Issues relating to access to justice have become a focal point for contention and polemics in Constitutional Human Rights Law. Whereas all the constitutions of the Commonwealth Caribbean jurisdictions confer fundamental freedoms on the citizen, yet none speaks directly to mechanisms to ensure that those rights are properly accessed. And that is where our problem begins.
Modern law reform efforts in the Commonwealth, as a whole, turn now to focus on access to justice. While access to justice may take different forms, it is the submission of this paper that one of the cheapest and potentially most effective means to achieve that desirable goal, is through revamping the institution of the Ombudsman. But, have we done so, as a region? Sadly, the answer is no. Granted that there is no significant financial cost to revamping the institution of the Ombudsman, it is a pity that, as a region, we have not focused on putting in place a few simple steps designed to strengthen and fortify the institution as a bedrock of the protection worthy of the citizenry.
In Belize, just like the rest of the Commonwealth Caribbean, we have neither fully appreciated the potential of the institution nor sought to adapt it to become an effective source of "people power". How these two aims can be anchored in the constitutional ethos of Belize will be the thrust of this paper. Towards the end of this short presentation, I hope to share with you a number of practical suggestions, which, if implemented, should give true meaning to the legal empowerment of the citizenry.
So, I begin from the beginning by looking at the two current major law reform efforts in the UK and Belize. Both have been described broadly as finding a home under the umbrella or 'chapeau' of "access to justice". Comparing the two major reform efforts in Belize and the UK, it will be noticed that while that of Belize focuses on a broad range of reforms — from a search for quality judicial appointments to upgrading court buildings, — that of the UK is transfixed with improving upon procedural rules, designed to shift the management of trials from attorneys to judges.
While the two reform processes may look different at first glance, I would submit to you that there is an ever-present underlying common theme to these processes. Both reform efforts speak to a paradigm shift in how a modern and just society may seek to manage conflict. Both accept a need for a sea change of culture and a radical reappraisal of the approach to dispute settlement. For it is now common knowledge that the ills of the litigation process pose a crisis for the government, the judiciary, the legal profession and the populace at large.
And so, if our focus was simply to deal with 'why access to justice'? it would be fairly simple to answer. This is because a civil justice system is essential to the maintenance of a civilized society. It should safeguard the rights of individuals, regulate their dealings with others and enforce the duties of government, and most of all, make justice accessible to the ordinary citizen.
As Lord Diplock put it in Bremer v. South India Shipping Corporation Ltd [11981] AC 909, 917
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.
But what we do have here in Belize, the Commonwealth Caribbean as a whole, and the UK, is a long list of criticisms about the existing system of dispute resolution, which is essentially, through the courts. Among these are:
The cumulative effect of all these observations is to restrict access to justice. Or as Lord Devlin succinctly put it in What's Wrong with the Law (ed. Zander 1970, pp. 75-77) "Is it right to cling to a system that offers perfection for the few and nothing at all for the many?"
In his Introduction to Access to Justice, Lord Woolf stated the following three aims for the exercise in the UK:
These are some of the basic principles, which, according to Lord Woolf, should inform a civil justice system:
In my books, all these principles are extremely applicable to the institution of the Ombudsman.
The picture that emerges is that this is a time of significant change for civil justice. Indeed, we have no option but to explore alternative dispute resolution solutions in this milieu of profound change. Legal aid, for example, is one of the means by which society ensures access to justice through the courts. While I am aware the Attorney General's Chambers is fully committed to an expanded legal aid regime, it is also true to say that, as of now, Belize has no credible or established legal aid regime designed to cover both criminal offences and civil wrongs. A quick glance at these reform efforts — whether of the 'civil justice improvement' variety or the legal aid species — would reveal that both are not only time-consuming but very expensive too. Modern governments are not known to be generous with law reform efforts.
This is where the institution of the Ombudsman takes on a pivotal role. For one, we have the institution here in Belize. For another, the reforms which we need in order to turn it truly into a people's institution should not be that daunting or difficult to achieve. They are relatively inexpensive. In his recent book, Winner Takes All, Professor Selwyn Ryan deals with some proposals for reforming Caribbean democracy. Among his reform proposals is the suggestion to "provide the office of the Ombudsman... with material and other resources needed to enable him to monitor administrative abuse and to intervene more efficiently to minimize it" (p. 254). The problem with that formulation is that it is couched in very general terms and so is susceptible to various interpretations. So, let me share with you some of my vision for the institution of the Ombudsman.
I have already made the fundamental observation that in Belize, just like the rest of the Commonwealth Caribbean, we have neither fully appreciated the potential of the institution nor sought to adapt it to become an effective source of "people power". How then can we improve upon this situation? Before I address specific recommendations, it maybe helpful to set my recommendations too in their proper context.
A number of critical considerations underpin the submissions, which I now wish to share with you. It is a verifiable truism that modern governments rely on a huge bureaucracy for the carrying out of their business. That bureaucracy is largely accountable only to the political masters, never to the populace. Yet the enormous discretion, which it exercises, is unparalleled.
In far colder climes, Sir Cecil Carr was able to observe as early as 1941 that "we nod approvingly when someone tells us that, whereas the State used to be merely policeman, judge and protector, it has now become schoolmaster, doctor, house builder, road-maker, town-planner, public utility supplier and all the rest of it".
