Access to Justice Report Mr. Albert Fidajoe (Barbados) - www.albertfiadjoe.com

1.0       INTRODUCTION & BACKGROUND

1.1       By the Terms of Service Contract RLA/03/MOG – Access To Justice Research – Belize, commissioned by the UNDP Belize, it is required that a final report be elaborated as part of a three-stage process.

The two precursors to this Report have been

 

(a)        a summary description of the political – institutional context, submitted to UNDP on March 1, 2004, and

(b)        a listing of materials and data acquired from the observation of access to justice services and from the interviews conducted with providers and users, submitted to UNDP on March 31, 2004.

1.2       The present Report expresses the viewpoints of the Operators (Duty-Bearers) the Users (Claim-Holders), Conclusions arrived at and Recommendations made.  It also synthesizes the work carried out, analyses critically existing institutions and their practices, and recognizes best practices and offers suggestions for the improvement of the system of accesses to justice.

            For ease of reference, this Report follows the listing of formal and informal institutions discussed in Report I of March 2004.

1.3       The backdrop for evaluating ATJ in Belize has to be the Constitution of Belize.  Issues relating to ATJ have become a focal point for contention and polemics in Constitutional Human Rights Law.  Whereas the Constitution of Belize confers fundamental freedoms on its citizens, yet it does not speak directly to mechanisms to ensure that those rights are properly accessed or exercised.  Precisely because of the absence of available constitutional structures, other secondary mechanisms, designed to provide access to justice such as legal aid, take on added importance.

1.4       ATJ is essential to the maintenance of a civilized and humane society.  At its peak, a civilized and humane society should safeguard the rights of individuals, regulate their dealings with one another, enforce the duties of government and, most of all, make justice accessible to the ordinary citizen.

            As was pointed out in one case by one of the leading exponents of Public Law:

“Every civilized system of government requires that the State should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective rights.”

 

1.5       That involves a complex mix of knowledge of the legal system, an awareness of one’s rights, the right of access and the ability to approach appropriate institutions for redress.

            An ATJ programme designed to update legal systems must necessarily include measures to offer all segments of society adequate access to justice.  This should include, among other activities, the promotion of legal aid systems for low-income sectors of the population; methods to bring government legal services into less developed communities; legal education programs for the people; and effective ways of ensuring the protection of basic collective rights.

1.6       This is an acknowledgement of the fact that there can be no more important a subject than ensuring that the ordinary citizen is able to obtain access to justice because constitutions and the rights which they confer are not worth much if those rights cannot be enforced.

1.7       The current environment for ATJ in Belize has been evaluated against these principles, among others.

2.0       A. THE CONSTITUTION

2.1       Belize is counted among States with democratic structures, principally because of the type of Constitution which it inherited at independence.  The Constitution delineates the organs of state, apportions essential duties to officers of state and allows free and fair elections at periodic intervals.  To these may be added the fundamental freedoms, the constitutional protection of the public service, the Judiciary and an elastic system of legal remedies.

2.2       The Belize Constitution has been the subject of much national debate, (especially in the  1990s).  While the Constitution was generally seen as serving Belize well, popular sentiment was highly critical of the system of governance.  Indeed, one of the most serious shortcomings of the Belizean Constitution is that there is too much focus on government and virtually nothing on governance.

            Also, the lack of public awareness about the Constitution and the political system is a serious drawback on ATJ in Belize.

2.3       The Political Reform Commission (PRC) Report of 2000 indicates that over 10,000 copies of the Belize Constitution and 2,000 copies of the booklet “How We Are Governed” were distributed nation-wide free during the work of that Commission.

            Laudable as that initiative was, it appears that there has been no similar sustained effort at public awareness education, especially in the area of governance since then.

2.4       The summary of their concerns about the System of Governance made by the PRC makes compelling reading:

•           Official corruption and lack of accountability of elected and public officials;
•           Doubts about the independence and effectiveness of the Courts of justice;
•           Excessive partisan control and division;
•           Lack of people’s participation in the system;
•           Lack of women in positions of political leadership;
•           The system doe s not  work effectively for the poor;
•           Excessive centralization of powers in the Prime Minister and the Cabinet;
•           Ineffective separation of powers between the Executive and Legislature and the Judiciary;
•           The House and Senate are only rubberstamps;
•           Having a Foreign Monarch as Belize’s Head of State;
•           Lack of regulation of political parties and campaign financing;
•           A political culture characterized by fear, victimization, passivity, and dependence;
•           Lack of education about our Constitution and system of governance.

2.5       Whereas a number of these concerns have been and are being addressed, it is fair to say that the lack of effective and sustained public awareness campaign on the fundamental rights provisions remains an overriding obstacle to the enjoyment of the people’s access to justice. 

 

3.0       THE JUDICIARY

 

3.1       The Judiciary is a critical institution in any review of ATJ in Belize.  There can be no strong democracy without a strong judiciary.  A modern Belize demands a modern and effective judiciary. Faced with an ever increasing work load and afflicted with an archaic operating system, the judiciary has received a long list of criticisms concerning its existing system of dispute resolution.

3.2       For example, the system of civil justice presently in use is one which was devised at the time when civil cases were virtually all heard with juries, and the procedure which was built up in that background is really wholly inappropriate for contemporary circumstances.  What is needed is to take a fundamental look at the situation, find out really what the civil justice system should be doing, change the present culture to one which deals with disputes in a manner which gives the public access to the courts when they need access to the courts, directs them elsewhere  when there is a better alternative and finds simple ways of dealing with simple cases, while preserving the complexity and strengths of the adversarial system for those cases which need it.

3.3       Among the criticisms of the present system are:

            •           Heavy backlog of cases;
            •           Adversarial nature of the trial;
            •           Delay
            •           Expense
            •           Court overcrowding
            •           Rising demands on scarce public resources;
            •           Escalating legal and emotional costs;
            •           An increasingly long and arduous litigation process;
            •           Inefficiency and popular frustration with the litigation alternative.

            The cumulative effect of all these observations is to restrict access to justice because the legal system offers protection for the few and very little for the many.

            These  criticisms and more can be regarded as serious drawbacks to ATJ in Belize.

