ADDRESS BY THE HONOURABLE THE CHIEF JUSTICE, MR. JUSTICE IVOR ARCHIE O.R.T.T. ON THE OCCASION OF THE OPENING OF THE 2014-2015 LAW TERM 16TH SEPTEMBER 2014 Your Excellency Mr. Anthony Thomas Aquinas Carmona President of the Republic of Trinidad and Tobago The Honourable Kamla Persad-Bissessar, S.C. Prime Minister of the Republic of Trinidad and Tobago. Senator Timothy Hamel-Smith, President of the Senate The Honourable Wade Mark, Speaker of the House of Representatives and Mrs Mark Senator the Honourable Anand Ramlogan, Attorney General Senator The Honourable Emmanuel George, Minister of Justice The Honourable Prakash Ramdar, Minister of Legal Affairs Other Members of the Cabinet of the Republic of Trinidad and Tobago The Honourable Dr. Keith Rowley, Leader of the Opposition and Mrs Rowley Members of the Diplomatic Corps The Right Honourable Sir Charles Denis Byron, President of the Caribbean Court of Justice, and Lady Byron Honourable Justices of Appeal and Judges and Masters of the Supreme Court of Trinidad and Tobago Heads of Religious Bodies Chairpersons and Members of Superior Courts of Record 2 Members of Parliament Judges of the Caribbean Court of Justice Members of the Legal Fraternity, the business sector, religious organisations and civil society Other specially invited guests Members of the Media Distinguished ladies and gentlemen all. First of all I would like to begin by expressing my heartfelt thanks to everyone who has contributed to making today’s proceedings a success. I should begin with Father Clyde Harvey who so aptly captured the vision that underlies this year’s thematic focus and, as is his habit, gave us much food for thought and action. As usual, the IRO assisted us in settling and delivering the prayers and petitions and I would like to acknowledge with gratitude the representatives of every faith organization that participated. May I also take the opportunity to thank Bishop Berkeley for once more graciously allowing us the use of the Cathedral Church of the Holy Trinity to hold the service. In their usual competent and professional manner, the defence force detachment has brought pomp, ceremony and an undeniable luster to our celebrations and we thank you for that. Finally, to you our special guests, without whom this occasion would be far less meaningful, thank you for the privilege of your presence. That you considered it important enough to set aside a big part of your day to be with us means a lot. 3 I cannot end the greetings without saying a special word of welcome to Madame Justice Gillian Lucky who has rejoined the bench as a permanent judge having previously had a one-year stint as a temporary judge. She has had a very distinguished career at the bar and has already established the fact that she can be a very effective judge as well so we are delighted to receive her into the fold once more. Sadly, not all of our recent transitions have been so positive and although we have already marked it with a formal sitting, the memory of the passing of our brother Guy Courtenay Hannays is still fresh and painful. Once more we extend our condolences and prayers to his wife Joanne, his daughter and the rest of the family. Our Theme for 2014 - 2015 For the next hour or so, I propose to report on some traditional measures of performance achieved during the past year but also to take the conversation into our perception of performance as it relates to relevance and effectiveness and finally to suggest some fundamental reforms that, in my view are necessary as a platform for truly effective and innovative transformation. Consonant with the established long-term vision of the judiciary, this year our strategic focus has been encapsulated in the theme “Reframing Performance through Innovation”. It addresses the need to maintain high levels of excellence and productivity while responding creatively both to old problems and rapidly changing circumstances. We consider it to be important for the judiciary, while our relatively young democracy is in the state of what I call “recreative” flux necessary for development and self-definition, to hold the center. 4 In that regard I believe that we have turned in a solid performance this past year, not without its challenges, but devoid of any major upheaval. It is important for us to give a statistical account of our performance so that you know what we are doing with our time and your money, but I trust that we will have discharged that duty more fully in the detailed annual report which should be available in electronic form next week and in print by the beginning of October. I therefore propose to give only a brief snapshot during the course of this speech. Court of Appeal There was an increase in the number of High Court Civil and Criminal and Magisterial (Criminal) appeals filed, making a grand total of 557, which was up from 511 the previous year. The number of High Court Criminal Appeals disposed of more than doubled from 15 to 32 while there was a slight downtick in the Civil and Magisterial dispositions of which there were 197 and 155 respectively. Non-compliance matters accounted for another 54 there were 20 Family Court Appeals and one Petty Civil Appeal were disposed of as well. Of interest to the general public may be the fact that of the matters disposed of last year, 55.6% were less than one year old and 74% less than two