The cost of excessive delays in Dominica's justice system

Both learned professionals expressed dissatisfaction with the status of our system of justice and highlighted, in particular, the unnecessary, inordinate and chronic delays, which in part, have resulted in a system that is inefficient, slow and frustratingly clogged.

Chief Magistrate Baptiste has highlighted several administrative challenges and/or hindrances to the effective functioning of the magistrates’ court in Dominica. She cited the frequent requests for adjournments of cases by lawyers as one of the main reasons for delay in the magistrates’ court.

She explained that the function of the judicial branch of government is to “interpret, apply and enforce the law” but in order for the court to perform its functions in an efficient manner and ensure that it delivers timely justice, it must be adequately equipped and resourced to do so. This is the indisputable truth, the whole truth and nothing but the truth.

Dominicans can identify with the sentiments expressed above. We continue to bemoan the inordinate delays at all levels of our justice system, which include delays at the level of the Court of Appeal from which we now await the determination of what I consider to be a poor judgment delivered by Justice Gertel Thom involving the illegitimacy of the nomination and election of Messrs. Skerrit and Saint Jean as members of parliament in Dominica.

Shamefully, the court of Justice Thom took over two years before it could consider the maters raised in the petition filed by members of the opposition United Workers Party (UWP). Upon the conclusion of the hearing, Dominicans were left biting our finger nails in anticipation of the judgment, which was significantly delayed.

To make matters worst, Justice Thom did not even bother to bless us with her presence in delivering her poor quality judgment. The said judgment was emailed to the court in Dominica and read by Justice Cottle, who apparently advised the victors of the outcome before officially releasing the judgment.

In light of the considerable anxiety and stress that Dominicans have endured as a result of the accumulated delays in bringing this matter to a close, it is hoped that we will not be required to wait long after 13 November 2012 following the deliberations of the Court of Appeal in order to know for sure who our validly elected members of parliament are.

It is regrettable that after three years following the general elections in December 2009, this matter remains pending for final determination by the court. Dominicans are concerned about the untimely disposition of this matter simply because the timely disposal of matters brought to the attention of the court by petition and/or motion ought to be an elementary part of any justice system.

Lest we forget, it was the former Sir Hugh Rawlings who uttered the right words, albeit he did very little in his capacity as Chief Justice of the OECS Supreme Court to address the situation of unnecessary delays, which plague our judicial system. He once advised us that we the people of the Eastern Caribbean have a right to know who our legitimate members of parliament are and we are entitled to the constitutional right to a fair hearing within a reasonable time frame.

It was Sir Rawlings, who so forcefully advised that it goes without saying, the essence of any proceeding before a judicial tribunal is the search for justice and the importance of prompt dispensation of justice cannot be over emphasized and overlooked. Justice must be done and seen to be done at all times to all parties, taking into account the facts, evidence and the applicable rules of law.

The Former Chief Justice has repeatedly embraced the wisdom in the legal maximum, Justice delayed is justice denied without ensuring that maxim guides the work of the court in improving the efficiency of the justice system. It is of paramount importance that in our young democracy legal disputes are resolved in a timely manner. Therefore, every citizen of the Commonwealth of Dominica, red, blue or green must join in the chorus of concern over the adverse impact of excessive delays in our justice system.

Clearly, the bug of delay has infected every tissue of the justice system in Dominica. It has even contaminated the relatively new Integrity of Public Office Commission (The IPO). In March of 2012, we were advised that the IPO would commence investigations into a complaint filed before it by journalist Mr. Lennox Linton with regard to the inexplicable accumulation of wealth by Prime Minister Skerrit. To date, seven months later, the public has not been advised of the progress- if any, in this matter.

We are also aware of the inordinate delay by the OECS Court of Appeal, which deferred its decision in the case involving Mr. Linton and chattered account Keiron Pinard Byrne on 02 May 2012. Mr. Linton appealed the judgment of High Court judge Brian Cottle. However, more than five months have now elapsed and the judgment of the Court of Appeal remains pending.

This bug of delay resides deep within the Dominica Police Force and has tainted the investigation (or lack thereof) of criminal matters, particularly with regard to the fire bombing of the home of Mr. Glenworth O. N. Emanuel.