3.4       ATJ in Belize should seek to achieve the following aims in the judicial and legal system.

            The Legal System should:

            •           be fair and be seen to be so;
•           be proportionate, with respect to procedures and cost,  to the nature of the issues involved;
•           deal with cases with reasonable speed;
•           be understandable to those who use it;
•           be responsive to the needs of those who use it;
•           provide as much certainty as the nature of particular cases allows; and
•           be effective, adequately resourced and organized so as to give effect to the previous principles.

3.5       Currently in Belize there is an ongoing debate as to whether a partial solution to the problem may not lie in adequately staffing the courts.  But one solution about which there is no controversy is the introduction of case load management in the courts and the application of Primary Dispute Settlement (PDR) processes in the Family Court.

3.6       The Rules Committee of the Supreme Court, under the Chairmanship of the Chief Justice, is currently piloting the introduction of Case Load Management in the Supreme Court.  The draft text of the Civil Procedure Rules has been published.

            The need to reform and change the culture and practices of civil litigation has been widely recognized in the Caribbean region and further afield in the wider Commonwealth.

            The OECS Courts, Jamaica and Trinidad and Tobago currently practice these new Rules.  Barbados is on the verge of introducing new Rules within a year or two.

3.7       The principal aims of these Reforms are to achieve the following objectives:

            •           reaching a decision by an apparently fair process or by free agreement;
            •           arriving at a decision quickly;
            •           reaching that decision by a transparent and understandable system;
            •           arriving at that decision by a process which is predictable as to

                        •           outcome
                        •           timescale, and
            •           cost

•           arriving at a decision in which the views of the parties are given fair consideration;
            •           undertaking litigation which is conducted at low costs; and
            •           one that can be readily enforced.

3.8       In the views of Chief Justice Abdulai Conteh,

“the process of litigation in Belize, even for small claims, the so-called Summary Actions, appears to the litigants as some complex and Byzantine exercise invariably attended by exasperating delays, with an unpredictable outcome or one that cannot be readily enforced and [is] often expensive”.

3.9       Pending the formal adoption of a full-blown Case Load Management system, Practice Directions or amendments to the current Rules of the Supreme Court have been issued, as an interim measure, covering areas such as Summons for Directions, Pre-Trial Conferences, and uncontested Divorce Petitions.

4.0       In place of Summons for Directions, it is proposed to institute a system of automatic pleadings, so that 14 days after entry of appearance to a Writ of Summons, the Plaintiff must file his Statement of Claims and serve it on the Defendant, who shall then have 14 days thereafter to file and serve his Defence and Counterclaim, if any.  There will also be 14 days allowed the plaintiff for his Reply.  In a case where there has been no entry of appearance after service of the writ, the period would extend to 21 days for the Plaintiff to file his Statement of Claim.

4.1       The pleadings will then be deemed closed.  Thereafter, there will be a pre-trial conference with a judge which will involve case management and, if necessary, directions for discovery and the production of documents and other ancillary matters.  But importantly, at the pre-trial conference, if the case is to proceed to a hearing, a definite date for this will be arrived at with a fixed timetable.  The parties and their attorneys shall be expected to adhere to this timetable.

4.2       In the case of uncontested Divorce Petitions, there shall be no need for a formal hearing by oral testimony.  The petitioner may prove her petition by affidavit evidence.  If the Petition is contested, then the same provisions will apply as in the case of ordinary writ actions.

4.3       These of course, would be temporary measures intended to speed along the process of the initiation, progress and resolution of cases before any new rules come into force.

4.4       There are also current plans to introduce a Primary Dispute Resolution system for the Family Court of Belize.

            With funding from UNICEF, the proposal is to establish a system which encourages non-adversarial resolutions of family, juvenile and child issues which serve the welfare of the parties.  The Belize Family Court Act of 1989 already provides an environment where family and juvenile matters are handled in a holistic manner in order to provide alternative methods for reconciliation, protection, rehabilitation, growth and development in conjunction with other relevant organizations.  Among the key expected outputs of the Project are the development of a Training Manual for staff in using PDR and other counselling methodologies and the conduct of a Training Workshop for Family Court and Allied Staff on the use of PDR methodologies.

4.5       In 2003, the Family Court dealt with a total of two hundred and ninety nine (299) cases for maintenance; and a total of three hundred and fifty (350) cases for Domestic violence. It also dealt with a total of seven hundred and seventy six (776) other cases such as adoption, paternity determination and separation orders.

4.6       Domestic violence is one of the problems on the increase in Belize over the past several years.  In order to have a better and clearer understanding of the Domestic Violence Act, a one-day workshop was sponsored and conducted by the Family Court for victims of domestic violence.  The Domestic Violence Unit of the Belize Police Department, the Human Development Department and staff of the Family Court participated in the programme.

4.7       The increasing number of cases of abused children and domestic violence generally has created the need for an emergency response unit to rescue young victims under the authority of a Child Development Agency.

            The call here is for the promulgation of a Child Care and Protection Act which will mandate reports of situations of concern to the relevant authorities and severe penalties for persons who exploit or endanger children.

4.8       Of course, Belize is among those countries which have legislated against the sale and trafficking of children under the International Child Abduction Act, 2000 (Chap. 177).  This is to be welcomed as a far-seeing Act, consistent with the Convention on the Civil Aspects of International Child Abduction, which was signed at The Hague on October 25, 1986.

5.0       THE MAGISTRACY

5.1       There is no gainsaying the fact that the Magistrates’ Courts bear the brunt of the inter-action of the public with the justice system.  In the year 2003, in the Magistrates’ Court, the total number of criminal cases that came before them was eighteen thousand nine hundred and seventy one (18,971) and they were able to dispose of fourteen thousand six hundred and twenty five (14,625).  A total number of four thousand and seventy six (4,076) civil cases were lodged for the same period and three thousand two hundred and seventy eight (3,278) were disposed of.

5.2       The Belize Magistrates’ Courts operate from very cramped and physically challenged premises.  That of Belize City is located in temporary accommodation in the Sikaffy Building in Bishop Street.  These Magistrates must be performing their daily tasks of adjudicating in disputes in some very trying circumstances.  That cannot bode well for the public’s right of access to justice.