years old at the time of disposition. In keeping with our undertaking not to have any judgments outstanding for more than 6 months at the end of the Law Term, a concerted effort was made. I am happy to report that there were only 2 judgments outstanding for more than 6 months and they will be delivered before the end of 2014. High Court Criminal The picture here is somewhat grimmer and for all of the reasons that I have been at pains to articulate in previous years. We had almost exactly the same number of trials although the fall in dispositions from 91 to 83 is accounted for by the fact of fewer guilty pleas. This is in the face of 259 new indictments being filed. What this suggests is 5 that we are at the limit of our capacity if we choose to approach criminal trial procedure in the way that has become customary. We simply cannot go on this way! I continue to plead for serious consideration of whether the system of trial by jury should be retained at least in its present form, what is clear to me is that it cannot work as currently deployed. Of course I will always continue to question the need for any form of preliminary enquiry process outside of the High Court in which the matter is to be tried. I am pleased to report, however, that there are some positive developments on the horizon, which, if pursued to completion and full execution, can be of tremendous value. As we speak, a new and improved plea bargaining bill is being circulated for comment, and the Rules Committee is considering draft Criminal Procedure Rules that are intended to impose some structure and discipline on the case management process prior to and during trial. Both of these reforms I hasten to add, will require the cooperation of the prosecution and the defence bar since, for the time being, effective sanctions for non-compliance are limited. I have no apology for directly addressing those attorneys who continue to waste time do not insist that the prosecution call every witness in person knowing that they have no cross examination but hoping perhaps that something fortuitous will turn up. It is not clever; it is just bad lawyering. Moreover, it is wasteful of judicial time and resources, disrespectful to witnesses and jurors, irresponsible and immoral! Finally in the area of criminal procedure reform, I would urge a rapid introduction of videotaped caution interviews. It has had a dramatic effect on delay and the number of voir dires in other Caribbean jurisdictions. As has been pointed out before, voir dires occupy a considerable amount of trial time. Video taping of interviews also serves to protect the rights of persons in custody by ensuring that 6 proper protocols are followed. This results in fewer challenges at the trial stage. Since the passage of enabling legislation in St. Vincent and the Grenadines, St. Kitts and Nevis and Dominica in 2012 and 2013, there have been almost 400 such interviews in those 3 territories combined. To date there have been no successful challenges to any confession and significantly, Dominica and St. Vincent report no accusations of police mistreatment of any sort. As expected, Court delays have also been significantly reduced. High Court Civil Turning now to High Court Civil, new filings fell from 5230 in 2012-2013 to 4857 last year, while disposals fell from 5245 to 4407 (a 16% decrease). This also represents a fall off in the disposition to filing ratio from 1.0 to 0.9. As I had predicted, the irresistible arithmetic has caught up with us. There are only 24 hours in any given day and one cannot hear cases and write judgments simultaneously. Judges have really taken to heart the admonition to hear and determine cases with expedition. Of the CPR matters disposed of last year 61% were disposed of within 1 year of filing and a total of 81% in under 2 years. I mentioned earlier the challenge we set ourselves to have no judgments outstanding for more than 6 months at the completion of the law term. There has been a herculean effort on the part of the bench and while we were not 100% successful, I want to commend those honourable judges and their teams for their tremendous effort. There were 15 judgments outstanding for more than 6 months as of 31st July, a fraction of 1% of the total disposed of. But we want to do better and we believe we have a way to do it. You may recall that last year I spoke about an expanded ADR pilot project aimed at early intervention in the hope of disposing of matters where possible and appropriate, without a trial. Well, as promised, the project has been completed and the results and analysis are in. As anticipated, there was a very satisfactory settlement rate. Of the 7 matters that went through the whole process, 56% were settled outright and a further 11% were partially settled. 