In fact, in a related case, the bug of delay is used to the advantage of certain well-connected individuals to the detriment of the rule of law in Dominica. We cannot forget the standstill status of the case involving attorney Stephen Isidore, who is facing criminal complaints filed against him in the magistrate’s court on 19 November 2010 by his former business partner Mr. Glenworth O. N. Emanuel of the former law firm, Emanuel, Isidore & Associates.

Attorney Isidore faces 44 criminal counts i.e., 35 counts of obtaining property by deception, 5 counts of false accounting, 1 count of false statement by a firm’s partner and 1 count of theft. Following the issuance of a warrant of arrest by Chief Magistrate Evelina Baptiste, a group of high powered senior attorneys sought and obtained an order from the High Court to stay the proceedings at the magistrate’s court, pending the “expeditious” judicial review of the exercise of the authority of the Chief Magistrate.

This was in December 2010 and the bug of delay continues to pollute our justice system to death.

The unreasonable and undue delays in our justice system have unfortunately become a structural and systemic reality, which could have an impact on the independence of our judiciary or at least the unfavourable perception of the public of that independence. The widespread delays in our justice system can potentially subvert the entire judicial process and eventually displace the independence of the judiciary itself, while demoralizing those who wish to fight against it.

Ultimately, we may experience one of the more common negative effects of delay in the justice system when ordinary citizens begin to take the law into their own hands in search for justice, especially when their political leaders have brazenly declared that no law and no constitution can prevent them from doing whatever they wish.

We can all agree that inordinate delays do not only adversely affect the administration of justice, but on every occasion it inflicts unnecessary anxiety and suffering on those seeking justice. Litigation is a stressful and costly process and the findings and conclusions of the court in its judgment have far reaching implications. For that reason, timely and efficient administration of justice is a requirement of the rule of law.

It helps improve the integrity of the justice system and promotes the healthy relations among citizens. Consequently, it is imperative that our courts give priority attention to the fair and prompt dispensation of justice. It is necessary for judgments to be delivered within a reasonable time frame. What is a reasonable time may, of course, vary according to the complexity of the legal issues, the volume and nature of the evidence and other factors.

But the ordinary citizens have a strong sense of what is reasonable and the court has an obligation to match the expectation of the ordinary citizen.

In some cases delays in producing a judgment may prevent the parties from reaping any benefit that they would have enjoyed from an earlier judgment. For instance, having served over three years as Prime Minister, the judgment of the Court of Appeal from its hearing in November 2012 cannot reverse the accumulated damage to the country’s economy, image and reputation. Irrespective of the merits of the appeal, the OECS Court of Appeal should apologize to the citizens of the Commonwealth of Dominica for the excessive delay in giving consideration to this matter and for significant blow that the judgment at first instance has caused to our democracy, our constitution and the rule of law.

The inordinate and unreasonable delay of the type that we have experienced in this case continue to reflects adversely on the reputation and credibility of the justice system in the OECS.

The right to a speedy trial is in itself an implicit element of the right to a fair trial or the right to personal liberty and security. Any impediment to the effective realization of the right to an expeditious and fair trial necessarily violates not only the right to personal liberty, but also the right of a victim to what would otherwise be an effective remedy and/or prompt redress

The importance of prompt dispensation of justice cannot be overemphasized or overlooked. Ironically, the very lawyers, magistrates and judges who lament delays in the justice system are often the ones who seek more adjournments and who take eternity in considering matters before them and delivering prompt judgment. We note that the current Chief Justice (AG) has advised that the court’s lack of resources will not negatively impact the quality of justice rendered in the OECS. We are thankful for the assurance but the reality may not support such confidence.

The intent is not to advocate speed as a priority over the quality of substantive justice. Our courts are expected to take time in seeking truth so as to know the justice of a case. The quality, soundness and effectiveness of the justice that is delivered should not be sacrificed for speed, lest we proudly adopt a motto for our system; "Providing faulty decisions faster.”

Nevertheless, we can all agree that three years without knowing who our validly elected members of parliament are is delayed justice, especially as the individuals concerned include the Prime Minister and a minister of government, who exercise executive powers on behalf of the state. Whatever the excuse may be, we can be sure of one thing that the damage already inflicted on the psyche and institutional framework of Dominica over the last three years have been enormous.

This level of delay in our justice system is inexcusable and cannot be accepted as reasonable.

