Brian M. Moree QC – Chief Justice.
I welcome this opportunity to share with you this afternoon some of my thoughts on the way forward in the Judiciary and in our Court System. I start with a loud and single mantra – it is time to modernize our Court System by reform; major, bold reform – reform which will overhaul the machinery of justice in the Bahamas. I am not referring to tweaking the edges or implementing cautious, minor stand-alone changes in uncontroversial areas of the system. The status quo is not an option. I say this not because of the failures of the past but because of the challenges of the future.
The simple, incontrovertible fact is that the present governance, administrative and operational models of the Courts are outdated in many areas and must be upgraded in order to fulfil its vital constitutional role in our form of democratic government. It was a former Lord Chief Justice of England and Wales who said that “….justice is central to the ongoing prosperity and fairness of our democratic society. For this reason, it is imperative to ensure that the judiciary is actively involved in leading and shaping our justice system, in concert with the other branches of the State.”
A wise person once said – “You can never discover new oceans unless you have the courage to lose sight of the shore.” This is an appropriate metaphor for us and we must now be prepared to set sail away from the comfort of the shore and proceed into new waters.
As we all know, the Judiciary is a co-equal branch of Government – it is not a government department or a Ministry – and its independence and overall efficient operation is critical to our free and open society. It is indisputably in the national interest for there to be an effective and readily accessible Court system within our country. This is our mission and motivating purpose as we now seek to introduce major reforms into our Court system. To paraphrase the words of Lord Neuberger when addressing the administration of justice in England, the reforms in the Bahamas“….will seek to facilitate the continued rule of law and, with it, the continued strength of our civil society.”
Again, it was Lord Neuberger who reminded us that “fair and equal access to the courts is not a privilege but a fundamental right….[L]ike the rule of law, [this] is not just a slogan: it is a fundamental requirement of a modern civilized society.”
And so we must continue to make this a practical reality as we move to modernize our Court System in the Bahamas. Much has been achieved in the past but the mantle of leadership now rests on our shoulders to build on the past and provide the institutional infrastructure and organizational platform for the Judiciary as we move into the next decade. In doing so, our reforms must be thoughtful, purposeful, well researched and targeted in order to achieve the overreaching objective of a 21st century efficient, fair and accessible Court System presided over by a competent, independent and impartial Judiciary which is properly reflective of the high standards and aspirations of our country and its people.
My first point of reference for reform is to move away from the heavy and antiquated reliance on the use and movement of large volumes of paper to drive the Court System. This, together with the imperative to put in place an adequate technology platform throughout the Court System, is fundamental to any significant upgrade of the current system. Simply expressed, progress is inextricably connected to the smart introduction of technology across the entire Court System. This involves a state of the art software platform, procurement of hardware, effective installation, continuing maintenance and training of all users. Ongoing support of IT technical assistance fully dedicated to the judicial branch of Government will be required. The objective must be to fully integrate the use of technology in the delivery of our core services to the public.
This will involve the introduction of E Filing throughout all the Registries of the Court. No longer will you have to walk through the physical filing of documents at a public Registry; manually pay the fee; wait for the documents to be physically stamped with a rubber stamp; and thereafter hope that the documents will be written up by hand in the Cause List Book and get to the case file located somewhere in the Registry or elsewhere in one of the numerous buildings occupied by Judges and Registrars. Also, E Filing will address the serious problem of the ageing and tattered condition of the Cause List Books and all the attendant problems associated with that process. Once introduced, E Filing will allow you to file court documents in your office at your computer, pay the filing fee and get your receipt on line. The documents will be digitally managed and tracked from that point and the Judge, Registrar or Magistrate will have access to the digital file. Manual intervention and the use of paper will be minimal.
The software platform will also provide a comprehensive case management module which will greatly enhance the active and effective oversight and monitoring of all cases. The integrated software package will also offer numerous other modules, including E calendaring, which will all be rolled out at the appropriate time.
