Chief Justice Ivor Archie on Tuesday delivered the traditional speech at the ceremonial opening of the new law term. Today, the T&T Guardian presents the remainder of that presentation:
Challenges
If you have been listening attentively, you might be wondering how the Judiciary has managed to accomplish anything at all if key positions remain unfilled because the pay is so unattractive. The truth is that we are still operating far below our potential because progress and innovation is being stifled by the fact that, historically, we are consistently under-resourced.
It is only because of the extraordinary dedication and loyalty of our staff that we remain vibrant. The problem, in my respectful view, lies in the public sector financing model that places the Judiciary in competition with executive ministries both in terms of bidding for human resources and for budgetary allocations.
The problems experienced at the San Fernando Old Magistrates Court and repeated in various incarnations across the Judiciary are symptomatic of a broader structural deficiency that inhibits real innovation and the efficient and effective management of the institution and it is to this dilemma that I now turn.
The dilemma
I would like to preface what I have to say next with a health warning. As head of the Judiciary, an independent and neutral branch of government, I am acutely aware of the need for balance, especially at this time and in an atmosphere where active verbs like “bash,” “slam” and “attack” make attention-grabbing headlines.
My only desire is to continue a discussion on issues that have historically plagued the Judiciary and indeed the entire public sector, which are not peculiar to any particular dispensation and which we all inherited. I trust that reporting and commentary on this speech will be measured and appropriately balanced as that will assist the national community in having a constructive and fruitful discourse.
The Constitution establishes the Supreme Court of Judicature with the special function of upholding the rule of law, which involves protecting the fundamental human rights and freedoms of persons sometimes against Executive action. This philosophy lies at the heart of T&T’s parliamentary democracy.
The availability and effective operation of the courts is the unspoken assumption on which the provisions of our Constitution and laws are predicated, on which peace and order is maintained, upon which commerce and business are hinged, and for which our regional and international credibility depends. Adequate funding, as well as the flexibility to manage these funds effectively and efficiently, therefore, seems to be a logical extension of the Judiciary’s mandate.
At present, the Judiciary is financed under the same model as ministries and government departments. This means that estimates are submitted to the Ministry of Finance as line items, which are then authorised by Parliament and managed by the Ministry of Finance.
However, this model presents a variety of constraints for the Judiciary with regard to;
(i) carrying out its constitutionally mandated functions,
(ii) implementing decisions with the efficiency and effectiveness needed, and
(iii) maintaining the separation of powers doctrine, upon which our Constitution is premised.
One of the most important deficiencies in the present financing model is that the Judiciary by and large is given consideration simply as another Executive agency. In times of financial stringency therefore, there is always the risk that the Judiciary’s expenditures will be trimmed at the discretion of the Executive just as it is free to trim the expenditures of the functions of its own ministries and government departments.
The government only has a finite amount of money to spend in any given year. If the Minister of Finance and the Cabinet have requests for allocations that exceed the agreed cap then something has to be cut from somewhere. The easiest target is the entity not present in the room.
The danger is that it may be done without careful consideration to the Judiciary’s internal priorities, which may not be fully understood and may not be the same as other state actors.
So, for example, after having said all that I have about retraining and redeployment of human capital as being essential to innovation, when I see that our fiscal 2015 budgetary allocation under the line item “Development of a Modern Governance and Organisational Structure for the Judiciary of T&T” is zero, if I were the type of person who would permit myself, I would be driven to despair.
During times when there is a fiscal surplus, there is still the risk that the Judiciary will be considered as below priority in the nation’s development context given the nature of the election cycle and the political culture in T&T.
Because the Judiciary has been a de facto pillar of stability in this society from even before independence, it goes without saying that politicians, MPs, ministers and budget administrators may be easily lulled into thinking that judicial affairs may not be a front-burner issue. We can only surmise that as far as resource allocation and management is concerned; it may have suffered from neglect as a result of its own good image.
This misunderstanding, that the Judiciary is not in dire need of resources and the ability to holistically manage same, may have been further reinforced by the fact that there is still work, admittedly, to be done in terms of holistic needs assessments and planning for the justice sector in T&T, which means that the full budgetary implications for the cost of modernising the Judiciary and the justice sector may not yet be fully known in the short term.
However, it is not acceptable practice, given the state of the art (planning, strategic management, managing for results), to wait until the full cost implications for everything are known before going forward with implementation.
As such, while much of the planning and needs assessment work is ongoing in the Judiciary and elsewhere, in the interim direct opportunities for improvement in the administration and dispensation of justice should and must be exploited whenever they present themselves. The Judiciary has therefore been quick to seek to exploit such opportunities but has been confronted by challenges that work against achievement within a reasonable time frame.
