“Where is the justice?”
Editor’s comment: This article by Patrick Hoyos brilliantly explains what is probably one of the most destructive forces in our society and economy – the inability of our justice system (for a variety of reasons) to deliver justice. Bajans have long known that our highly politicized and under-funded justice system cannot be relied upon, and that “Rule of Law” in Barbados means that those in positions of power can change or ignore the rules and the law without accountability.
The big problem for the elites is that with the advent of the internet, Barbados lost the power to control information. Thus, foreign investors and people who might be thinking about doing business in Barbados now know that business disputes typically take decades to resolve before the Barbados courts. Smart money runs from doing business in such a jurisdiction.
Increasingly international investors and companies are happy to have their money flow through Barbados to other jurisdictions – but invest or do business here? Leave the money here? Now that’s something else.
We’ve reprinted Patrick’s article here in full, lest someone pressure him to remove it from his own website, but we ask you to read the full article at The Broad Street Journal. If you live, do business or invest in Barbados, you’ll soon find yourself visiting The Broad Street Journal on a daily basis and eagerly anticipating the next article.
A bridge too far
By Patrick R. Hoyos Published May 24, 2011
It is now three months since I wrote in this space about The Tribunal That Won’t Deliver its Judgment.
Three months since I noted that, despite having to wait three years after winning their case in court to have hearings before the Severance Payments Tribunal to determine the “quantum of severance,” and nearly a year since those hearings had ended, no judgement had yet been delivered.
Three months since I pointed out the frustration felt by all of the plaintiffs that justice for them seemed only to exist on paper but could not find its way into coin of the realm.
Three months since I pointed out that one of the plaintiffs had died without receiving his settlement.
I asked then, “Where is the justice?”
Up to late last week, as far as I understand, nothing had changed.
The fact that the case continues unresolved makes it an “unsolved mystery,” because all of the evidence is in, all of the summations have been made, the whole system has done what it was supposed to do, except deliver a judgement.
You will remember the bare bones of the matter: When Sagicor acquired Life of Barbados in 2003, it took the position that the agents of the acquired company were independent contractors and thus not eligible for redundancy payments before being rehired by Sagicor.
Sir David summarised the case before him as follows: “The issue for determination raises the perennial question: Are the workers engaged under a contract of service, or under a contract for services?”
The former chief justice found for the defendants, stating that “The picture which emerged are that the defendants are professional persons engaged by Sagicor to sell its products. None of the defendants was free to set his/her own standards of performance.”
After many delays, the Severance Payments Tribunal heard the matter relating to how much, if any, severance would therefore be due to the agents, as they had won their case. The hearings wrapped in April. April 2010, that is.
The problem seemed to have been that the tenure of the tribunal’s chairman, Mr. Elson Gaskin, expired on April 2, 2010.
But either swearing him back in or getting a new chairman to take over and deliver the judgement has so far proven a bridge too far for the Barbados justice establishment.
There seems no solution in sight.
Will one or the other of the options described above be someday applied? Or will something else happen? Like maybe ordering the whole thing to be re-heard? Or will we continue as we are – doing a whole lot of nothing – for a few more years?
Only God and the Solicitor-General’s Office seem to know.
How can we as a country set up tribunals to deal with cases like these only to have people kept on the hook for indeterminate lengths of time, with no word at all about what in tarnation is going on?
Are those who deliver justice in this country so far above ordinary people that the latter should just sit and be quiet until whenever it is deemed that a solution will be applied?
Is nobody on the justice side embarrassed by this? Does nobody on the justice side care about the hardship being caused to the people awaiting judgment, or more broadly about the harm this inaction may be doing to the reputation for timeliness of our system of justice?
How do we expect our politicians and businessmen to go out and tell foreigners to come here and invest because we have the greatest justice system and that if they ever find themselves in a contractual dispute they will have rulings handed down in reasonable timeframes?
The pathetic inability of the institution that is the Severance Payments Tribunal to conclude this matter, for whatever reason, will do nothing for those efforts.
In my view, it only helps drive another nail into the coffin of our attempts to get more Foreign Direct Investment into this country.
If you can’t see a direct correlation between the two, dear reader, I probably won’t be able to convince you.
Meanwhile, the primary individuals in the matter continue to await justice.
May it please the court.