We are looking at several options for the software including one currently in use in a regional court and another one being used in Singapore as part of the research and planning stage of this project.
The condition, staffing, procedures and operations of the Registries are high priority issues and we will be moving to address these matters. Both short term and medium term solutions will be implemented. We must improve access to files, particularly older ones which are archived.
We will be reviewing the current procedures for the listing of all cases to make the process more efficient and responsive to the needs of the public. The congested state of the court calendar and the waiting time for dates are perennial problems and the solution requires an holistic approach involving multiple strategies. We hope to deliver in the short term some relief on this front but this will require the active participation and cooperation of the Bar. You will be hearing more about this as we move forward.
The Court Reporters Unit is under review. This department has an enormous impact on the overall productivity of the system and the timeline for the disposition of cases. Again, we will be making changes in the short term to improve the existing arrangements. The Court reporters are hardworking members of our team and we must give them additional resources.
We intend to provide judicial research counsel for all of the Judges. These persons will be lawyers who will assist judges in much the same way as clerks do in the US court system – providing legal research and support in preparing judgments and rulings which will increase productivity. This will result in the more timely delivery of judgments thereby accelerating the disposition of matters before the Court.
We want to make working in the Judiciary and the Court System a first choice for bright and committed lawyers and not a last resort. The objective is to develop a practice where ‘clerking’ for a Judge enhances the career and currency in the legal market of lawyers thereby making public service a desirable option, at least for several years.
We must also seriously consider a structured and rule based regime of mediation and other ADR mechanisms as a way of managing the enormous volume of cases filed in the Courts. It is simply impossible for courts in any country to determine by trial all the cases which are commenced. On the criminal side there needs to be a continuing use of plea bargaining in a judicious and practical manner to deal with certain types of cases and on the civil, commercial and family side, we have to create an alternative effective pathway through ADR procedures to assist in the disposition of cases.
Some years ago, one of my predecessors embarked on an important process of updating our Supreme Court Rules. I intend to complete this exercise in order to provide a modern legislative platform for the conduct of cases in the Supreme Court. We will replace the existing Supreme Court Rules with an adapted and updated version of the CPR model used around the Commonwealth. Our target date is to promulgate the new Rules later this year by 1 December, and make them effective after a period of training involving the Judges, the Registrar’s, the Court staff and the Bar.
A modern Court system must recognize the special needs of cases involving family matters. In 2019, it is no longer one size fits all when it comes to courts. Family cases involve different factors and invariably relate to deeply personal and emotional matters; this is all the more so when children are a part of the case. To pretend that this genre of case can seamlessly fit into the generic court system is regressive. Accordingly, we intend to urgently look into establishing a new Family Court based on the ‘user friendly’ model widely adopted in other jurisdictions. This Court must be physically, procedurally, operationally and judicially nurturing and conducive to the timely resolution of family issues.
The Bahamas is a major International Financial Centre and a preferred jurisdiction for international commerce. There is a direct correlation between the volume of business in a jurisdiction, both domestic and international, and the capacity of that jurisdiction to resolve commercial disputes in a competent, timely, independent, impartial and efficient manner. This is particularly important in the regional and global context. It is time to once again consider the establishment of a specialized Commercial Court to deal with these matters which is equipped with modern technological tools and presided over by judges assisted by support staff who are experienced in dealing with these cases. Rules would have to be introduced to govern this court and its procedures.
As I have already stated, the Judiciary is an independent branch of Government. The importance of this principle cannot be over stated and is essential to the Rule of Law and to our democracy. In order to advance this fundamental and vital constitutional requirement, we must now look at granting to the Judiciary greater financial and operational autonomy over its affairs. In this regard, it is my view that the current financial and budgetary arrangements relating to the Judiciary should be reformed to better reflect the reality of the independence of that institution. Accordingly, we will be seeking to work with the other branches of the State on The Court Services Bill (updated as determined appropriate) which has been in circulation for many years. This is a potential game changer for the Judiciary and is an essential step in the reform and modernization of our Court System. It would be in line with many other jurisdictions which have for some time recognized this requirement in the overall administration of justice.