98% of participants reported that they would try mediation again. While there was a more modest settlement rate of 31% at the settlement conferences, a further 11% settled before trial, no doubt influenced by the narrowing and/or clarification of issues achieved during that process. Parties overwhelmingly reported the process to be helpful. This has given us the confidence, with the promised support of the Bar to make court annexed mediation and settlement conferencing an integral part of our civil case management process. To this end a draft amendment to the CPR is also now before the Rules Committee which, if agreed, is expected to come into force early in 2015 after appropriate sensitization and training of the Judiciary and the Bar. With concurrent changes in criminal practice and procedure which we also expect to be implemented in 2015, we can anticipate a transformed litigation landscape that, as far as the judiciary’s vision is concerned, would merely be the springboard for real innovation and not its culmination. Matrimonial Turning to the matrimonial jurisdiction, marriages aren’t doing to well in Trinidad and Tobago. Last year 2824 new divorces were filed, down from 2922 the previous year but there were 1963 decrees nisi granted (up ever so slightly from 1958 the previous year) and 2260 decrees absolute. But at least they are getting out quickly, 93.3% within a year of filing. Probate In the probate division there were 3052 filings and 3288 dispositions. Magistracy 8 As usual, the Magistracy handled the major volume of the load so far as the criminal justice system is concerned. There were 125,166 matters filed and 83,822 matters disposed of, an overall disposal to filing ratio of 0.67. This does not bode well for the future as we appear to have reached the saturation point some time ago. In that regard I should inform the nation that the Criminal Procedure Rules being considered by the Rules Committee would also cover Magistrates’ Courts proceedings. The culture of adjournments must stop and while we invite all parties and stakeholders to co-operate as their timely inputs are critical to our processes, I expect that magistrates, duly trained and supported, will apply a firm hand and not cede control of the matters before them. You are our court users who often remind us that justice delayed is justice denied. That applies to both sides and all parties. In terms of a breakdown by district, Couva, San Fernando (Madinah Building), Arima and San Fernando (Old Court) were the top performers on the basis of disposition ratios, followed closely by Chaguanas. I cite this remarkable statistic because the latter three courts have been constrained to operate under very challenging conditions and yet have turned in very creditable performances. While in no way seeking to diminish the contributions of staff everywhere, I feel I should publicly acknowledge the efforts of the staff at these locations. It is no secret that some staff at San Fernando have unfortunately taken action that we feel is unnecessary and unjustified but I want to assure all judiciary staff and the people of Trinidad and Tobago that we will continue to work assiduously and within the law to address the problems that undoubtedly exist and we encourage staff and their representative union to work with us in the spirit of cooperation that we continue to embrace at this difficult time. Beyond Statistics 9 I have set out what I hope has been a useful synopsis of some aspects of our performance. But there is a more fundamental point to be made. It is true that the disposition of cases is a core function of the judiciary, but numbers of cases disposed of only tells a part of the performance story. We exist to provide a problem solving and dispute resolution service in a rapidly evolving environment. It follows that we must also evolve in order to retain relevance and public trust and confidence. The theme of this year’s address and annual report, which informs our approach for the coming year was therefore very deliberately chosen – “Reframing Performance Through Innovation”. Innovation does not mean doing what we have always done, faster. It includes doing something differently either because it is more effective (as opposed to merely efficient) or in response to a different environment or problem. It was Albert Einstein who observed that we are unlikely to solve any significant problems by using the systems and approaches that allowed them to develop in the first place! Unfortunately, much of the conversation on “reform” has focused on how to get “better” at what we have been doing rather than whether we ought to be doing it at all. In the process, we have failed fully to appreciate the impact of changes in society and developments in information and communications technology and social media on the way in which we think, acquire information, communicate and make decisions. In the information economy, the challenge is really abundance. This has several implications. First is the fact that, since information is no longer stored and retrievable only at specific locations and nearly all human knowledge is accessible with a keystroke, being educated is not about having information in your head which most others don’t 10 have, it is about the ability to synthesize and to use the available store of knowledge to solve real world problems. That means taking a serious look at our education system. Much of what we do is completely irrelevant to the modern working environment. With regard to systems, as any economist will tell you, innovation and improved productivity cannot take place without a concurrent process of creative destruction. Some processes and functions will have to disappear. In other words we have to stop doing things just because that is the way it has always been. That is the danger in a precedent bound profession like the law. That is why, I respectfully suggest, we are struggling with criminal