is money. Economic and reputational costs associated with lengthy delays in the settlement of matters are problematic not just for big firms, but are even more costly for small and medium sized businesses which may lack the revenues to stay in business while awaiting a decision. Any investor seeking to do business or invest in a country wants to be assured that it has prompt access to the local courts in order to enforce contractual rights and that it will not waste resources or possibly go out of business due to inordinately long waiting times. In the Doing Business Report 2016 Barbados currently ranks poorly (164 out of 189 countries) on the efficiency of the judicial system at resolving commercial contracts before the courts. These are indicators which investors consider and have implications for Barbados’ attractiveness as a place to invest.
What is being done?
There have been numerous attempts over the years to unclog the judicial backlog problem with very limited success. Among the initiatives have been the new Civil Procedure Rules, the requirement of case management conferences, the creation of special purpose courts, the on-going removal from the computer system of “dead” cases, the addition of three more judges and the Chief Justice’s practice direction on backlog reduction. There are also more recent on-going regional initiatives like IMPACT Justice and the JURIST project which seek to address the justice system as a whole, including facilitating much needed digital access to all the Laws of Barbados and court decisions.
But are the steps far enough? Alternative dispute resolution has been proposed as a possible solution, a suggestion supported by this Author in an article in 2012. The pre-action protocols provide that parties to a dispute must engage in “genuine and reasonable negotiations with a view to settling the claim economically and without Court proceedings”. The Court Annexed Mediation Pilot project has been unrolled in the High Court and some of the magistrates courts. However, Barbados still has no Mediation Act or a mediation board. The solutions so far have not been enough to deal with the scale of the problem. Therein lies a critical issue; what is the scale of the problem?
Official judicial data is woefully lacking on critical indicators such as time to resolution of cases before each court, the size, age and composition of the backlog in each court, the number of outstanding judgments, the average time each judge takes to render a judgment, and average stay on remand. In an effort to allow for comparative measurement of progress for countries, the UN will be developing global indicators during the next year to facilitate data gathering for each goal and target. Countries are expected to formulate their own indicators based on their own unique circumstances. Data on these indicators would provide local authorities with a comprehensive understanding of the scale, nature and causes of the backlog problem which would assist in the formulation of performance goals and the type of interventions needed. Without this any changes would simply be cosmetic.
Additionally, we the Barbadian public have heard of many judicial reform initiatives but very little on what they have achieved thus far. Progress reports on the impact of these reform initiatives should be published to help restore public confidence in the system.
An efficient and effective judicial system is essential for upholding the rule of law, safeguarding rights and ensuring the smooth functioning of democratic processes, all of which are needed for sustainable development. The long shadow of Barbados’ case backlog creates pressures on the courts, delays the process of justice and redress, particularly to the disadvantaged, and erodes public confidence in the system. Delays in the settlement of commercial cases can hamper business activity, potentially undermining economic development. Targeted interventions based on a data-supported understanding of the nature and causes of the problem are needed, while public reporting on gains made should inspire public confidence that change is on its way.
Alicia Nicholls, B.Sc., M.Sc., LL.B. is a trade and development consultant with a keen interest in sustainable development, international law and trade. The Author wishes to thank everyone who provided insight for this article but any errors or omissions are solely those of the Author’s.
