The Courts are more than mere service providers

Opinion about what matters in the administration of justice varies. I recently attended the Third Asia Pacific Courts Conference in Shanghai. We were addressed most imaginatively by Professor Jim Dator of the University of Hawaii. The Professor, a political scientist, referred to a survey he conducted of the Hawaii judiciary, in which the Judges were asked to assign, anonymously, their priorities in relation to judicial concerns. As the Professor put it:

"After many hours of discussion and ranking, we finally came up with the number one priority of the Hawaii State Judiciary. It was parking. That was the number one concern of the group. Not "justice". Not "a speedy trial". Not even "efficiency". None of the things that I expected might be their top priority. Instead, the main concern of the Hawaii Judiciary at that time was that each employee have a convenient parking space for her car."

There are, as he went on to add, many dimensions to the judiciary. I propose therefore to do no more than advance a few of my own views, broadly surveying what I see of the path forward.

I first want to address the way that the courts are perceived. There is tension these days between the traditional approach to the courts, as the third arm of Government, and a perception among some that courts are mere service providers. It is important that we perform efficiently, that our backlogs be monitored and eliminated where possible, that our judgments be delivered expeditiously, that we not make too many mistakes. But important as those factors are, the real picture has a much deeper perspective.

Some modern trends may be confusing the public about what we really do in the courts. One of the risks of even the current penchant for alternative dispute resolution, for example - mechanisms which I should say I warmly embrace - is that it may deflect attention from the court’s traditional role.

Courts are not just another dispute resolution mechanism. They operate quite differently, for example, from mediation and conciliation. For a start, the courts operate in public. Courts hear both sides together. Judicial officers give reasons for their decisions. If bare efficiency were the only consideration, disputes could be resolved much more satisfactorily than in the courts. Take the criminal arena. If the only consideration were to punish the guilty and acquit the innocent, as quickly and cheaply as possible, no doubt a bureaucrat could do it, as in some other parts of the world.

Courts ultimately stand between citizen and State: which immediately, of course, raises the anomaly of financial support from a department of State which also supports the Director of Public Prosecutions and the Crown Solicitor. I offer no solution to that - I mention it merely to point up the complexity of our situation - a complexity not readily resolved by fashionable catch-cries based on notions of bare efficiency.

Speaking of bare efficiency raises another issue of current concern: the problem of applying to the courts so-called Treasury "output budgeting" model - determining what funds should be provided by reference to the amount of work turned out, increases in "productivity" and the like, rather than by considering the objectives we must fulfil.

Courts must be given the resources adequate to enable them to do only one thing, to deliver justice according to law: only one thing, but something of massive proportions and significance, an indispensable goal of civilized society. And providing the resources necessary for that, one may observe, is not limited to financing the courts directly - it includes proper funding outside the courts, such as securing an adequate level of legal aid, presently lacking.

Cost driven exercises, economic rationalism, often ignore the true cost to citizens. Reducing or maintaining the level of an item of expense in a budget may produce an encouraging financial appearance. In reality, of course, it may often do no more than shift an item from one department’s budget to another’s. That aside, however, reducing services by not properly funding them may lead to a more intangible, serious cost to society - and for which, interestingly enough, no bureaucrat will likely be held to account.

The problem may sometimes be that unless something can be valued in direct financial terms, the temptation is to jettison or ignore it. The cost associated with human anxiety over court delays is a good example. It is the courts which are called to account for such things. But courts can only act as far as financial resources allow. Governments must come to think more broadly about funding the justice system. Current Treasury models may be simply inappropriate.

In short, courts are not mere service providers. The worth of the courts is not truly gauged by analysis of outputs alone, useful though that may be. Courts operate at a much more fulsome level. They are indeed an "arm of Government", of indispensable worth to civilized society. They are not just a piece of bureaucracy, but an overwhelmingly significant public organ. They inspire and support the people, guarantee the delivery of justice according to law, and act, as it has been put, as "a bulwark against prejudice and unreason".

A drive for efficiency is important, but a focus on efficiency cannot be allowed to obscure the broader significance of this third arm of Government we are privileged to constitute. Courts are a vital constituent of the essential fabric of the State. And I believe it is critical that we do our best to remind the public of this, to restore a proper perception of our role.