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Kawaley calls for legal reforms

Chief Justice Ian Kawaley (Photo by Akil Simmons)

The island’s judicial infrastructure will remain in “constant crisis management” mode unless the Bermuda Government is prepared to support its modernisation, according to Chief Justice Ian Kawaley.

Mr Justice Kawaley urged the Government to listen to concerns raised by the judiciary and provide proper administrative support to “get us off the linoleum” and focus on higher-level reforms, including video link evidence in civil and criminal trials.

He warned that Bermuda had fallen behind other jurisdictions with similar economies because their administrations had placed a higher value on their courts.

“We are living at a very basic level of existence; it’s cheap and cheerful,” Mr Justice Kawaley said.

“We should not regard it as a tremendous triumph to fill a very junior post or to ensure that cases are being heard. We should be able to look at reforming our system at a high level to make it operate in a way that is comparable to our sister jurisdictions.

“One way we could cut through this morass of having no autonomous Department of Judicial Administration with our own dedicated human resources and building maintenance capacity would be to create a cross-departmental committee with a representative from the judiciary, the Finance Department, Legal Affairs, Department of Human Resources, the IT department, Public Works and Government House.

“This would bring together a group of people whose job it is to look at how the judiciary operates and what it needs.”

The Chief Justice lamented the lack of judicial representation in the Government as well as the lack of a coherent framework for filling judicial vacancies.

He told The Royal Gazette: “We have expanded exponentially over the last 20 years; the expectations of litigants in terms of what we should deliver has increased exponentially, as has the complexity of criminal and civil cases as well as how quickly we should deliver justice.

“It is foolish to think that we can meet the demands that are placed on us using mid-20th century infrastructure.

“Unless we get the necessary political support to look at the big-picture issues, we will be struck in a constant crisis management mode, which is simply not good enough.

“By big picture I mean the need to allow us to deal efficiently with issues like filling judicial posts, promotion and succession planning and having sufficient autonomy to be able to run the judiciary, particularly modernising our IT resources, in an effective manner.”

In 2013 the Chief Justice led calls for new laws allowing evidence to be given by video link in civil and criminal cases involving expert witnesses and child victims of sexual abuse.

The proposals have yet to be acted on and Mr Justice Kawaley suggested that Government’s legislative agenda was quick to reform company and trust legislation to attract new business but slow to react to initiatives that “have some society benefit which may be less tangible and easy to grasp”.

“Today, we are facing challenges of holding society together; there is a vast disparity between those in a high net worth bracket and those in the lower bracket,” Mr Justice Kawaley said.

“It’s the work of the judiciary, as much as the executive and the legislature, to help to hold society together. We cannot do that effectively if the importance and significance of the judicial function is not recognised and sufficiently invested in.

“I have considerable sympathy with the challenges Government faces, which are perhaps greater than ever before, but it would be welcome to have some signal that the courts are recognised as partners in that process of making Bermuda work.

“Those of our needs which are most easily attainable require simply a little bit of focus and not that much expense.”

The Chief Justice added: “The judiciary should be regarded by Government as part of Bermuda’s essential infrastructure that has to be nurtured for the benefit of the community it serves. It does not always feel like that is the case.”