Justice Hugh Small QC (left) accepts an induction into the PSOJ from Chris Zacca, President of the PSOJ.

Eminent jurist Justice Hugh Small QC, addressing the Private Sector Organisation of Jamaica's (PSOJ) Members Luncheon held at the Hilton Kingston Hotel on Wednesday, called for reform of the Jamaican justice system to ensure expeditious judgements that do not negatively impact upon businesses. He said it was important to make the link between justice and socio-economic development.

He noted that slow and inefficient justice prolongs personal anxiety and anguish or worse. He concluded that the longer the time it takes to enforce contracts, the less competitive the economy becomes.

"Today I ask the question 'What does the business community demand of the justice system? How aware is the Jamaican business community of the relationship between the efficiency of the justice system and the prospects for investment and sustainable economic development?

"I suggest that in the same way that sections of the business community have taken a proactive role in the work of the police they should take an equally active role in advocating and supporting reform of the justice system."

Justice Small went on to say that he was struck by an article he read in a local newspaper some two years ago that complained among other things of the lengthy, tortuous and discouraging pathway that a litigant must endure when he/she petitions the legal system of justice.

The article went on to read: "A contract in Jamaica today can therefore be regarded as hardly worth the paper on which it is written. It has to be a very serious matter in terms of money (or egos) to stimulate a complaint to initiate legal action, knowing that the wait can be 10 years. Society takes for granted that a physician is morally committed and professionally obligated to saving lives and equally assumes, that the judiciary has a similar dedication to dispensing justice. In Jamaica, if medicine operated like the judiciary, all patients seeking medical attention would die from the treatment."

Justice Small pointed to the Justice System Report which he saw as expansive on the weaknesses of the Jamaican judicial system which he says should be of major concern to Jamaica's business community. These include:

1. Delays - the time it takes for the disposal of criminal and civil matters is unreasonably long

2.Lack of respect for individuals who come before the justice system; that is disrespect for their personal dignity, time, rights and privacy

3. Courthouses and other infrastructure are in very poor condition

4. Under-funding

5. Lack of consistency in the enforcement of laws, which contributes to uncertainty

6. Complex and archaic procedures and language

7. Barriers to accessing the justice system, including the inaccessibility of legal information, legal assistance and the courts

8. Perceptions that people are not accorded equal treatment by the justice system nor do they receive the equal benefit and protection of the law

9. Insufficient attention to human rights and some of Jamaica's obligations under international human rights treaties some of which have not yet been integrated into domestic law and practice

10. Personnel do not always carry out their duties in a professional manner

11. Outdated and inefficient practices and procedures and

12. Lack of accountability by actors and institutions within the justice system.

The report goes on to say that these problems of access and delays have decreased public confidence in it and have led to distrust of the courts.

Justice Small observed that investors know that disputes are an inevitable part of doing business and wish to know that when those disputes arise they will be resolved fairly, efficiently and speedily. He declared that an efficient justice system is a prerequisite for economic stability and confidence.

To underscore his point and to further draw attention to the arduous protracted nature of the Jamaican justice system and the adverse impact it has on businesses, Justice Small cited a case in which he took part in the litigation process back in the nineties.

In the mid-nineties John Sinclair who invested heavily in the tourist industry had a dispute with Century National Bank on its right to charge penalty interest rates. The claim for approximately J$60 million was filed on 18th June 1991. The trial started four years later in 1995. Two years after the trial started the judge gave judgment in favour of the claimants.
The Bank appealed to the Court of Appeal and the dispute was finally dealt with in the Privy Council on the 22nd of July 2004. That was nine years after the trial started and 13 years after the dispute arose between the parties.

The appeal in London lasted for three days. The Lords of Appeal in the Privy Council were shocked at the delays in the case but with typical British understatement said:
"The litigation has had several remarkable features, not the least of which is that according to the record the hearing of the appeal by the Court of Appeal took almost as long (53 days) as the hearing at first instance (55 days, 33 of which were occupied by oral evidence).

According to the renown Jamaican jurist delays mean that working capital is tied up in litigation for many years and that long periods of time are spent by employees preparing for hearings that move at snail's pace because judges have to take hand-written notes of all the evidence and all the oral arguments that lawyers present to the courts. The delays are further exacerbated by the absence of specialisation and the fact that the courts are obligated to give priority to the criminal justice system which deals with the liberty of the subject.

"The tendency in the past has been to leave the reform of the justice system to the legal profession. The justice system is as much the concern of business as any other sectoral interests.

"Business in particular will be a principal beneficiary of the modernising of the system when a greater atmosphere of stability surrounds the resolution of business disputes, said Justice Small.

Last year he tried to find out whether Jamaican business leaders regarded the necessity of a strong and efficient judicial system as a major prerequisite for economic stability. He wanted to know if, in spite of the fact that they are taxpayers, and that primary responsibility for fixing the judicial system lies with the legislative and executive branches of government, they were prepared to take effective steps to finance private sector initiatives that can address aspects of the problem that have a direct influence on business stability.

"A top commercial banker told me that several foreign investors have insisted that any disputes that arise from their investments must be arbitrated in the United States or Britain," said Justice Small thereby highlighting the lack of faith in the Jamaican justice system by businesses.

The fear factor

Feeding the multitude

DANGEROUS PETS