justice reform. Moreover the market ultimately decides what value is to be placed on certain competencies based on scarcity, rather than some notion of inherent hierarchical importance. This is a fundamental insight that seems lost on us in the management of the human resource in the Public Sector and, in my respectful view, continues to hamper the development of the judiciary through the inability to populate certain key posts at realistic remuneration levels. At the moment, these are some of the management positions left unfilled largely or exclusively due to the inability to attract top talent by paying realistic salaries. Deputy Court Executive Administrator, Judiciary Security Manager, Family Court Manager, Human Resources Manager, Court Protocol and Information Manager, Judiciary Buildings, Plant and Equipment Manager, Court Archivist and Records Manager, Deputy Court Archivist and Records Manager, Senior Human Resource Analysts and Court Statistician. Other significant vacancies include Pension and Leave Officers and Systems Audit and Compliance. How can we effectively manage and pursue innovation in those circumstances? It is not enough to speak glibly about a knowledge-based economy without grasping its significance. The most valuable asset is human 11 capital. You pay me a salary because I rent you the intellectual capital I have accumulated. How does the nation value it? The total remuneration package of a high court judge including all allowances computed on a monthly basis adds up to about $81,000 per month. Nobody I know in this Court works a mere 40 hour week but let us proceed on that basis. That works out at $500 per hour. You need to have a minimum of 10 years’ call to be a judge. The schedule fee under the practice guide, for an advocate of 10 years’ experience is $2000 per hour. After hearing representations from the Bar, that is about to be raised to $2,300. My rate works out to a little over $600 per hour. Dare I be so bold as to compare myself to Senior Counsel who are due to be raised from $3,500 to $4,000? Need I say more? Or maybe I need to be more explicit. That is what we forgo at the moment with the only hope of some redress being a pension that would permit a decent standard of living. Exemption from a marginal income tax rate of 25% does not even come close to bridging the gap that currently exists. How is the judiciary expected to attract and retain top talent in those circumstances? Why all the wingeing when there is an attempt to improve terms and conditions including pensions for judges. Is that how we value the judiciary? We can do better than that! While we are talking about hiring judges, may I digress just a bit to talk about the process and criteria for hiring judges, which appears to be widely misunderstood? The current basic criteria for the appointment of judges were gazetted on April 13, 2000 and, while not exhaustive, include considerations of Professional Competence, Integrity, Temperament and Experience. Significantly the latter two categories are further subdivided to include, among other things, an assessment of the candidate’s Social Awareness, Understanding of People and Society and previous Public and Community Service. 12 Logically, of course, activism at the grassroots level, whether associated with an NGO or political party or otherwise may be relevant in that regard and is certainly not incompatible with subsequent judicial appointment. Indeed one of our recently retired judges was a former government senator and cabinet minister. What is not expected, for reasons that are obvious, is for persons to move directly from political office to the bench without a suitable cooling off period. Further, it is a widely held view that, as possessors of particular training and knowledge, experienced attorneys have a right and some would say an obligation to contribute to informed public debate on matters of general national interest. Indeed, that is one way in which maturity, social awareness and understanding of the society may be demonstrated. Judges do not just drop from the sky with blank minds. Like any other citizens they are entitled to vote and will no doubt have personal views on a variety of matters. What is expected of them is that once they assume office, they will be true to their oath and put aside any personal preferences in service of their duty to hear and determine matters impartially and in accordance with the law. Of course, they are also expected, once in office, to refrain from commenting otherwise than where it is necessary in their judgments, on matters of policy or political affairs so as to preserve public confidence in the independence and impartiality of the judiciary. The process of continuing education in the judiciary therefore includes regular training for all judicial officers on impartiality, specifically the detection and avoidance of internal bias. Ultimately, to be sure, the real test is in the quality of the reasons which judges are required to give for their decisions. As regards the selection process, applications are invited by way of public advertisement. Candidates are shortlisted based on their resumes. They are interviewed by the JLSC to determine their suitability for appointment. A detailed form is sent to the referees who 13 are requested to provide written assessments of the candidate in several areas