5.3       Furthermore, any system of justice that cannot dispose of cases fairly and expeditiously suffers from serious systematic problems.  There is an urgent need to reform the systems that are currently in use at the Magistrates’ Courts.  Some issues to consider are:

            •           how to promote a reduction in adjournments
            •           how to attain speedier hearings
•           an increase in the number of offences for which pleas of guilty may be lodged by post
•           abolishing preliminary inquiries
•           review of the law of criminal evidence to make it an efficient and simple agent for securing justice
•           shifting from technical rules of admissibility to trusting judicial and lay finders to give relevant evidence the weight it deserves
5.4       In short, the need for the introduction of case management in the magistracy is even more compelling than in the higher judiciary.

6.0       BEST PRACTICES WITHIN THE JUDICIAL SYSTEM

6.1       Notwithstanding the well-documented criticisms of the Judiciary by the public, there are some best practices which ought to be documented.  These relate to:
           

These initiatives will be commented on seriatim.
           
6.2       (a)        Judicial Training and Further Legal Education

6.3       Belize is in the forefront of countries providing judicial training and further legal education for judicial and legal officers.  An excellent example was the training for Magistrates conducted from June 14-16, 2001 in collaboration with the Attorney General’s Ministry.  Among the topics covered were:

(a)        Managing the Court
            (b)        The Constitution and the Magistracy
            (c)        Procedure in the Magistrate’s Court
            (d)       Proof of Guilt
            (e)        Judgments and Reasons
            (f)        Approaches to Sentencing, and
            (g)        Areas of Reform in the Magistrates’ Court

6.4       Granted that the Magistracy deals with roughly 23,000 cases (both criminal and civil) per year, training and further legal education for the Magistracy is a most important initiative in support of ATJ.

6.5       It is recommended that, funds permitting, judicial training and further legal education should become a permanent feature of judicial education and training, and not just for magistrates, but the rest of the judiciary as well.

            It is also noted that from time to time, targetted training has been made available to members of staff from the judicial service.  This is to be welcome.

6.6       (b)       Annual Bench and Bar Summit

            Since 2000, Belize has marked an Annual Bench and Bar Summit with the closure of the Courts for a day to focus on a theme of direct relevance to the legal system of Belize.  So, far, the following themes have  been addressed:

            2000    Law and The New Millenium
            2001    Fast and Fair Trials – How Do We Get There?
            2002    The Family and the Law
            2003    The Litigation Revolution

6.7       This is an excellent initiative and a powerful example of best practices. The process of development is constantly transforming the society, economy and institutions of Belize.  These transformations carry with them new demands on the law and the judiciary.  These demands manifest themselves, for example, in the need for crime prevention, the protection of family values, recognition of the needs of disadvantaged groups, youth, minors, women etc. The recognition of these challenges underscores the need for a trained bench and bar that can respond to them in a forthright and effective manner.

6.8       (c)        A Judiciary Bill

            The Attorney General’s Ministry has agreed to a broad thrust of proposals designed to secure budgetary and financial independence for the judiciary to buttress the security of tenure already provided for in the Constitution.

            Thus would be a first in Caricom.

6.9       As reported in the Chief Justice’s Report on the Judiciary 2002 at page 9:

The broad thrust of the proposals was to secure budgetary and financial independence for the judiciary, in addition to the security of tenure already provided for in the Constitution of Belize.

Budgetary independence for the judiciary is, without question, a pillar of judicial independence and impartiality so vital for the rule of law.  To my mind, it seems like giving hostage to fortune, if the judiciary has to run to the executive every time it needs to spend money on urgent and necessary matters.  The need to secure budgetary independence is decidedly one of the clear provisions of the Latimer House Guidelines of the Commonwealth on the Independence of the Judiciary.  The court room is the arena of last resort where the citizen and the executive, that is, the government, meet as adversaries over competing claims and demands.  Therefore, it is important that the reality of the independence and impartiality of the judiciary is not flawed by any perception that it is beholden to one side or the other.  Budgetary and administrative independence of the judiciary is therefore vital in this regard.

 

7.0       (d)       Code of Judicial Ethics and Etiquette

7.1       On April 3, 2003 in Belize, a voluntary Code of Judicial Ethics and Etiquette for the Bench was  promulgated.  It is yet one good example of best practice.

When implemented, this Code will be the clearest signal from the Bench that it wishes to be responsive and accountable to the populace for the administration of justice.
7.2       This Code, to which every judicial officer in Belize, including Magistrates and Registrars subscribes, stipulates certain principles that are expected to bolster and enhance judiciary integrity in the fullest sense of the expression.  Integrity is the currency of judicial office.  It should never, ever be devalued or compromised.  The values which the Code seeks to underline as essential to the judicial office are: propriety, independence, integrity, impartiality, equality, competence, diligence and accountability.  Accountability, for example, speaks to the timely delivery of judgments.

7.3       These values in the round, no doubt, make for an independent, fearless, impartial and competent judiciary, which at the end of the day, is the protector of the rights and freedoms of every citizen.

7.4       (e)        International Co-operation

 

7.5       Since 2002, the Supreme Court of Belize has struck an informal relationship with the Supreme Court of Guatemala with reciprocal visits to each others’ jurisdiction.

7.6       In December of 2003, the Judiciary signed a cooperative agreement with the Justice Studies Center of the Americas which is based in Chile, South America.  The objective of this Agreement is to establish a framework of cooperation between the Judiciary of Belize in order to develop and carry out programmes of mutual interest.

8.0       BUDGETARY ALLOCATION TO THE JUDICIARY

 

8.1       In order to support measures which promote access to justice for the people of Belize, it is imperative that the Government makes strategic budgetary allocations which will address some of the systematic weaknesses in the ATJ portfolio.

The administration of justice is clearly one of the social responsibilities which has suffered benign neglect by the public, economic and political authorities.  It is a very difficult task to provide justice to the public principally because the justice system is competing with other equally essential services (eg health and education) for the resources available.

8.2       Nevertheless, the last two budgetary allocation to the judiciary speaks to the level of the priority which the law receives from Government.  Adequate and proper administration of justice is a necessary component of good governance and indeed, a principal attribute of sovereignty and statehood.  It is therefore a necessary and legitimate item of public expenditure.  For the year that has just ended the modest sum of BZ $2,569, 418.00 (0.73% of total national Budget) was allocated in Fiscal Year 2002/2003 to the Judiciary.

