Editorial | Freeing the judiciary

As a practical and philosophical matter, Chief Justice Bryan Sykes stands on firm ground with his suggestion that the Court Administration Division (CAD) be given full control of the management of the entirety, rather than a portion, of the judiciary’s budget.

For it can hardly be at this stage – if that were ever the case – that the chief justice and the CAD would require the tutelage of the justice ministry in planning and executing spending on large capital projects, such as the construction of courthouses. They are allowed to do it in other areas.

Neither does it seem logical, as the justice minister, Delroy Chuck, appears to have suggested, that because the judiciary is in competition with the rest of the economy for the limited amount of the money the Government has to spend, that the CAD needs an intermediary to control whatever amount Parliament allocates to it.

Further, with respect to the larger question of philosophy, giving the judiciary full control of its budget would, as Chief Justice Sykes alluded, substantially close the circle on a big idea of Jamaica’s democracy, and enshrined in the island’s Constitution: the judiciary as a separate and independent arm of government.

Additionally, by raising the issue of control of the court’s budget, the chief justice has opened an opportunity for a broader discussion on alternative models for funding the judiciary, including adopting, as this newspaper has previously proposed, the trust fund approach, similar to what was established for the Caribbean Court of Justice (CCJ).

The trust fund arrangement removes from the CCJ the need to annually approach regional governments for subventions to finance its operations, thus affording it insulation and the possibility of being held to ransom, via the budget process, by governments with malign intent.

Established in 2009 originally as Court Management Services (CMS), the CAD was part of efforts to modernise the public sector and give clearer expression to the independence of the judiciary.

This arrangement was upgraded and formalised in law with the 2016 amendment to the Judicature (Supreme Court) Act that established it as an independent division with a chief executive officer reporting to the chief justice and an oversight board advisory board, chaired by the chief justice.

While the CAD is in charge of the general management of the affairs of the court system, the law retained for the justice ministry:

· the procurement of motor vehicles for the judiciary;

· “major capital works in relation to the courts”; and

· “the collection of data for court management information systems, and policy development with respect to the justice system”.

This week, in lamenting the state of disrepair of courts across Jamaica, Justice Sykes argued for the judiciary to be in full control of its resources, as is the case in some jurisdictions, including Guyana.

FUNDING MODELS

Although he conceded the fiscal constraints faced by the Government, he pressed for greater spending on the judicial system and implied that the CAD would be a more efficient manager of its resources.

“One solution is to do what has been done in Guyana, for example, and in Kenya,” he told reporters. “... The judiciary prepares its budget and the allocation comes directly from Parliament. It isn’t mediated through any Ministry of Justice.”

He noted, too, the ability of the judiciary in Guyana to “buy their own land and build their own courts”.

“In other words, they are in the business of buying and developing court infrastructure,” he said.

For the 2024-25 fiscal year, the Government budgeted approximately $4 billion for the law courts, or a quarter of the projected recurrent spending by the justice ministry. However, available data suggests that less than $250 million was earmarked for big capital projects.

This appears to be part of the basis of Justice Minister Chuck’s disinclination to embrace Justice Sykes’ proposal – that too little money is available.

“If it were a situation where there was adequate money available and they don’t have to compete within executives for whether you get courthouses, prisons, hospitals or schools, there wouldn’t be a problem,” the minister said. “But, in a situation where there are very little funds to spend on capital projects, I’m not too sure that is what the chief justice or judiciary should really be engaged in.”

The other part of the conundrum from Mr Chuck’s perspective, therefore, is that the CAD has its priorities mixed up.

Nothing articulated by the justice minister thus far is a compelling argument for not giving the judiciary full control of its budget. If that happens and Justice Sykes and his team mess up, the public would know who is to blame.

This leads to the matter of funding models for the judiciary. The government is wary of establishing special funds, but a special arrangement for the courts would be different, given the judiciary’s place as an independent and separate arm of the State, which the executives should be seen to hold and treat as such.

At the CCJ, Caribbean governments seeded a US$100-million trust, the profits from which finance the court. Jamaica might consider doing the same, raising the initial outlay from borrowings and the securitisation of assets, similar to what it recently did with cash flows from the Norman Manley International Airport.