including those pertinent to the gazetted criteria. The names of candidates who are successful at the stage of the interview and whose references are satisfactory are then submitted to the President of the Law Association for comment. It is expected that senior and responsible members of the bar who know something about the candidates will be canvassed and the President of the Law Association will then report to the Chief Justice whether any principled concerns or objections have been raised. I might add at this stage that in terms of the most recent appointment there were none. If there are no negative reports that cause the JLSC any significant concern then the candidates undergo psychometric testing and finally, a special branch security vetting which is intended to uncover any unsavoury or illegal activities or associations that would be incompatible with judicial office. It is only upon the satisfactory completion of all of this rigorous process that the JLSC would be prepared to recommend to His Excellency the President that an Instrument of appointment be issued. I hope this brief diversion will serve to clear up some of the misconceptions apparent in recent public comments. I return now to the implications of the information technology revolution. Another major implication of the abundance and accessibility of information is that it cannot be controlled. The fundamental insight which we can glean from the Arab Spring and observation of our own society is that nobody relies on official channels to acquire information and to make decisions because they don’t trust authority and they don’t need to rely on official sources to get information. This has real world implications for, among other things, the jury system. Jury contamination is not just about criminals making threats and offering inducements. How do we stop people doing their own online research. This is a real problem in many 14 jurisdictions, some of which have resorted to imprisoning jurors who ignore warnings to confine themselves to information emerging in the courtroom. How on earth could we effectively police that? They are not going to tell you if they’re doing it. And if there is one thing we know about human behavior it is that once you forbid something it arouses the curiosity of a significant proportion of people. I seriously doubt whether much of the existing systems that evolved when the internet was not even contemplated can survive the new environment. I cite this as merely one example of how the debate on criminal justice reform needs to be broadened and more nuanced and processes that served us well in the past have now become the problem. Thinking out of the box must be more than a cliché. The changing information technology landscape has also triggered evolutionary change in the way in which we regard information and our expectations in relation to secrecy, transparency and access. This of course has repercussions for many things from our recruitment processes to how we manage and manipulate information and how we manage people and processes through redefined roles and responsibilities. I have already alluded in the past to the fact that the whole case flow management process is really an information flow management process. Technology now allows us to store, access, retrieve and manipulate information in unprecedented ways. The real challenge is to tap into and unleash the reservoirs of creative potential that exist within our staff, our stakeholders and, to the extent that societal healing and restorative justice are a part of the vision, all our court users (see in that latter regard, the Drug Treatment Courts as an example). In other words, we have to reframe the concept of “performance”. One innovative approach towards achieving that objective was explored in November 2013 when staff members from every region and department of the judiciary, elected by their peers, joined 15 management, judicial officers and two dozen representatives from our stakeholder organisations such as the Ministry of Public Administration, the Prisons Service and Family Services for three days at the Judiciary Appreciative Inquiry Summit at the Hilton Hotel. For three days participants from every court, district and unit, including the Chief Justice and the Court Executive Administrator, were actively engaged in the self-exploratory process of: Discovery, Dreaming, Designing, Destiny. To my knowledge, this was the first time that Appreciative Inquiry had ever been used by a judicial organisation and, to our knowledge, it was also the first time this approach had ever been tried on a large scale in Trinidad & Tobago. This Appreciative Inquiry (AI) model was developed at the Weatherhead School of Management, Case Western Reserve University in Cleveland, Ohio. The methodology encouraged innovation and paid off handsomely since it generated considerable discussion, interest and enthusiasm. Participants shared their vision of the ideal Judiciary and focused on the steps required to reach that goal. The entire assembly then voted for the projects each member considered most important to contribute to the transformation of the institution. Out of this exercise, ten change teams were created and have been working on core areas all aimed at “identifying, sustaining, and strengthening the affirming qualities of the organization.” Some of the areas