8.3       Estimates of Revenue and Expenditure for the Fiscal Year 2003/2004 to the House of Representatives show that the Judiciary has fared only marginally better than last year.  This time around, the allocation has modestly increased to BZ $2,956,031.00 or 0.79% of the national budget of $371,991,231.00.

8.4       Modernizing the judiciary and adequately supplying the essential needs of the       judiciary remain an important component in the general scheme of ATJ.

9.0       SUPPORT SERVICES

 

9.1       An efficient judicial system must be based on efficient support systems.  So, judges’ assistants and court staff need to be specifically trained in the field of caseload management, web-based electronic legal research and court reporting.

9.2       Belize possesses one of the most attractive and readily accessible websites for its laws and legal system online at www.Belizelaw.org.  The laws of Belize, judgments of its Courts and other useful information on the administration of justice are readily available on this site.

9.3       The establishment of a web site for the judiciary is an undoubted asset to the wide dissemination of cases and decisions which otherwise would be bound up in court dockets and law reports which are not accessible to the general public.

10.0     ATTORNEY GENERAL’S CHAMBERS

 

10.1     In Report 1, the enormous responsibilities of the Attorney General’s office were laid out.  The office of the Attorney General is the fulcrum in the interface between the Judiciary and the Executive and the Legislature.  Indeed, by the Constitution of Belize, the Attorney General is charged with responsibility for the administration of legal affairs in the country.

10.2     The spate of legislation required to be turned out by that office is enormous.  The creation of the office of Parliamentary Counsel has been a most farsighted piece of initiative.

One possible solution in relieving the Attorney General’s Ministry of unnecessary work load is to encourage other ministries to employ their own in-house legal counsel.

11.0     OFFICE OF THE DPP

 

11.1     As pointed out in Report 1, since September 2003, Belize has phased out the prosecutions by the police personnel before the Magistrates Courts.

This is a first for the region.

11.2     The DPP’s Office now has to responsibility for the recruitment and training of its Civilian Prosecutors with academic qualifications at a level far higher than before.  This should auger well for a more efficient and speedy disposition of cases before the Magistrates’ Courts.  Since over 90% of cases tried in Belize go before the Magistrates’ Courts, this should have an enormous impact on ATJ in Belize.

11.3     It is important that the civilian prosecutors should be supervised by a Crown Counsel within the office of the DPP.  Equally importantly, the office of the DPP should offer extension of services to the Police in the areas of crime scene investigation, preservation and collection of crime scene evidence, docket preparation and such like matters.

11.4     There appears to be a shortage of manpower at the office of the DPP.

Currently, there is no post of Deputy/Assistant Director of Public Prosecutions on the books.  It is recommended that one should be created.  Means should be found to encourage local Belizeans to work in the office of the DPP. This would have the positive effect of bringing about a sense of belonging.

11.5     The office of the DPP is currently staffed with 3 Crown Counsel in addition to the DPP.  This is woefully inadequate to cope with the spate of crimes in Belize and the level of prosecutions required.

11.6     It is recommended that Government consider the recruitment of 3 additional Crown Counsel to that office to help alleviate the long delay involved in the prosecution of criminal cases.

12.0     THE REGISTRY OF THE COURTS

 

12.1     The most serious challenge posed to the Court Registry is the introduction of Case Management under the new Civil Procedure Rules.  These rules provide for a modern and efficient system of trials in the Supreme Court but for them to work, there needs to be a new culture, a new thinking and a new ethos.  Familiarity with the rules is a necessary precondition for the introduction of the new Rules.

12.2     There is also the need for training the Registry staff to re-orientate from the old ways to the new paradigm shift mandated by the rules.

12.3     Furthermore, without the effective support of new innovations in technology, the introduction of the new Rules will not yield the desired results.

13.       THE POLICE

13.1     In Report 1, two areas of police practice were identified as being of critical importance of ATJ in Belize.

These were:

Improvement on training in pre-arrest, arrest, and crime scene investigation procedures, and docket preparation; and

Improvement in the overall quality of police service to the community with a view to securing more positive support and cooperation from the public in the fight against crime.

13.2     The point has already been made (paras 11.2 & 11.3) concerning the offer of training to the police by the office of the DPP in the specific areas identified above.

13.3     Community policing is now gaining ground as a key method of regaining public confidence in the police.

Best practices as to community policing have now been recently introduced in Jamaica.  Lessons learnt in Jamaica can be replicated or adapted to suit the circumstances of Belize.

14.0     THE PRISON

14.1     There is no question but that conditions in Hattieville Prison have improved considerably since the Kolbe Foundation Ltd took over the management of the prison in 2002.  Among such improvements have been structural, administrative and personnel changes designed to ensure that the prison remains “a secure humane facility”.

14.2     These improvements notwithstanding, an Amnesty International Report (AI Index: AMR 16/001/2002) had this unflattering report on the Hattieville Prison:

Conditions in Hattieville Rehabilitation Centre, the main penal institution in Belize, remained poor.  Severe overcrowding exacerbated already insufficient sanitary and drainage facilities, posing serious health risks.  Many cells lacked sufficient light and ventilation, and some leaked when it rained.  In both the women’s and men’s facilities, juveniles were sometimes held with adult offenders, as were detainees on remand with convicted prisoners.  In August the government passed legislation granting control of the prison management to a private company, which subsequently initiated a number of positive reforms to improve conditions and rehabilitation.  However, government mechanisms to ensure the company’s compliance with international and domestic standards had yet to be fully established.

           
14.3     Amnesty International further noted that prison conditions did not meet international standards and that there were reports of torture and ill-treatment of detainees.

