Justice delayed is justice denied
It was with consternation that I read in The Royal Gazette of recent edition “that it is unlikely there will be any further jury trials for the rest of 2020”. I am sure that the judge who made this pronouncement did not make it without careful consideration of the dilemma facing the courts.
Of course, the reason for this serious retreat from justice was given as the exigencies of the Covid-19 financial fallout; particularly, the ability of the Government to provide adequate funding needed for the necessary structural and other alterations needed to make the courtrooms and their environs secure from Covid-19.
Of course, because of Covid-19, the Government has had to struggle to adjust its various departments’ budgets to meet the additional financial demands caused by the pandemic — and has had to prioritise those demands.
However, the judiciary is no ordinary government department. The judiciary is one of the three constitutional “pillars” of our democratic constitutional system. The arrangement cannot work without a functioning, efficient, independent and fair judiciary.
Although, historically, there have been tensions on several fronts between the executive and the judiciary, none is more pressing than the executive responsibility to properly finance the judiciary. The executive has historically failed to accept that the judiciary is an equal partner in the tripartite system and has used its control of the purse strings to influence, if not to control, the judiciary.
In Bermuda the judiciary, though supposedly independent, has no independent and separate “money vote” from Parliament and must rely on funding through the Ministry of Legal Affairs, an executive organ. Indeed, a glance at the government website shows the Ministry of Legal Affairs having administrative responsibility for the judiciary.
At all times, particularly in times of national emergencies, the role of an independent judiciary stands out. It is often in national emergencies that the executive behaves in an arbitrary fashion believing it can “do as it pleases” — often with good intention — and it falls on the judiciary to intervene and correct the unlawfulness.
The unlawfulness that is complained of in this case is the failure of the Department of Legal Affairs — the executive — to properly finance the courts so that justice can be properly delivered. I will argue that the executive arrogance and ignorance is shown by one senior civil servant’s comment: “The judiciary will have to get in line with the others for any additional funding”.
Ironically, as I understand, it the judiciary has diligently tried to find Covid-19-secure premises to run Covid-19-safe trials. However, a callous government has failed to supply as little as $29,000 to upgrade a location that could accommodate these safe trials.
As suggested earlier, Covid-19 has brought additional financing difficulties to the Government. However, the underfinancing and equipping of the judiciary existed well before the onset of Covid-19. This situation, as put by a commentator in Britain on the same topic, can best be described as an “abandonment of the judiciary by the Government”.
The executive failure to accept and promote the constitutional status of the judiciary has treated it like any run-of-the-mill department and has failed to provide the support by which justice can be fairly delivered.
In Bermuda, like many other Commonwealth jurisdictions, the Chief Justice is head of the judiciary. Unfortunately, many of the chief justices have failed to promote, assert or demand the proper recognition of the judiciary, either, because they do not want to “rock the boat”, confuse their political role as distinct from their judicial role or are too timid in their position to do the right thing.
In any event, the delivery of justice by the courts is failing. The consequences of delay in trials are clearly documented elsewhere. The adage “Justice delayed is justice denied” is alive and well, especially for those who have been denied bail and are on remand awaiting trial.