In recent years, the Judiciary has taken steps to lead the reform of the justice sector by recognising our interdependence with other arms of the State and proposing tangible measures to partner with justice-sector agencies, including the ministries of the Attorney General, Justice, Legal Affairs, National Security and stakeholders such as the Police, Prisons, and the Director of Public Prosecutions in order to make the essential reforms happen.
You are already aware of some examples, which include our Judiciary/Justice Sector Inter-Ministerial Committee and various Judiciary/interministerial committees, sub-committees, and working groups that have come together to work on implementing various laws and new pilot projects,as well as resolving various infrastructure issues.
It would be both ironic and tragic if capacity-building took place in our stakeholder agencies without concurrent and commensurate advances in the Judiciary. Presumably, better drug interdiction, forensic and other evidence-gathering capabilities, and overall crime detection rates will result in more arrests and prosecutable cases. It all ends up with us! Criminal justice reform cannot be piecemeal, all the elements of the strategy must be in place for any to work effectively.
The Judiciary recognises that some bureaucracy is important for accountability, as a condition of maintaining public trust and confidence. But our own experience has shown that ease of implementation has been negatively impacted by a number of non-value added administrative requirements and processes, which only serve to extend the length of time it takes to get projects off the ground or to exploit opportunities as they arise or to deal with newly recognised challenges during the fiscal year.
If our fiscal 2015 development programme allocation is taken as an example, we have a situation where funding was requested for a number of new projects and less than the required amount, even the Cabinet-approved amount, was received, the result is that a project such as the development and implementation of a facilities master plan for the Judiciary cannot begin until 2015 given the number of administrative, and in some cases “non-value added” processes, that must be completed prior to the commencement of the work. These constitute an additional administrative burden for an already under-resourced Judiciary.
The project for the development and implementation of a facilities master plan for the Judiciary was approved by Cabinet in March 2014 for the amount of $3.35 million, and the amount of $3.12 million was requested in our DP estimates for 2015; however, only $1.5 million is proposed in the budget. Given that the Judiciary does not possess the resident expertise, and that time is critical in achieving the project deliverables, this project was one that should be outsourced.
This project can only be properly and efficiently outsourced at a tender limit above the accounting officer’s limit, which means that we must defer to the Central Tenders Board’s (CTB) authority.
The CTB, however, would not contemplate soliciting tenders until it receives confirmation of funding from the Ministry of Finance and the Economy. As a result, the Judiciary must now look through its portfolio of projects and seek to transfer or vire funds from projects that might be deemed as being of lesser priority than the facilities master plan project.
This is just an example to show how the current financing model imposes a variety of constraints on the successful implementation of plans to improve the work of the court with the efficiency and effectiveness needed. Common manifestations of these constraints are:
• delays in receiving releases; and
• delays in fulfilling requests for virements and transfers of funds.
In fiscal 2014 we experienced a decrease in the Judiciary’s allocation owing mainly to the fact that the development programme was cut by approximately 50 per cent compared to fiscal 2013, as well as the fact that no allocation, apparently for technical reasons, was provided for the operation of the Family Court, resulting in a $25 million shortfall.
As such, the Judiciary, seeking but not obtaining an explanation as to why this occurred, had to make major changes in its work programme for 2014. Of course, one of the consequences was that we had to request virements and transfers of funds to fulfil those obligations that were deemed by us to be high-priority.
Delays in receiving releases and delays in fulfilling requests for virements and transfers further compounded the matter. Not only were contractors not paid on time, but many essential projects and contracts came to an abrupt halt. Those that continued without payment did so in good faith. From the Judiciary’s point of view it is not anywhere near ideal to have to depend on a contractor’s goodwill to undertake projects that relate to the functioning of the courts.
From a project-management point of view, when projects are halted it can be very difficult to regain the momentum to continue the project as when it was first commenced. From a contractor’s point of view, when projects are halted in the local context, they would shift their resources to another paying project while waiting to be paid.
From the point of view, finally, of internal and external stakeholders, in the public service context, the motivation and commitment to restart the project can be difficult given that in the Judiciary environment staff would have already turned their attention to another project or another area that required close management.
We are then further disadvantaged by the justification that is often used for not granting the allocations requested, which is that we do not have the capacity to spend the funds. Evidence cited for this is most often the existence of unspent funds from the previous fiscal year. As the younger generation is fond of saying, “Well, duh!” In the scenario just laid out, it is really unfair to use an indicator such as utilisation of funds as a key basis for refusal of funds going forward.