14.4     In the Report of the Kolbe Foundation Ltd, some acknowledgment of the shortcomings of the Prison is made in the following terms, under the headings, “The Road Ahead” in the following words:
While the Kolbe Foundation has already made a tremendous impact in the day to day operations of the Belize Central Prison by, improving the quality of life for the inmates, and the overall security of the institution, there is still so much more work that needs to be done.  The prison suffers immeasurably from a lack  of funding coupled with a lack of key personnel.  The official funding to the prison is just $6 US a day per prisoner which covers the cost of the most basic needs.  Additionally, Kolbe desperately needs more training for the guards who are largely untrained.  Furthermore, Kolbe’s focus is still rehabilitation and thus it is this area in which we wish to effect the most immediate change.  We currently have only two counselors for the over one thousand inmates in the facility.  We also have a need for the implementation of many more rehabilitative programs.  The road ahead may be long and fraught with many challenges but we feel that we have an unparalleled opportunity to make a difference in the lives of many.

15.0     SEMI-FORMAL INSTITUTIONS

15.1     OMBUDSMAN

 

15.2     Currently, popular perception of the office of the Ombudsman is that it s not highly visible.  It operates solely out of Belize City and, as its 2002-3 Report shows most of the cases dealt with emanated from Belize City.

And yet this one institution has the potential to have a truly national coverage and thereby to have a significant impact on ATJ in Belize.

15.3     To that end, the following recommendations are proferred:

15.4                 There is the need to address the question of inordinate delay in the settlement of disputes between the individual and the State.  It is a problem which is common to all the offices of the Ombudsman.  The Ombudsman should be given a fast track authority to encourage settlements of disputes between the individual and the State.  Once the Ombudsman invokes a fast track authority, then parties should be obligated to fall into compliance in accordance with the terms set out by the Ombudsman.

15.5                 Next the Ombudsman should be invested with the power to refer cases for mediation or other alternative dispute resolution process.

15.6                 Next is a suggestion to see the enhancement of the jurisdiction of the Ombudsman in two ways, bearing in mind the absence of other supportive processes for the enforcement of legal rights and obligations.  One would seek to clarify the grey areas of his authority.  The other would address suggestions made by Lord Woolfe.

            In the mould of Lord Woolfe’s recommendations, the Ombudsman should be granted enhanced jurisdiction whereby cases may be referred to his office by the courts, as they see fit.  This would help to ease the caseload of the courts.  But more importantly, references may be made  for cases, which are more suited to the inquisitorial style of the Ombudsman rather than the investigative style of the trial process.

15.7                 And when the job of the Ombudsman is done, the law should put some weight behind the conclusions reached.  As of now, there is no obligation on Parliament even to debate the Reports of the Ombudsman.  The constitutional requirement is that the Reports should be tabled and no more.  This is a self-defeating and, indeed, contradictory provision in the law.

15.8                 The reports of the Ombudsman should not be tabled but should be discussed in Parliament.  To that end, it is suggested that a Joint Standing Committee of Parliament should be established to consider the Reports of the Ombudsman.  These discussions should be attended with the widest publicity.

15.9                 The Ombudsman should be given express power to publicize cases of non-compliance with his recommendations.

16.0                 Finally, it is suggested that a separate fund to be set up by Parliament from which payments of claims jointly agreed upon by the Ombudsman and the relevant public body may be made.

16.1                 The office of Ombudsman should be decentralised with desk officers in the Districts.

16.2                 The enhanced role being argued for the office of Ombudsman may require that the office be staffed with in-house Counsel to assist it in its work.  Is that too much for any country to bear?  The efficiency of output that will accrue to the populace as a result should far outweigh the costs of hiring an in-house counsel.

17.0     LEGAL AID SCHEMES

 

17.1     (a)        Legal Aid Scheme Operated by the Registrar

17.2     This scheme is limited to providing legal aid in capital murder cases only.  It does not cover other crimes nor does it have any application in civil matters.

Its limited scope deprives it from being an effective weapon in the armoury of ATJ.

17.3     The provision of an adequate legal aid scheme requires a policy decision by the Government as well as adequate budgetary allocations to sustain the scheme together with clear and transparent rules and regulations as to access.

There is currently no evidence of Government’s inclination in this direction.  The present situation is an affront to justice principally because the litigant with no means or just modest means receives no protection of any sort from the legal system.

17.4     (b)       Legal Advice and Services Center

17.5     The fundamental shortcoming of this Center is that it is manned by one legal aid officer who performs all the functions of that office.  The office has no assurance of resources.  The  tripartite arrangement whereby the office was to be run by the Attorney General’s Ministry, the Judiciary and the Bar has not worked.

17.6     The Center operates out of Belize City.  Apart from the structural problems which affect the center, a number of serious administrative problems plague it, as well.  Because the office is manned by a single officer, clients who travel from the districts get seriously inconvenienced when they arrive in the Center only to find that the officer is not in office (eg when she attends court or goes to the Registry to file papers, or -- as happens from to time -- when she takes on an assigned brief in a murder case).

17.7     In order to provide remediation, the following minimum suggestions ought to be considered:

(a)        establish a new legal regulatory framework for the Center
(b)        provide adequate staff for the office, including a court clerk and a secretary
(c)        provide adequate assurance of seed funds with which to run the scheme
(d)       establish a legal aid office desk to be located in the districts
(e)        make provision for wide dissemination of services that the Center can undertake
(f)        maintain a published list of fees for its services
(g)        generate a list of persons who may qualify to access those services
(h)        design appropriate forms for various case profiles
(i)         provide mechanisms for the interface of the Center with the Legal Aid Information Bureau and the Bar Association
(j)         provide for continuous training for the staff of the Center through the University of Belize

17.8     Somewhat controversial is the proposal, once adopted by resolution, by the Bar Association of Belize, to require that each Attorney-at-Law donates a certain amount of time to the Center per year.

17.9     Other devices that could be considered are:

•           establishment of a privately funded Legal Aid Trust that would assist appropriate and deserving cases in obtaining access to legal advice
•           establishment of a ‘legal aid peace corps’ with Commonwealth volunteers who would spend a minimum of three months, be appointed crown counsel for that period and be assigned to the legal aid department, with particular emphasis on servicing the districts
•           re-institution of the old practice of the Chief Justice calling upon any attorney to provide pro bono work in particular cases
•           making it obligatory that the Bar Association must find a way of ensuring that its members provide a minimum number of hours of legal aid services provided to the community per year or make a prescribed contribution to the Legal Aid Trust.

