THE NEXT 50 YEARS: Guilty - Jamaica's courts need a makeover

Vaughn Graham, Contributor

A DISCUSSION on court infrastructure over the last 50 years is inextricably linked with Jamaica's colonial history and eventual transition to a sovereign state. This is because the transition from colonialism to Independence was anchored within a need to establish indigenous rule-of-law institutions, and court infrastructure is partly symbolic of these institutions.

The story of pre-independent Jamaica 1494-1962 is largely one of conquest, human conflict, struggle, domination, and the eventual survival of an indigenous black identity based on class stratification. Illustratively, it was the 1865 Morant Bay Rebellion that created the need for Crown Colony Government a year later.

Crown Colony replaced Assembly Government and allowed for the establishment of a Legislative Council centred around a governor. This arrangement was thought to be a buffer for class-based conflict between the whites and a way of easing tensions among the blacks as a strategy for mitigating another rebellion. In the same year, the Jamaica Constabulary Force was formed, further reinforcing the reliance on control and domination as the method of enforcing the rule of law. Therefore, from this time, concerns about rule-of-law institutions were central to the formation and administration of public institutions.

Readings of Jamaica's political history during the period reveal that classism affected rule-of-law institution building. The rule of law was enforced in a lopsided manner, and so in the minds of the subservient black population, courthouses and prisons symbolised a judgment hall rather than a structure of fairness, conflict resolution, and perhaps rehabilitation. By the time a home-grown middle-class of political leadership mobilised and polarised the lower-working class and peasantry between 1944 and 1962, the vestiges of class differentiation persisted throughout the society. Notwithstanding, with Independence came the normative requirement to "Stand up for Justice, Brotherhood and Peace". If maintaining court infrastructure as a symbol of equitable rule-of-law institutions became a post-1962 vehicle through which to achieve this, then these normative aspirations arguably remain elusive.

Currently, there are deficiencies in the institutional structure which oversees court infrastructure, and this is the source of the problems today. The Ministry of Justice indicates that currently, there are no more than 45 courthouses serving Jamaica since 1962.

At Independence, Jamaica had fully embraced the Westminster-Whitehall structure of government. This means that among other things, a central-government ministry, headed by a portfolio minister, would normally have responsibilities for court infrastructure. In other words, a person who may only have political tenure of five years normally has final policymaking authority over decisions relating to court buildings and operations, not the chief justice or the president of the Court of Appeal - more permanent and constitutional fixtures.

So while there is separation of powers constitutionally in Jamaica, operationally, it can be said that the political executive can influence the function of the judiciary in this manner.

In recent times, there have been developments within the institutional structure which may intimate a paradigm shift going forward. Up until 2001, a minister of national security and justice had responsibilities for court infrastructure. This was replaced by a minister of justice and attorney general up until 2011. At present, there is Court Management Services (CMS), which is tasked with managing the operations and affairs of the courts.

It is not clear if this new entity is now operating optimally, or if it will assume responsibilities for court infrastructure. What is clear, though, is that its principal executive officer reports directly to the chief justice, and that it is operationally separate from the Ministry of Justice (MOJ).

Notwithstanding, if the Estimates of Expenditure are anything to go by, then Jamaica may have to accept the current state of its court infrastructure, at least for another fiscal year.

Funding 'Justice'

An examination of the funding resources of the MOJ provides insights into plans for court infrastructure going forward. This is because according to the 2012-2013 Estimates of Expenditure, the MOJ - not the CMS - still retains expenditure control over court buildings and major capital expenditure. For the fiscal year, it is estimated that $430 million will be needed to maintain these courthouses and other judicial residences. This is down from $459.5 million, which was approved for this purpose in the previous year. During fiscal year 2011-2012, additional support of another $250 million was provided, indicating the dire need for more funds to do the job.

Interestingly, it is said that the MOJ engaged in intense advocacy and lobbying to the Ministry of Finance to get these funds as the budget ceilings which were previously set functioned more like collapsing scaffolding. This is not surprising if the reader considers the previous budgetary trends in comparison with its peer ministry, the Ministry of
National Security (MNS).

Nominal comparison shows that
for fiscal years 2004-2005 to 2010-2011, the MNS was consistently
allocated more resources for all its departments and external agencies
than the MOJ. This period covers both PNP and JLP governments, so there
is no basis for politicisation of the issue.

In
fiscal year 2003-2004, the amount approved for the MNS was 765 per cent
that of the MOJ in nominal terms. By the 2009-2010 fiscal year, this
amassed to 1,236 per cent. This lopsidedness can easily be explained by
the MNS being larger than the MOJ. It also reveals that in Jamaica, what
is considered 'justice' is subsidiary to what is considered 'national
security', despite the local and global evidence showing that the two
function in unison and need to be resourced in tandem. How else then can
we explain the present persistence to further enlarge 'national
security' at the expense of 'justice?'

When
allocations to just the ministries' central headquarters are examined in
relative terms, the claim of lopsided prioritisation finds even greater
purchase. The headquarter allocations are directed to areas such as
policy and various corporate services, not court management or
law-enforcement entities. In the 2003-2004 Budget, the MOJ was approved
an amount equivalent to 10 per cent the amount approved for the MNS. By
the 2009-2010 allocation, this was reduced to 7 per cent, the lowest
over the period. Further, from the 2003-2004 to 2009-2010 fiscal years,
budgetary allocation to the MNS and all its external agencies increased
by 179 per cent, and by 169 per cent for its headquarters alone -
effectively, more than doubling. For the similar period and levels, the
amounts for the MOJ are 73 per cent and 88 per cent,
respectively.

