Your article: ‘Audit: Judicial
administration did not obey law’
I appreciate your newspaper’s
continuing interest in the administration of justice, given that the media play
an important role in the process of safeguarding justice in any community.
However, on this occasion, I write
to refute the unfortunate allegations carried in the title of the
above-referenced article published in your newspaper on Wednesday, 28 July,
2010. Your readers will understand the true position against the following
background to the Public Management and Finance Law.
When the law was first passed in
2001, it required the Judicial Administration, including the judiciary, like
every other Government agency, to enter into a performance agreement with
Cabinet (then Executive Council). That proposal would have required, among
other stipulations, that the Courts’ budget be agreed by Cabinet for the
delivery of specified outputs and that Cabinet would have the power to review
those outputs and be able to decide whether they are met adequately.
If Cabinet felt those outputs were
not met, then the Courts’ budget could have been withheld or reduced.
The obvious potential that such a
proposal had for, at the least, the appearance of interference with the
independent operations of the Courts and the administration of justice led the
Chief Justice to propose changes to the Law, and, consequently, certain changes
were made. The result was that the law, as finally passed, exempted the
Judiciary from its operations in these terms as set out in Section 80(3):
“This Law shall apply to the
judicial administration except that the outputs and the details of the
ownership performance specified in the annual budget statement of the judicial
administration shall be specified so as to ensure that they do not impinge on
the constitutional functions or constitutional independence of the judiciary.”
Thus, the law is intended to allow
the judiciary, with the support of Court staff, to administer justice on a case-by-case
basis according to the merits of each case, without having to consider whether
the output of judicial and administrative services may be regarded as justifying
the budget that is allocated for the Courts.
Any other application of the law
that could interfere with the due and proper administration of justice would be
unconstitutional and wrong.
However, the question remained: How
could the law be made to apply to the outputs of the administrative staff of
the Courts for the measurement of their performance against the share of the
Courts’ budget allocated to them as an entity?
This was never to be an easy
exercise because the function of the administrative staff of the Courts is to
support the work of the judiciary in the fulfilment of the proper administration
of justice. So, for example, just as it
is difficult, if not impossible, to predict the outputs of the judges in terms
of how many cases they may try or how many they may otherwise resolve, it is
difficult to predict or measure what the output of the administrative staff may
be in their endeavour to support the judges in that regard. Yet, it is this
notion of an “output” that is the basic measure by which budgetary allocations
are made and against which performance is measured under the law.
This difficulty having been
discussed with Government (through the office of the financial secretary), the
judicial administration has over the past nine years nonetheless endeavoured to
comply with the law by providing the information required in as relevant a
manner as possible.
But, bearing in mind section 80(3)
of the law as set out above, it was never to be expected that every field of
information that may be typically required for the measurement of the
performance criteria could be provided.
It is in this context that the
Department of Internal Audit made its report and it is in this context that the
judicial administration has endeavoured to continue to be as fulsome as
possible in the information it can provide for the purposes of justifying its
annual budget allocation.
This is what the audit report
“Overall Audit Conclusion
Based on our review of the
management systems within the judicial administration, internal audit concludes
that the agency output reporting systems require some improvements in order to
provide reasonable assurance that the agency is meeting the intended
objectives. Whilst the output specifications and arrangement have been properly
established, the agency now has to establish appropriate systems to accurately report
its output performance. The implementation of the audit recommendations would
assist the agency towards establishing an effective internal control and output
It is important that your readers
understand the purely formal nature of the appraisal and that there is
absolutely no basis for apprehending that the law is being flouted or that
there is any impropriety in the management of the Courts’ financial resources.
This concern is rather like that
other issue – the sole concern – that was raised in the context of the recent
legal aid audit. That matter actually relates only to the manner in which
financial data may be accessed or presented and does not in any sense denote a
concern that financial data either do not exist or exist in an inaccurate or
Regrettably, I note that,
notwithstanding my letter of explanation, which the Compass published in a
subsequent edition, this latest article also again sought to raise the same
concerns about the legal aid system, without regard to that information.
I trust it is now clear that it is
simply unfounded to say that the judicial administration has failed to obey the