18.0     Reference must be made to a piece of forward-looking draft Bill which the Attorney General’s Chambers has prepared.  Styled the Legal Aid and Advice Bill, 2003, it seeks to establish a regulatory framework for the provision of legal services and advice to persons of small or moderate economic means in respect of civil or criminal matters where those persons are financially unable to secure legal services from their own resources.

18.1     Legal Aid is to be dispensed under the aegis of a Legal Aid & Advice Council.  Among its powers are to:

(a)        establish procedures to determine eligibility of applicants for the services  of an attorney-at-law under this Act;

(b)        establish guidelines, procedures and requirements pursuant to which legal and other services may be made available under this Act;

(c)        retain attorneys-at-law or other persons for the purpose  of providing legal services under this Act;

(d)       encourage and assist, by means of grants or otherwise, the programme of any full-time law student where the programme has objects consistent with the objects of  this Act;

(e)        utilize full-time law students in providing legal services; but any such students shall be supervised by an attorney-at-law and shall not appear as counsel in any court;

(f)        make public, by means of advertising or otherwise, the nature and extent of the legal services that are available;

(g)        establish and conduct such programmes as the Council considers advisable to provide services to persons to prevent legal problems arising in connection with the affairs of such persons, and generally to carry out the purposes of this Act;

(h)        retain persons to administer the provisions of this Act, and where the Council considers it advisable, any such persons shall, subject to such terms and conditions as may be prescribed by the Council, become employees of the Council;

(i)         advise its employees respecting the legal needs of aided persons;

(j)         establish Committees to which applicants who have been denied legal services may appeal such denial;

(k)        establish programmes providing information and counseling in legal and related matters;
(l)         make all necessary arrangements including the acquisition of premises, supplies and furnishings as are required to provide legal services;

(m)       do all things that are necessary, incidental or conducive to the attainment of the purposes of this Act.

 

18.2     The absence of Legal Information Bureaux is also rather worrisome.  The UNDP initiative to mount a pilot in three district towns must be seen as the beginning of a process to decentralize legal information in Belize.  However, there is the clear need to establish cooperative relationships between the Bureaux and the Legal Aid Centre and the Bar Association.  Where training for the Bureau Desk is warranted, it is recommended that such training should be done under the aegis of the University of Belize.

18.3     When fully operational, the Legal Information Bureaux – or Citizens’ Advice Desks – should be established in each district at the government offices and they should:

i.          Have pamphlets outlining in plain language the most common legal information required by citizens, e.g., likely sentences to be imposed for certain offences, basic information on bail, rights in relation to being arrested, questioned and charged by police, basic information on divorce, wills, etc….

ii.         Assist citizens in obtaining, completing and submitting any of the applications for house, land, birth, marriage.

iii.        Be manned by individuals who have received a basic but specially designed course in giving legal advice on the matters most common issues faced by citizens, eg, landlord, land, estates, etc.…    

 

19.0     NON-FORMAL INSTITUTIONS

19.1     Under this heading, the following were discussed in Report 1:

            The Alcalde System
            The Legal Profession
            The Press
            Justices of the Peace
            The Churches, and
            The Human Rights Commission of Belize

The comments below will be directed to the Bar Association and the Justices of the Peace.

19.2     THE BAR ASSOCIATION:

19.3     A truly vibrant Bar is a sine qua non of a functioning legal system.  There is no way there can be a fair legal system without an efficient and effective Bar since the Bar must walk hand-in-hand with the Bench in the dispensation of justice.  Just as for the Bench so the Bar too must undergo an important paradigm shift in culture, inculcating in its practices the new culture and duty to justice, the maintenance of ethical standards and prudent litigation management and continuing legal education.

19.4     Two other suggestions relate to the Bar’s duty and responsibility to:

(a)        find a way of ensuring that its members provide a minimum number of hours of legal aid services to the community per year or make a prescribed contribution to a Legal Aid Trust Fund; and
(b)        ensure that its Scale of Fees is commensurate with actual work done.

 

 

20.0     JUSTICES OF THE PEACE

 

20.1     The history of the JPs is that it has been a heavily politicised institution.  The move by the Association of JPs to form one umbrella organization with a national constitution is to be welcomed.  But that move will not be enough to facilitate ATJ in Belize.

20.2     The following are some recommendations for consideration:

(a)        The institution must be regulated under a new and modern piece of legislation
(b)        the law must establish clear and objective criteria for qualification to be a JP
(c)        limit the tenure of JPs
(d)       provide for the renewal of appointment upon the submission of reported activities and a Police Certificate of Character, among others
(e)        must contain a Code of Conduct, and
(f)        must regulate essential training for JPs

21.0     OTHER OBSERVATIONS AND RECOMMENDATIONS

21.1     (a)        Victim’s Compensation Fund

It is an affront to humane societies that innocent victims of crime should go uncompensated.

So Belize is to be congratulated for taking the first tentative steps towards a Victims Compensation Fund by preparing a draft Bill on the subject.

21.2     Styled the Crime Victims Fund Bill, 2003, the Bill provides that a victim of crime who has suffered direct physical, emotional or pecuniary harm as a result of the commission of a crime, including, in the case of a victim who is under the age of eighteen years of age, incompetent, incapacitated or deceased.

21.3     The draft Bill places the responsibility for the management of the fund on the Ombudsman.  Section 6 says:

The Fund shall be used and the Ombudsman shall make grants from the Fund for–

(a)        medical expenses attributable to a physical injury resulting from a crime committed in Belize, including expenses for emotional or mental health counseling and care;

(b)        funeral expenses attributable to a death resulting from a crime committed in Belize;

(c)        loss of wages or salary attributable to a physical injury resulting from a crime committed in Belize;

(d)       counseling and rehabilitation expenses to victims of sexual assault, marital rape, domestic violence, gender based violence, or child abuse, including sexual child abuse;

(e)        financial assistance to persons who are victims of terrorism or mass violence;

(f)        financial assistance to a victim of crime in participating in criminal proceedings as a witness, in the form of the provision of transportation, lodging and subsistence expenses;

(g)        financial assistance to a victim of crime in the form of short-term child care services, where the victim is separated from his children under eighteen years because of the crime;

(h)        payment of all reasonable costs for a forensic medical examination of a victim of crime, to the extent that such costs are not otherwise payable under any other law;

(i)         preparation, publication, and distribution of informational material setting forth services offered to victims of crime by virtue of or under this Act;

(j)         training of law enforcement officers in the delivery of services to victims of crime;

(k)        counseling to provide support to a victim of crime in crises arising from the occurrence of a crime.

