“Most importantly, Madam Speaker, consistent with our 2015 election manifesto promise to improve the efficiency of the administration of justice, we intend to give the judiciary the financial autonomy that it has asked for so many years—(desk thumping) coupled with the ability to manage its own resources, projects and programmes, including the responsibility for procurement and construction of judicial facilities. (Desk thumping) To achieve this, we intend to engage in detailed consultation with the judiciary early in 2016 to achieve consensus on practical and workable mechanisms to facilitate this paradigm shift by the end of 2016.” Hansard, October 5, 2015, p 41.
With these words, Finance Minister Colm Imbert re-opened the door to an old debate that has significant constitutional implications. During the tenure of former attorney general Ramesh Lawrence Maharaj (1996-2001) there was a running battle between Maharaj and then chief justice Michael de la Bastide about judicial accountability for the expenditure of public money.
The essence of the debate centred around the issue of whether the judiciary should be made to account for the expenditure of public money allocated to it. One school of thought argued that this constituted an undermining of the independence of the judiciary, while another school of thought held the view that accountability for the expenditure of public money was an overriding principle of good governance regardless of the institution involved.
Financial autonomy for the judiciary is a laudable goal under any circumstances. However, the mechanisms that will be devised for guaranteeing accountability to the Parliament (that approves the appropriation) without interfering with the independence of judicial opinion from the bench (the hallmark of the system of justice) will require both constitutional and administrative adjustments.
In 1998-99 there was considerable controversy about the constitutional reforms proposed by the Panday administration for the creation of special joint select committees to inquire into the functioning of government agencies and departments. These proposals formed part of the controversy with the judiciary as the general allegation was that all of this was designed to undermine the independence of the judiciary as well as Service Commissions.
Sixteen years later, these reforms have not produced these deleterious effects and the country is better off for the culture change in favour of greater accountability and scrutiny.
The policy announcement on the judiciary now reopens an old debate, but hopefully this time the fears of the past will not be present. The issue of judicial accountability to Parliament can draw some comfort from similar reforms that have taken place in the United Kingdom where centuries-old traditions were altered under the Constitution Reform Act 2005.
More recently, the Lord Chief Justice of England and Wales, Lord Thomas of Cwmgiedd spoke on the subject of “Judicial Leadership” at a conference on “The Paradox of Judicial Independence” in the United Kingdom on June 22 instant.
On the issue of reporting to Parliament, the Lord Chief Justice had this to say:
“In the light of the increasing responsibilities of the judiciary, I have taken, with the agreement of the Judicial Executive Board, the position that the Lord Chief Justice should present an annual report to Parliament. The first report was submitted in the Michaelmas term of 2014 and the intention is to submit a report every year. It enables the judiciary to explain in what it is hoped is a relatively short and readable document what the judiciary is doing in the areas in which it has a responsibility for the delivery of justice, the problems it faces and what needs to be done to address them.” (para 42)
This is a fundamental step in the direction of creating a new relationship between the judiciary and the Parliament. Lord Thomas went further to say:
“In addition, the Lord Chief Justice now attends annually before House of Lords Constitution Committee, and the House of Commons Justice Committees, to answer questions in accordance with established conventions. This is only right. If Parliament is to be properly informed, and if necessary enact legislation to cure problems, concerning the effective operation of the justice system, the judiciary must provide Parliament with the information it requires. This must however be done in accordance with conventions and guidance that safeguard the impartially (sic) and neutrality of the judiciary. It also must provide an annual report which can be the basis of a meaningful dialogue between the Lord Chief Justice and Parliament when the Lord Chief Justice answers questions.” (para 43)
The emergence of this new relationship between the judiciary and the Parliament in the United Kingdom can provide a template around which the policy offer from the Minister of Finance to the judiciary can be framed. The gremlins that were feared by the “six wise men” in 1998-99 over the policy proposal for the creation of departmental joint select committees never materialised.
It is apparent that both constitutional and administrative reforms will be required now and the involvement of the Government, the Opposition and the judiciary in the process of consultation and discussion will go a long way to accomplishing a useful constitutional change for the judiciary.