We are placed in a Catch-22 situation. We can’t spend because our efforts are frustrated. Then we are penalised for not spending. All of us who are or have been public-sector managers know the drill. There is a mad rush at the end of the year to spend money—just spend it—so you don’t lose it the following year. That is insane!
To date we understand that there is no stated policy that communicates and provides direction on how funds are to be released except where it is mentioned in the Financial Regulations and financial Instructions. Our experience has not been one that is consistent or timely when it comes to receiving releases and fulfilling requests for virement and transfers of funds, and sufficient explanations have not always been forthcoming.
If it is that the unexplained cuts are an indication that we must reprioritise, then at least we must have the freedom to do so within and between the various already approved heads of expenditure without further bureaucratic contortions.
How can we effectively execute our mandate and mission without real control of plant, human resource or finances? Nominal independence of the Judiciary will be of limited comfort going forward unless there is meaningful constitutional reform in these areas, particularly the freedom to recruit, remunerate and develop our human capital in the context of a clearly articulated vision and strategic focus and to manage finances without cumbersome bureaucratic obstacles.
Our fair share
The truth is that our physical plant has failed to keep pace with demand and it has stymied growth and the implementation of innovative technological solutions. Infrastructure development is grinding to a halt.
To put it into stark perspective, just looking at overall capital expenditure on our development programme, we requested $237 million for fiscal 2015; we are being granted just over 1/6 of that sum or $42 million, which is roughly 0.1 per cent of the $8.2 billion set aside nationally under development programme in the national budget.
As I have been at pains to point out since the start of my tenure, United Nations guidelines on best practice suggest that three per cent to four per cent of the national budget should be spent on developing and maintaining the Judiciary to a sufficient standard. On the recurrent side, our figure of $401 million is a little more than 0.1 per cent of the total.
Right now we have shortlisted judges for recruitment but we can’t take them on board because we have nowhere to put them. Between 2010 and 2015 the country would have spent something in the order of $300 billion and we have not got any of the judicial complexes off the ground.
I am sure that this is as a result of the sort of structural impediments that I have highlighted which introduce unacceptable delay between decision and implementation, rather than any lack of desire to deliver. I sincerely hope, however, that the $1 billion originally promised for the judicial complexes, which represents about one-third of one per cent of $300 billion, will be fully forthcoming.
I will acknowledge that a considerable amount of goodwill exists and efforts are being made to assist us. However, they tend to be ad hoc, somewhat unfocused and suffer from some bureaucratic drawbacks. I have no doubt that those deficiencies can be as much a source of frustration for ministers of government as they are for us.
What I would like to propose is a funding model that respects the independence of the Judiciary, that gives us a fair share of the national budget, that does not depend on the goodwill of whoever happens to hold the executive reins, that allows for rational and efficient management of funds and is responsive to long term needs as well as immediate environmental shifts, while retaining transparency and accountability.
I know that it is possible because in a previous job as a public-service department head in another jurisdiction, once my work plan had been discussed and approved and the overall budget voted by the legislature, the money was simply released as a block vote in four quarterly tranches for me to manage. Although there was an active Auditor General, I never did manage to get arrested.
We can go further. Let us agree on a percentage or percentage range of the annual budget for the Judiciary based on a proper needs assessment over a medium- to long-term horizon. This percentage might be reviewed at specified intervals. Then put the money in a separate block vote to be managed by us.
We will of course still be subject to audit and accountable to spend the money for approved purposes. Unspent funds can then be rolled over, with a cap on retention so that we can have smooth cash flow and pay service providers.
That seems to me to be a sensible way to run things. The truth is that if anyone tried to run a business the way we run the government it would buss! We are now in the process of constitutional reform. It is an opportune time to revisit the relationship between Parliament, the Executive and the Judiciary and to place it on a solid and sustainable constitutional footing. This, ladies and gentlemen, is my public appeal and the main point of this address.
I just have one word to the public, though. When we do start to build, none of us can afford to be selfish. When an honest effort is being made to provide facilities for the benefit of the public we cannot take the attitude that we want a court as long as it is not in our neighbourhood.
We have to conduct public business on a rational basis. Site selection must be based on a rational assessment of all demographic, physical, security, environmental and other relevant factors and not on the basis of emotional and ill-informed reaction.
That is the only practical and equitable way to conduct public policy. Ladies and gentlemen, there was a reason why I reversed the traditional order and dealt with the thank-yous first. I wanted my remarks about financial reform to be the last thing in our minds as we leave this hall. I really want us to go away and think about it and please, T&T, let’s fix this now.
I done talk!