This statement acknowledges the fact of the enormous growth in the nature and ambit of state power. The state has assumed an ever-increasing range of responsibilities. Through nationalization it controls most of the basic industries and the goods and services they supply. It runs a comprehensive system of social services providing benefits from just before the cradle (by way of pre-natal services) to the grave, and in between it provides education, a health service, sickness benefits, unemployment benefits and old age pensions. Such enormous power must have profound implications for our traditional understanding of what constitutes our basic freedoms. The dilemma of the modern state is, therefore, how to control this executive power through acceptable constitutional arrangements.
This is a critical challenge, which faces all constitutional systems, which aspire to democracy. How does one devise and implement structures and measures whereby this bureaucracy may be made accountable for its actions?
Belize operates a system where the Constitution guarantees fundamental rights to all but provides no system of legal aid to enable aggrieved citizens to vindicate their rights and seek recourse to justice. To litigate a case involving a breach of fundamental freedoms is tantamount to putting together a powerful armory of wealth, legal expertise, power and process, — all of which are very much beyond the reach of the ordinary citizen when there seems not even to be a citizen's advisory bureau.
Furthermore, Belize does not have a small claims court where the ordinary citizen may refer their petty complaints. Small claims constitute the vast majority of cases which pass through the litigation system. What this means is that the small claims system remains a key component in the provision of access to justice. It assists those who cannot afford the costs normally associated with civil litigation and who are not eligible for legal aid either. As Lord Woolfe puts it in his report:
In an increasingly consumer based society there is a need to provide an effective forum for the sensible resolution of such disputes.
Finally, Belize has no integrity legislation or Integrity Commission. Integrity Commissions have been found to be a most important adjunct to the mechanisms for the protection of the public against abuse and intolerable conduct on the part of those in authority.
In the light of the above, it is submitted that the Ombudsman of Belize ought to be the critical focal point for the ordinary citizen to have some close affinity to the Constitution and also to enjoy the benefits of constitutional protection.
The submissions, which follow, will seek to capitalize on these considerations. I have expressed them in no order of coherence or importance but they are, in my view, critical to the issues at stake if we are to take seriously the constitutional protection of the citizen.
In my cluster of recommendations, I start with issues, which revolve around a reformed legal framework, designed to give greater efficiency to the operations of the Ombudsman.
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.
The reports of the Ombudsman should not only be tabled but should be discussed in Parliament. To that end, I would venture to suggest 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.
Let me say a word about the gap which I would like the Ombudsman to fill until the State is able to put in place the appropriate institutions by way of a small claims court.
In the absence of a system of legal aid in civil cases, someone ought to fill that vacuum in the meantime. The office of the Ombudsman is the most logical one to double up as a Small Claims Court. Cases of a limited jurisdiction may be assigned to the Ombudsman on the understanding that his decision would be final. This would be akin to the lay magistracy system, which applies here in Belize. The Ombudsman would determine such cases using basic commonsense and rules of fairplay.
Let me now address one important consequence of my recommendations. It is a cost and efficiency factor.
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.
Also, the Ombudsman can only truly be the common man's lawyer in a milieu where his office is bolstered and assisted by state supported systems, such as the existence of a code of conduct for public officers and the imposition of an obligation on the part of the bureaucracy to conduct public affairs fairly and reasonably.
I speak also of the need for a Code of Conduct to regulate the operation of the public services of Belize. Many countries in the wider Commonwealth have found the wisdom in adopting various forms of such a Code. Some have even gone further to establish an Integrity Commission. I am not going so far. I will be content with a voluntary Code of Conduct, which would provide some objective yardstick, in broad general terms, as to what is acceptable conduct in a public officer. Such codes can be found in countries as disparate as South Africa and Uganda.
Finally, I wish to draw my last lesson from the Constitution of South Africa. It has to do with what I have described as an obligation imposed on the public services of South Africa to maintain a just administrative system.
Section 33 of the Constitution of the Republic of South Africa speaks to a right conferred on the citizen to expect nothing short of administrative action that is lawful, reasonable and procedurally fair.
And, section 195 sets out basic values and principles governing public administration, two of which are that "peoples' needs must be responded to" and also that "public administration must be accountable".
Legislation is sometimes a useful instrument in setting norms and standards of correctitude and good behavior in public administration. This is the backdrop against which delay and apathy in the decision-making process ought to be tackled.
After preparing this speech, I decided to visit the reports of the Ombudsman of Belize, to see if I was being a hindrance or an asset to his cause. I did not have to go far. This is what the Ombudsman publicly acknowledged last year in his presentation to the Bench and Bar Colloquium right here in Belize:
What did Hamlet, Prince of Denmark, have to say about "the law's delay"? If a citizen does not get justice from our Supreme Court, whither is he going to turn? Whither? (at p.52, 2001 Belize Law Review, vol. 1 no. 2 ).
I now reply publicly to his rhetorical question: To the Ombudsman — I dare suggest.
In this address, I hope you will find material for the thoughts expressed by St. Paul many years ago:
Whatsoever things are true,
whatsoever things are honest,
whatsoever things are just,
whatsoever things are pure,
whatsoever things are lovely,
whatsoever things are of good report;
if there be any virtue,
if there be any praise
think on these things.
© Albert Fiadjoe, 2002.
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