 

21.4     If implemented, this would be an excellent example of best practices and an important lesson in ATJ for the people of Belize.

22.0     INDIGENOUS & LAND OWNERSHIP ISSUES

 

22.1     There have been calls by Mayan Community leaders to the government to institute clear policies regarding rights of land ownership and occupation of the Mayan Communities in the Toledo district.  Allegations of illegal logging abound and reports speak of sporadic conflicts with the police.

22.2     Already, litigation has been undertaken by the Mayan community for the recognition and protection of indigenous rights.

22.3     In that litigation before the Inter American Commission on Human Rights (IACHR) the Commission ruled, inter alia, that

(a)        The State violated the right to property enshrined in Article XXIII of the American Declaration to the detriment of the Maya people, by failing to take effective measures to recognize their communal property right to the lands that they have traditionally occupied and used, without detriment to other indigenous communities, and to delimit, demarcate and title or otherwise established the legal mechanisms necessary to clarify and protect the territory on which their right exists.

(b)        The State further violated the right to property enshrined in Article XXIII of the American Declaration to the detriment of the Maya people, by granting logging and oil concessions to third parties to utilize the property and resources that could fall with the lands which must be delimited, demarcated and titled or otherwise clarified and protected, in the absence of effective consultations with and the informed consent of the Maya people.
(c)        The State violated the right to equality before the law, to equal protection of the law, and to nondiscrimination enshrined in Article II of the American Declaration to the detriment of the Maya people, by failing to provide them with the protections necessary to exercise their property rights fully and equally with other members of the Belizean population.

(d)       The State violated the right to judicial protection enshrined in Article XVIII of the American Declaration to the detriment of the Maya people, by rendering domestic judicial proceedings brought by them ineffective through unreasonable delay and thereby failing to provide them with effective access to the courts for protection of their fundamental rights.

22.4     In essence, the indigenous Maya assert native or indigenous rights over some 500,000 acres of land in the Toledo District of Belize based on what they claim is their customary land tenure.  Their claim is independent of any instrument or grant by the Crown.

            Undoubtedly, the case and the issue of Maya indigenous rights to a homeland riase complex but exciting and tantalizing legal issues.  It is also a potentially explosive ethnic issue in Belize.

22.5     The Maya of Southern Belize, in addition to some of the common law principles emanating form the judicial decisions, are relying on existing and emerging human rights norms contained in such documents as the Rio Declaration, ILO Convention No. 169, the proposed American Declaration on the Rights of Indigenous Peoples and the draft United Nations Declaration on the Rights of Indigenous Peoples.  They see emerging human rights norms relating to the right to development and the right to a safe and healthy environment as norms through which they can bring  about the progressive development of standards that are more sensitive, responsive and useful  to indigenous people.

            Belize in the near future may well be the first Commonwealth Caribbean territory in which the still evolving indigenous rights jurisprudence is deliberated either through the domestic courts or the IACHR, or both.

22.6     This claim has serious implications for ATJ in Belize because it could open the floodgates to other land claims by the Garifuna, Mestizo, Creole and East Indian ethnic groups in Belize.

23.0     REFORM OF THE LAWS

23.1     Specific recommendations apart, there is a general need to reform and update basic laws which touch on economic and social development.  Examples of such laws would be those dealing with the social sector, minorities, disadvantaged groups in society, the environment and poverty.  Also requiring reform would be those procedural laws which impede faster decision-making in the courts, thus making them costly and slow.

24.0     ALTERNATIVE METHODS OF DISPUTE SETTLEMENT

 

24.1     Access to justice now necessarily involves effective judicial reforms which include new mechanisms which help to free up the courts from unnecessary litigation.  Alternative Dispute Resolution processes have become an acceptable and indeed inevitable part of creative lawyering in the 21st century.

24.2     A conscious determination and resolve on the part of the State to introduce ADR processes into the legal and judicial system would be a big boost to the fledging regime of ATJ in Belize.

25.0     OTHER REFORMS RELATED TO THE JUDICIARY, THE TRIAL

PROCESS & THE LAW

25.1     Other reforms of a supportive nature, that would be beneficial to the regime of ATJ are:

            Strengthening the Administration of the Courts;
           
Modernizing the judicial infrastructure;

Removing the intimidation and overwhelming awe of the criminal justice system in trials relating to children and victims of sexual offences;

                        Providing a special regime for vulnerable witnesses;

Incorporating in the domestic law of Belize the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power;

Greater involvement of the National Crime Control Council, the Bar Association and the Human Rights Association of Belize in the redress of the imbalances in the judicial and legal system;

Facilitating access to land with certainty of ownership and tenure, especially for low income or informal sectors, thereby creating access to credit for those sectors.

25.2     The implementation of these basket of ideas should greatly improve the theatre of ATJ in Belize.

26.0     PROBLEM OF POVERTY & UNDERDEVELOPMENT

 

26.1     The problems of poverty, illiteracy, underdevelopment, race, social ranking and economic factors ought not to be underplayed in any study of ATJ.  Added to these are the problems of inaccessibility, lack of resources and lack or inadequacy of basic information and lack of access to legal counsel or citizens advisory desks.

People who live in remote areas, women, handicapped persons, children, prison inmates, the elderly, indigenous sectors and generally poor people have serious challenges accessing ATJ. 

26.2     The awareness of these challenged and disadvantaged groups about their basic legal rights is generally non-existent.  The ratio of lawyer to population size of 240,200 as at 2000, is approximately; Corozal – 1, Orange Walk – 3, Belize City – 45, Cayo – 5, Stann Creek – 1 and Toledo – 0.

26.3     But of these challenges, the one at the top of the list is poverty.

The Population Census 2000 and Abstract Statistics 2001 further show that the country’s mean income is $835 per month.  However, this figure may be misleading as the average income in rural areas is significantly less.   For example, 23% of Toledo’s population earns less than $1400 per annum.  The mere traveling costs for a legal representative from Belize City to attend a client’s needs in Toledo would be approximately $230, which is a considerable proportion of that client’s annual income.