Whatever the reason (s), for the unreasonable and inordinate delays in our judicial system, the problem is real and it continues to undermine the reliability, predictability and integrity of the system. The unreasonable delays in our justice system reflect adversely on the reputation and credibility of the system as a whole, and reinforce the negative images that the public has towards the court and its judicial officers. This unfortunately, undermines rule of law

In criminal matters, our citizens have a constitutional right to be tried without undue delay. This right is recognized by international and regional human rights instruments. This right is explicitly provided for in articles 9 (3) and 14 (3) (c) of the International Covenant on Civil and Political Rights (ICCPR) and Article 6 of the European Convention on Human Rights (ECHR). Any impediment to the effective realization of the right to an expeditious and fair trial necessarily violates one’s right to effective remedy and effectively undermines the collective confidence of members of our society.

In a well known case considered by the Caribbean Court of Justice (CCJ), the Court ruled that except for extenuating circumstances, the upper limit for delivery of judgments should be six (6) months. The Court expressed deep regret that it had to once again comment adversely upon the excessive delays in the delivery of reserved judgments. It stated,

“The outcome of the hearing is clearly a key part of the hearing process. In Reid v Reid [1], Saunders J in delivering this Court’s judgment stated, “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.”[2]

According to the Court, while appreciating that circumstances as to facilities, manpower and other resources and what is a reasonable time will vary according to circumstances, it is worthwhile noting the recent approach of the English Court of Appeal in Bond v Dunster Properties Ltd,[3] where Arden LJ stated,

“This extraordinary delay clearly called for an apology and, if any existed, an explanation of the mitigating circumstances... The matter goes further than just the effect on the parties. An unreasonable delay of this kind 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. If there were regular delays of this order, the rule of law would be undermined.”

In a 2009 Bahamian case,[4] the issues of appealing findings of fact made by a trial judge and of delay in delivering a judgment were considered.

There was a delay of sixteen (16) months between the trial and the delivery of the final judgment. The Privy Counsel considered the 16 months of delay as unreasonable and excessive. The decision reaffirms the principle that inordinate delay in delivering a judgment is not to be tolerated as the resulting delayed judgment can cause an injustice to the losing party, as is presently the case in Dominica.

Accordingly, where delay in delivering a judgment is over twelve (12) months, there is a great likelihood that the judgment may be either unsafe and/or cause injustice to the Parties.

The issue of excessive delays in our courts must be one of our fundamental concerns as this situation is resulting in corruption of our constitutional rights and it comes with significant hidden costs, which the ordinary citizens must pay including the award of damages for precisely that reason. Moreover, the lengthy nature of proceedings, the lack of due process and the uncertainty of outcome, all generate a climate of restlessness and demoralization, which exacts a heavy cost, not only on the Parties but on the wider society.

The untimely disposition of cases in our justice system should be of concern to all members of our society not only because it ought to be an elementary part of any justice system but because of its impact on the parties seeking justice and on the attitude of all other concerned members of society. Delay in justice system undermines the confidence of the public in the system.

It results in wasted man hours spent waiting in court. It compromises the veracity and accuracy of evidence and witnesses. It causes stress and anxiety to victims, the accused, family members of the accused and the victim and litigants themselves and it even affects the socio-economic progress of the society.

Above all, it reflects adversely on the reputation and credibility of the justice system. Te truth is timely delivery of justice is a human rights issue that includes the entitlement of an expectation of timely, reasonably expeditious and fair trials by an independent and impartial court.

According to the new Acting Chief Justice, the OECS Supreme Court shall be addressing the issue of delay in the Court. However, this almost sounds like déjà vu. We have heard this before. Nevertheless, we support any effort of the Court to remedy the chronic problem with the active support of the Bar Association.

Hopefully, the Association will undertake a project in collaboration with other stakeholders in identifying the causes, impact, and consequences of unnecessary and inordinate delays in the disposal of cases in our justice system and genuinely seek ways of improving the expediting court proceedings and to ensure that we have a sound legal system, which we can all be proud of.

[1] [2008] CCJ 8 (AJ) at [page 22]

[2] Honourable Mr. Justice Hayton , CCJ Appeal No CV 7 of 2010 , BB Civil Appeal No 30 of 2006 of 8 July, 2011

[3] [2011] EWCA Civ. 455

[4] Steven Kent Jervis (2) KST Investments Limited v Victor John Skinner [2011] UKPC 2 PC appeal No 0103/2009.