covered: • Child care • Closed HR and greater autonomy in Judiciary staffing • Continuous training and development • Electronic filing and electronic payments • Personalizing the Judiciary image 16 • Real-time accurate employee information • Staff welfare and appreciation • Establishing standardised court structures • Working conditions • Advancement of technology The participants’ level of commitment to the organisation and to each other, the outflowing of creativity in the manifestations of their dreams for the institution and the practical, organised, systematic structuring of plans for the future to make these dreams a reality astounded and energised me and all those present. There is no shortage of innovative potential in the organization and across the public service; we need to find ways to unleash its power. In the new Law Term, the change teams created at the Summit will continue their work assisted by training from facilitators on how to handle the change management process. Social media In the area of social media, we are aware that the way in which people source information about the world and matters of interest to them has changed. Our methods of educating the public and making our services and processes transparent and accessible as part of our commitment to accountability, relevance and attracting public trust and confidence, must change. Plans are underway to establish the Judiciary’s social media presence. In the coming year enabling technology will be utilised to create a presence on facebook, twitter, instagram and linked in. This will be supported by the Judiciary’s social media policy which will address content management, privacy and overall brand management to ensure the integrity of the messages 17 provided through the media. Research indicates an absence regionally of social media presence by Caribbean judiciaries. This will be an innovative introduction to the regional landscape. Solution Oriented Courts Many of our ongoing initiatives reflect the commitment to relevant and innovative change. The introduction of Drug Treatment and Youth Drug Treatment courts and the implementation of court annexed mediation as a part of our normal process are indicators of the Judiciary’s willingness to embrace change in a reflective and productive way in order to ensure that all the citizens of Trinidad and Tobago receive justice in a timely and life-giving manner. With regard to the Drug Treatment Court, I am proud to announce that the first graduation ceremony was held in July for participants who successfully completed the program. While the numbers are still modest, the true impact of programs such as this is measured in the transformation wrought in the lives of participants who, for the first time, begin to tap into their hitherto dormant potential. The valedictorian of the class spoke eloquently for 20 minutes without notes. Here was a gentleman who after 6 decades of life, the majority of which had been spent on the streets and in the grip of drug dependency, not only tested drug free for the entire program but is now enrolled in a counselling course at the UWI and is getting straight A’s. He is already giving back by way of support and encouragement to current participants and fellow alumni. In June, the Steering Committee hosted a sensitisation workshop for Magistrates, Clerks of the Peace, probation officers, police officers and other agencies that will support the operation of the Tunapuna DTC. A further sensitisation workshop was undertaken in July 2014, on the development and implementation of Juvenile DTC’s (JDTC’s). Participants included teams from Jamaica, Barbados and Trinidad 18 and Tobago. The workshop was facilitated by the Juvenile Drug Treatment Court team from Dade County, Miami. These opportunities were all made possible due to the MOU which was signed between the Ministry of National Security and CICAD in September 2012 and expires this month. Efforts are being made to have it renewed. As the Steering Committee continues to plan for the next year, there are a number of priority areas for implementation. Among them are: • The start up of the Tunapuna DTC; • Finalisation and approval of the Juvenile Drug Treatment Court policy document; • Increased public sensitisation on the DTC – including Sensitisation of the Executive Council of the Tobago House of Assembly, and the Public Health Sector; • Formation of an Alumni Association to support the graduates; • Ongoing training and capacity building opportunities; • Support for our regional Member States in the establishment of their Drug Treatment Courts; and • Discussion on the formation of an Association of Caribbean Drug Treatment Courts. Trinidad and Tobago Judicial Education Institute I turn now to the Trinidad and Tobago Judicial Education Institute. As you might well imagine, none of this innovative and transformative work could be done without sustained investment in our human capital by way of continuing education. The TTJEI continues to restructure its training programmes to bring the Institute in line with best practice internationally in Judicial Education. To this end, the focus of the Institute has moved towards training that is directed, 19 informed and delivered by local faculty for local officers. We are confident that we can call upon our own depth of knowledge, our own lived experience and our