In the present 2012-2013 fiscal year, it
is estimated that 'national security policymaking' in the North Tower
of its headquarters will cost the MNS $245.8 million. Staff compensation
is an estimated 44.3 per cent of this amount. For the MOJ, 'justice
policymaking' in its South Tower headquarters is estimated to cost $29.6
million. Staff compensation is an estimated 56.4 per cent of this
amount.

What the foregoing nominal peer-budget
analysis has revealed is that not only is the MOJ significantly
under-resourced and remains in the shadow of the MNS, but the now
Ministry of Finance and Planning projects that the MOJ may be less
efficient in policymaking than the MNS for this fiscal
year.

It is not rocket science to surmise, then, that
if it is a policy of the MOJ to improve court infrastructure over this
period, Jamaica may be in for an episode of policy failure owing to lack
of funding. So, proposed plans to complete the construction of the
Morant Bay Courthouse, complete Phase I of Justice Square, and commence
work on Phase II, all within this fiscal year, may be pie in the
sky.

If the suggestion is made that the MOJ should
look to its international development partners for help rather than the
Consolidated Fund or Appropriations-In-Aid, then the picture will not
change. This is because its donors do not normally fund capital
expenditure. So even where they are currently funding specific justice
programmes, the MOJ will be required to put up an estimated $333.4
million in matching funds in this fiscal year alone - already 77.5 per
cent of the amount budgeted for the maintenance of courthouses and
judicial residences. My guess is that if a trade-off has to be made down
the road, these donor-funded justice programmes would get priority over
any large infrastructural project because of prior conditions normally
agreed to between a ministry and its donor partners that have to be
met.

Challenges and Prospects for
Planning

In my experience, the MOJ has tried to do all
it can to maintain court infrastructure and judicial residences since
2001. Today, the ministry faces pressing challenges. First, an
insufficient number of courtrooms in the system results in some sittings
having to be suspended to facilitate others. Second, the courthouses in
St Ann's Bay and Black River are housed in facilities rented from the
parish councils and are in a less than desirable condition. Third, it is
said the courthouse in Cedar Valley, St Thomas, has not been
operational since refurbishment simply because all roads leading to the
location are in poor condition. Fourth, the MOJ has significant
challenges getting land already owned by the State, and even where land
space is given freely to the MOJ, funding constraints prevent it from
commencing and sustaining any infrastructural
project.

The MOJ estimates that it will cost no less
than $800 million to build a permanent modern court facility, yet the
Ministry of Finance and Planning seems to estimate that the MOJ would
only need half this amount to do more. The court administrators and
clerks of court are, therefore, required to be creative geniuses in how
they roster and help conduct court sittings.

For its
part, the MOJ can only attempt to build temporary structures at a cost
of roughly $100 million per court, similar to the one in Morant
Bay.

So, with its plans to construct parish and
regional judicial complexes so as to accommodate various types of court
sittings, and to add more courtrooms to existing structures in May Pen
and Montego Bay, the MOJ seems to be handicapped by the keepers of the
Consolidated Fund and the parsimony of possible grant funding. Perhaps
bilateral assistance could be sought from non-traditional donors in Asia
or the Middle East - who would assume the sunken costs - and the MOJ,
or the CMS, would lease the facilities over the long term. This option
would have implications for independence and sovereignty, however. For
an independent country to not be able to own or maintain its rule-of-law
symbols is an unavoidable indictment on national
sovereignty.

We Want Independence but Can We Afford It
for Another 50 Years?

In planning for the next 50
years, Jamaica needs to rationalise the institutional structure of
managing court infrastructure and fund it aggressively. A determination
needs to be made whether either a minister of justice or the chief
justice is better able to manage court buildings. Interestingly, a
minister of national security has always been better able to make a case
for more funding for 'national security' capital expenditure than a
minister of justice merely by having a larger ministry, and one which is
concerned with crime.

Jamaica may be better served,
however, by lifting court-infrastructure management altogether from
political exigencies and influence. In the present circumstance, the
chief justice seems the most suitable and permanent fixture to whom this
responsibility should be entrusted.

More meaningful
philosophical questions need to be asked as there seems to be a chasm in
how Jamaica prioritises not only resources, but issues. To what extent
can the longstanding debate about the United Kingdom Privy Council being
replaced by a Caribbean Court of Justice be philosophically or
patriotically meaningful if the Jamaican state is unable to sustainably
maintain its own courthouses? It may be argued that cutting the
remaining vestiges of colonial adjudication from across the Atlantic
Ocean will be futile, and possibly more expensive, if Jamaica is unable
to show it can fund its own courts, let alone one that is anchored
elsewhere in the Caribbean Sea. Policymakers should know that some would
rather be lower-class and subservient labourers who can regularly pay
the neo-colonial fines imposed, rather than be of new upper-class landed
gentry yet unable to financially maintain freedom.

Vaughn Graham is a 2010 UK Commonwealth Scholarship award holder and is
writing as a doctoral candidate at the University of Birmingham, UK.