26.4     This means that the scales of justice are tipped heavily against the disadvantaged groups in society.

And a legal system which does not provide a level playing field for ATJ is a flawed system.

26.5     These points raise serious public policy issues which are far beyond this study.  However, attention has been drawn to these concerns because they impact so significantly on ATJ in Belize.

 

27.0     FINDINGS, CONCLUSIONS, RECOMMENDATIONS AND BEST PRACTICES

27.1     (a)        Findings

            The following are the findings which arise from this study:

•           While the Constitution of Belize is essentially democratic, it contains shortcomings with respect to questions of governance and access to justice.

•           The Constitution lacks structural and institutional mechanisms for accessing the fundamental rights provisions in the Constitution.

•           The Constitution of Belize contains sufficient details on the governmental structure but has virtually little to say about the governance of Belize.

•           There is a general lack of public awareness about the Constitution and the political system of Belize.

•           Apart from the laudable efforts of the Political Reform Committee, there have been no similar sustained efforts at public awareness education, especially in the area of governance.

•           The existing operating rules of the judiciary need a radical shift to embrace new and modern alternative dispute resolution processes.

•           The Judiciary is on the verge of introducing new Civil Procedure Rules to embrace caseload management.  That initiative, if fully implemented, should address the principal concerns of backlog and delay in the disposition of cases.

            This is in keeping with best regional practices in the OECS, Jamaica, Trinidad & Tobago and (soon to be) Barbados.

•           The cumulative effect of the long list of criticisms against the judicial and legal system constitute a restriction of access to justice by the population at large.

•           Plans to introduce  Primary Dispute Resolution mechanisms in the operations of the Family Court are timely and relevant.

•           There has been an intolerable increase in domestic violence involving children especially.

•           The Magistrates’ Courts perform a most difficult job against the most uncongenial circumstances.

•           The operating system of the Magistrates’ Courts requires a radical overhaul so as to reduce the huge backlog of cases, still to be heard.
           
•           The office of the Attorney General which has overall responsibility for law and order is inadequately staffed for the range of responsibilities thrust upon it.

•           The office of the DPP suffers from a serious shortage of manpower; having regard to the volume of criminal cases which need the attention of the DPP and his staff.

•           The introduction of Caseload Management in the Supreme Court poses the most serious challenge to the Court Registry.

•           The Police Department needs continuous and upgraded training in pre-trial and crime scene investigation and docket preparation procedures.

•           There is a need for the Police Department to work on its image and relationship with the public.

•           While conditions in the Hattieville Prison have improved considerably since 2002, there are still a number of serious shortcomings that need to be addressed, especially in the area of rehabilitation and prisoner reform.

•           The profile of the Ombudsman is essentially limited to Belize City and is not nation-wide.

•           The two legal aid schemes in operation in Belize are woefully inadequate and deficient in several respects.

•           The Bar Association has failed in its duty to assist the populace of Belize with a credible legal aid scheme.

•           The Justices of the Peace are currently perceived as essentially political appointees.

•           In view of the increasing crime culture, there is an urgent need for the establishment of a Victim’s Compensation Fund.

•           Indigenous and land ownership issues raised by the Mayan Community need to be seriously tackled.

•           Issues of poverty and underdevelopment underpin access to justice in a most fundamental and serious way.

27.2     (b)       Recommendations

            The following represent the main recommendations arising out of this study:

•           A sustained and concerted campaign ought to be mounted to sensitize the people of Belize as to their Constitution, especially with regard to the fundamental rights provisions.  A clear role ought to be crafted here for the University of Belize, the Human Rights Commission of Belize and others.

  •         The introduction of Caseload Management in the Supreme Court should be expedited as a matter of extreme urgency.

•           Primary Dispute Resolution processes ought to be introduced in the Family Court as a matter of extreme urgency.

•           Caseload Management processes ought to be introduced in the Magistrates’ Courts as a matter of extreme urgency.

•           The intolerable increase in domestic violence involving children especially calls for radical intervention in the form, for example, of a Child Care and Protection legislation, in addition to the International Child Abduction Act, 2000 (Chap 177).

•           Government should consider strategic staff increases to the offices of the Attorney General and the DPP.

•           There should be a sustained training program for the Court Registry staff in advance of the introduction of Caseload Management in the Supreme Court. 

(Some training is already taking place).

•           The Police Department ought to work on improving its image with the populace while intensifying its efforts at community policing.

•           Prison conditions at Hattieville should be brought in line with international standards while prison rehabilitation training and reform are actively pursued.

•           The office of the Ombudsman ought to be decentralized and spread throughout the Districts.

•           Consideration ought to be given to implementing the basket of reforms listed in this Report under the discussion on the Ombudsman.

•           The establishment of a credible and sustainable Legal Aid Scheme is critical for Belize.  To that end, the several individual Recommendations listed in this Report ought to be given the most serious attention and consideration.

•           The institution of the JP ought to be put on a new legislative pedestal with clear regulatory regime to govern the recruitment and performance of the institution.

•           The establishment of a Victim’s Compensation Fund ought to be effected as a matter of extreme urgency.

•           Government ought to address the question of Mayan indigenous and land ownership rights in a timely manner.

•           Government is urged to give continuous attention to the alleviation of poverty in Belize, having regard to the priorities as determined by the Government.

•           Other recommendations which require governmental policy decisions are:

•           the reform and update of laws, especially those which touch and concern economic and social development;

•           the introduction of Alternative Dispute Resolution (ADR) into the legal system of Belize;

•           the introduction of imaginative measures to strengthen the administration of the courts;

•           the modernization of the judicial infrastructure;

•           the removal of the intimidation processes in trials involving children and victims of sexual offences and vulnerable witnesses;

•           the promulgation of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power;
           
•           the active engagement of the National Crime Control Council, the Belize Bar Association and the Human Rights Commission in a continuous review of the challenges to ATJ in Belize;

•           land tenure reform in Belize

•           the active involvement of the University of Belize in all aspects of the educational thrust relative to ATJ in Belize.

27.3     Best Practices

Examples of ‘Best Practices’ have been highlighted throughout this Report in the context of the appropriate discussions.

 

 

Albert K. Fiadjoe

April  17, 2004