own accumulated wisdom. An expansion of the activities of the Institute occurred first in November 2013 when the TTJEI assumed responsibility for the organization and implementation of the Appreciative Inquiry Summit. In April 2014 for the first time, senior Case Management Officers joined the Registrars for a residential weekend retreat to discuss ways to improve Case Management processes and procedures. The response of these staff members to this training has encouraged the Board of the TTJEI to endorse further outreach to staff in the Judiciary. Another noteworthy arrival on the JEI calendar was the Orientation Programme for new judges carried out in September 2013. For the first time, recently appointed judges were given the opportunity to interact with their more senior colleagues to discuss issues such as Ethics, Case Management, Team Management and Court Technology. It is expected that this programme will be repeated in the next Law Term and be expanded to include other judicial officers such as Magistrates and Registrars. Training for Management officers has occupied the attention of the Institute for much of the year. Apart from the continuation of “Difficult Conversations” workshops and a series on Time Management, the JEI also provided a small group of Senior Managers with a series of workshops in Leadership conducted by a team from the Weatherhead School of Management out of Case Western Reserve University in Cleveland, Ohio. These workshops included sessions on emotional intelligence, mindfulness and creativity. It is expected that the Weatherhead team will continue to offer their services to Judiciary staff, focusing in particular on the change management teams created at the Appreciative Inquiry Summit. 20 In an effort to move forward on its goal of becoming a centre of Judicial Education nationally and regionally, the construction and refurbishing of a Training Centre on the ground floor of the Judiciary Administration Building on Duke Street has been completed. It is a fully equipped, multi-media facility with the capacity to train fifty persons in one session through the use of state-of-the-art equipment and training methods and is already in use. Earlier this month, with the assistance of a distinguished team from the University College London Judicial Institute, the only academic institution in the Commonwealth devoted to evidence based research and teaching on judiciaries and judicial processes, twenty-four persons from the Judiciary of Trinidad and Tobago including key non-judicial offices received training as trainers themselves with the expectation that they will, individually and in teams, develop curricula, conduct workshops, seminars and lectures for their colleagues and all staff of the organization. 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 21 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 Trinidad and Tobago’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 22 are submitted to the Ministry of Finance as line items, which are then authorized 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 Trinidad and Tobago” is zero, if I were the type of person who would permit myself, I would be driven to despair. 23 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 Trinidad and Tobago. Because the Judiciary has been a de facto pillar of stability in this society from even before independence, it goes without saying that politicians, Members of Parliament, 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 Trinidad and Tobago, 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 24 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/ inter-Ministerial 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 Program 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 25 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-Mn, and the amount of $3.12-Mn was requested in our DP Estimates for 2015, however only $1.5-Mn 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. 26 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% 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-Mn 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 27 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 cant spend because our efforts are frustrated. Then we are penalized 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 reprioritize, 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 28 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 Program, we requested $237 million for fiscal 2015, we are being granted just over 1/6 of that sum or $42 million, which is roughly ½ of 1% of the $8.2 billion set aside nationally under Development Program 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 3% to 4% 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 ½ of 1% 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 gotten 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 1/3 of 1% 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 29 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 4 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 30 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 you’s 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, Trinidad and Tobago, let’s fix this now. I done talk! This court now stands adjourned.
Posted on: Tue, 16 Sep 2014 19:07:23 +0000
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