I’ve been doing some research lately on the Caribbean Court of Justice (CCJ). This Court has several unique highlights. One such highlight is that the Court performs a dual function. It has original jurisdiction over the application and interpretation of the Revised Treaty of Chaguaramas. It also has appellate jurisdiction over criminal and civil matters for Contracting Parties that agree to this function (so far Belize, Guyana and Barbados). The Court has released a number of interesting judgments, including this case.
With regards to the Court’s appellate jurisdiction, there was an interesting discussion in Frank Errol Gibson v Attorney General about a defendant’s constitutional right to be provided – by the State – with adequate facilities in conducting defense preparation, as well as the meaning of a trial within a reasonable period of time under the Constitution of Barbados. Will this be a strong human rights-oriented Court? Some highlights:
- “When one considers the sum total of the specific circumstances of this case, it was our view that there could not be a fair trial in this case if the defence, through lack of means, were deprived of access to the services of a forensic odontologist and this Court could not sanction Gibson’s trial under those conditions” (para 40).
- “While it is true that a certain comity must exist between the various branches of the State, we do not subscribe to the notion that the separation of powers principle can preclude the court from making an order against the Executive in exercise of the Court’s power to redress of prevent breaches of constitutionally protected rights merely because the order requires the Executive to expend public funds” (para 42)
- “Section 24 is deliberately couched in broad terms because … the court has, and must be ready to exercise, power to grant effective relief for a contravention of a protected constitutional right. If the appropriate way to remedy a breach is to make a mandatory order for the payment of money by the State, then that is what the court is empowered and obligated to do.” (para 42)
The Court then considers the issue of a trial within reasonable time:
- “To be fair, inordinate delays are not unique to the State of Barbados. They are prevalent in other Caribbean States as well. But this provides no justification for countenancing delay. Some States have actually made assiduous efforts to address the problem” (para 51).
- “It is not of course for this Court to prescribe for Barbados the specific measures that it must take adequately to overcome the problem of delays in its criminal justice system. But we feel in duty bound to draw to the attention of the relevant authorities the urgent need to address it in a thorough and comprehensive manner if it is not already being so address. As the apex court responsible for interpreting and applying the rights set out in the Barbados Constitution, this Court cannot remain oblivious of well founded concerns that breaches of the right to trial within a reasonable time are systemic in nature. If on the other hand it is apparent that prompt measures are being taken to address this problem in a decisive manner then a court is likely to take cognizance of such measures when it has to ass the reasonableness of lapses of time or the remedies that should be applied (para 52).
The Court applies principles of proportionality to determine whether the delay of 29 months was reasonable (para 60). “One starts with the premise that the Executive Branch of Government has a constitutional responsibility to allocate sufficient resources to ensure that the reasonable time guarantee has real and not just symbolic meaning. A governmental failure to allocate adequate resources, or for that matter inefficiencies within the justice sector, could not excuse clear breaches of the guarantee” (para 60).