20 Sep 2013

The judiciary–a stray dog?

In his address at the opening of the 2014 law term, Chief Justice Ivor Archie made several suggestions, some of which were jumped upon by the public and thereafter throttled to death. I refer of course, to his suggestions of trials without jury and the decriminalisation of marijuana.

The less discerning would perhaps see these as the most obvious and public-affecting news. But in his speech the CJ hinted at a more disquieting situation that is more worrisome, not only for the length of time it has been ongoing but also for the impact it has upon the dispensation of justice to one and all.

I refer of course, to the funding allocated to the judiciary on an annual basis.

Archie’s words: “A critical issue for which the Judiciary has remained vigilant has been the fundamental basis for inspiring public trust and confidence – the separation of powers and judicial independence” left me with the usual unease I experience every year.

I wonder, not for the first time, how a judiciary can be truly independent if the finances are squeezed at the neck by the administration, controlled of course by the legislative Parliament, via the Cabinet.

One only has to remember Patrick Manning and his mere pittance of $42.5 M allocated to the judiciary in 2009, a direct attempt to ‘muzzle’ the judiciary. Never mind that the request to pay salaries and other expenses was for $349 M.

Essentially, every year the judiciary is strangled for the want of funds, making it dependant on the administrative arm of the State. This is completely against one of the fundamental principles espoused in the rule of law (a term conveniently bandied about by Moonilal, Rambachan et al when it suits them) as postulated by Dicey, Unger, Raz and lately Tom Bingham in his excellent book, “The Rule of Law”.

If a judiciary is dependent on the administration financially, then it can never be truly independent, hence in the UK, where the judiciary is the most mature (oldest) in the free world, the finances are paid out of the Consolidated Fund.

“Certain expenditure is by law charged directly to the Consolidated Fund and is not subject to Parliament's annual budget process, ensuring a degree of independence of the government. Services funded in this way are known as Consolidated Fund Services and include judges' salaries,... In the case of the judges, this is to ensure the judicial independence introduced by the Act of Settlement 1701.”

I point out that this procedure is followed by countries such as Ghana, Kenya, Mauritius etc… and therefore no reason can be put forward why it should not be implemented in Trinidad and Tobago. Lack of political will is no excuse.

Perhaps it is time that the relevant change is made and the judiciary stops begging every year for the scraps fed to it by the central government. The judiciary is not a stray dog.