The physical state of most of the buildings currently being used by the Judiciary is unsatisfactory and must be addressed. The condition of these premises adversely impacts the business of the Courts and its productivity. Judges are presently sitting in several different buildings with staff and support services spread around those buildings. The civil Registry of the Supreme Court is in a completely different building many blocks away. The Court Reporters are in yet another building. The condition of the Magistrate’s Court complex is inadequate causing Magistrates and staff to work under difficult circumstances. It is apparent to all that the only viable overall solution to this problem is a modern, customized, well planned and designed Court complex providing a suitable state of the art home for the Courts. This would have an enormous positive impact on the administration of justice in the Bahamas and together with the smart implementation of a modern technology platform throughout the Court System would be transformative. There are ongoing substantive discussions on this subject in connection with new and innovative ideas on the ways and means of achieving this objective and you will be hearing more about this over the next few months.
I have been briefed on the new automated Bail Management System and understand that this is expected to be rolled out at or around the first part of the fourth quarter of this year.
We also intend to renew our efforts to establish a Judicial Education Institute in order to provide high quality sustained training for Judges, Registrars, Magistrates and staff within the Judiciary. This will highlight our increased focus on a structured and carefully planned curriculum for training throughout the entire Judiciary.
We are working on a new and modern web page for the Supreme Court which will be our primary portal for the dissemination of information relating to the business of the Courts. Once fully developed the web page will include Judgments, Rulings, Practice Directions, scheduling information and other pertinent information for lawyers and members of the public.
I also intend to fully activate the Bench Bar Committee as a means of maintaining an ongoing dialogue with the members of the Bar on matters of mutual interest to the Bench and the Bar.
I intend to consult with the Bar on these matters and to involve all the stakeholders. Our approach will be collaborative and driven by the urgency and importance of the matters which we are dealing with. The timeline for all reforms will be as soon as is consistent with the orderly and efficient implementation of the relevant matters under review. However, as I said at the reception after my swearing in ceremony, it will not be business as usual – we are in a new era – one which is time sensitive; results orientated and reform minded. Change will be the order of the day – focused on modernization – efficient delivery of our services- adopting best practices applied to courts around the world.
It has been said that “A comfort zone is a beautiful place, but nothing ever grows there.’ We need growth and are about to leave our comfort zone and embark on a laudable and noble journey. I invite all of you to join us in a spirit of collegiality and cooperation. We will not succeed without the active and energetic support of the Bar. We all have a common interest in the mission and together I am confident that we can accomplish something which is important and enduring. Is it possible – I think that it is. I remind you of the response given by a wise person when confronted with the same question – “Impossible is just an opinion.”
I must caution that in this process, we do not control all of the resources which will be required to implement our reform program and we will have to work with other branches of the State. Accordingly, we must manage our expectations but at the same time remain committed to meaningful change.
Along the way I am sure that I will have my detractors. I understand that. We will always seek to work in an environment of respect and consideration for all persons but the reality is that we will not receive full approbation from all quarters. I take comfort in the wisdom of Winston Churchill when he said that:
“There is only one way to avoid criticism:
And be nothing.”
We will move on with what we must do. As we do so, I am reminded of these famous words of a former President of the United States when he said:
“It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of
deeds could have done them better. The credit belongs to the man who is actually in the arena…..who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms…..who spends himself in a worthy cause; who at … best knows in the end the triumph of high achievement, and who at…worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat.”
We are now in the arena and will move boldly in an attempt to achieve big things in modernizing our Court System. We will seek to change the trajectory of reform in the Judiciary through incremental progress in different areas. I know that success is my no means guaranteed but we will not be deterred by the fear of failure. We are going to give it our very best effort. In doing so, I trust that I will be able to count on the active support of the Bar.