'Not merely a department of state’: new Commonwealth statement of principles on funding the judiciary

An important new set of principles on the proper financing and resourcing of the judiciary has been issued by the Commonwealth Magistrates’ and Judges’ Association (CMJA). The principles, issued this month, are likely to prove just as influential as the Commonwealth (Latimer House) principles dealing with the accountability of and relationship between the three branches of government. They are a timely contribution to the debate on judicial funding, given that the judiciary in a number of African countries is struggling to obtain the funding needed – and the number of judges required.

Read the Principles

The Commonwealth Magistrates’ and Judges’ Association (CMJA) has been concerned for some time about the funding of the judiciary. Now it has issued a set of six principles that outline the standards that must be met.

In a statement released with the new principles, the Secretary General of the CMJA, Dr Karen Brewer, said the principles took on a particular significance given the Covid-19 pandemic and the global economic downturn this has caused.

She noted that most courts in Commonwealth countries are continuing to work through the crisis. They were providing essential services in ‘upholding the rule of law, human rights and access to justice as well as adapting to restricted circumstances.’

Standards

Brewer said the CMJA hoped the principles would help ensure that the funding and resourcing of the judiciary was maintained at a level that enabled the courts to continue functioning ‘to the highest of standards.’

The preamble to the principles notes the importance of an ‘institutionally independent judiciary’ and that adequate financial resources as well as ‘autonomy in finance and administration’ were essential to institutional independence.

‘The proper funding and repair of the court estate, the provision of adequate computer systems and up to date software for courts and court users’, as well as sufficient judicial officers and court staff, were all essential for access to justice, the rule of law and for judicial independence.

Indicators

While institutions had to be accountable for funding allocated, the CMJA was strongly opposed to the misuse of measures like cost control mechanisms and performance indicators that assess the number of cases cleared. In particular, these should not influence the allocation of funding.  

The CMJA ‘has been concerned with the funding of the judiciary for many years,’ and she said it was imperative that adequate resources were allocated to the judiciary to safeguard its independence, integrity and accountability. There might be reasons for the executive branch of government to impose budgetary constraints. However, the judiciary ‘must not be treated like a department of state, but as the third arm of democracy.’

The principles relate to independence, adequate resources, the role of the judiciary in the budgetary process, remuneration, training, and access to justice along with public confidence in an independent judiciary.

Personnel

On independence, the principles state that the main responsibility for court administration, supervision and disciplinary control of administrative personnel and support staff ‘must vest in the judiciary’ or in a body with strong judicial representation.

Each state should allocate adequate resources, facilities and equipment to the courts so that they may function in accordance with international standards. The judiciary should have the authority, ‘independent of the other branches of power,' to prioritise the allocation of its resources. Courts should be financed in a ‘stable way’ and not subject to political fluctuation.

The courts themselves, or a competent authority working in collaboration with the courts, should prepare the budget of the judiciary. If the rule of law is to be maintained, ‘long-term financial stability in the funding of the judiciary’ was required.

Remuneration

Judges should be remunerated at an appropriate level given their professional responsibilities, their public duties and the dignity of their office. They should be paid enough to ‘shield’ them from ‘inducements aimed at influencing their decisions.’

Budgets for the judiciary must include provision for judicial training so as to ensure high quality and prompt decisions.

Finally, no budgetary constraints should be imposed that were intended to restrict public access to justice. ‘No increase in court fees should disenfranchise the public’s access to justice.’ ‘The public must be confident in the independence and integrity of the judiciary and if they are aware that adequate resources are not being allocated, there is a risk that the judiciary will be seen as a pawn of the state.’