The Judiciary as a Corporate Entity
Issues of Information and the Civil Society
The Judiciary is a unified state court system under the administrative head; the Chief Justice of the country. As an organ of state the Judiciary still has to conform to government policy and the laws regulating the dissemination of information. Of importance, though, is that following the reform of the Judiciary after the promulgation of the constitution, the Judiciary now operates in terms of its drawn Strategic Plan 2007 - 12. One of the Key Strategic Focus Areas is to ensure that the judicial system remains technologically compliant - to facilitate, inter alia, online access of relevant information.
As an organisation, the Judiciary, operates, and has to survive, within two environments;
(1) The micro-environment, comprising of civil society as its consumers, the other stakeholders (which include the civil society) as its suppliers, and the other possible dispute handlers that can pose as competitors. The Micro-environment refers to the organisation itself. It is the environment in which the manager operates.
(2) There is the Macro-environment as well. It includes the economic (National and Global) circumstances, Social, Political, Technological circumstances. The Macro-Environment has an influence on the micro-environment both directly and indirectly through the market-environment.
These are some of the several management thoughts which will had major contributions in our movement, in 2006, from an emphasis on Strategic Planning to Strategic Management and finally to Strategic Intent; all these aspects received great attention from the leadership of the Judicial Sector, and that includes making the Judiciary visible by managing and disseminating accurate information to the public. It is without doubt that operationalising the above aspects will, in reality, be to their great advantage. However, the success of this vision can, and will, need dynamic and collaborative leadership, between the Judiciary and the Executive arms regarding the necessary financial assistance and also to ensure Good Corporate Governance.
The Organisation and its Stakeholders
It is imperative, for the Judiciary as an organisation, to recognise the importance of stakeholders and their rights. Communication with stakeholders is considered to be an important feature of corporate governance as indicating cooperation between stakeholders and corporations. The Judiciary, if for a moment it can be given the status of a corporation has a duty to present a balanced assessment of its position when reporting to stakeholders. Both positive and negative aspects of the activities of the company should be presented to give an open and transparent account thereof.
Most importantly it acknowledged that a minister other than the public entity's portfolio Minister ( the Minister of Justice and Constitutional Affairs), for example, the Minister for Finance have an interest in the work of the Judiciary as a public entity. Such a stakeholder Minister's interest may arise in a number of ways. The functions of the Judiciary may affect the stakeholder Minister's portfolio responsibilities or stakeholders, such as being engaged in a project that is co-funded by the stakeholder Minister’s portfolio
Apart from the above, stakeholder communication should consist of a discussion and interpretation of the business including: its main features; uncertainties in its environment; its financial structure and the factors relevant to an assessment of future prospects; and other significant items which may be relevant to a full appreciation of the business.
The discussion should go beyond a mere analysis of the results for the year. It should cover trends and changes, profit forecasts and future projections as well as information and events beyond the balance sheet date that are relevant to a full appreciation of the corporation's affairs.
The focus has been on improved transparency and disclosure so that stakeholder communication per se;
Independence of the Judiciary
The safety of the state is entirely dependent on an Independent Judiciary because it has the capacity and an obligation to promote and preserve the Rule of Law. The Rule of Law is a basic tenet of any democratic country, requiring an independent Judiciary that functions reasonably and efficiently.
The Judicial Sector has the primary mandate to administer justice. It also has to interpret and to uphold the Constitution. Courts are often called the custodians of the Constitution because their rulings protect the rights and civil liberties of the citizens as guaranteed by the constitution. The Judiciary has Judicial Review Power. In terms of the constitutional doctrine of Separation of Powers it has power to review the decisions and actions of the Legislature and the Executive, Motala & Ramaphosa, (2002). Judicial Independence connotes, not just the independence of the judicial arm from interference by the other arms of the state, but includes independence of each judicial officer from any interference by other members of the bench.
The Judiciary and its Customers
In the Service Sector, the provision and delivery of service involves a variety of interactions between an organisation and its customers. The concept can properly be advanced further by introducing the element of quality in service delivery. One definition of Quality Service Delivery as a concept is:-
“A measure of how well the service level delivered matches customer expectations. Delivering quality service means conforming to customer expectations on a consistent basis.”
The Judiciary of Swaziland must, also, be viewed as an organization - a system designed to serve the needs of those who use the courts and involving processes and tasks that are interlinked and affect one another.
LEADERSHIP AND MANAGEMENT IN THE COURTS
Court systems require effective leadership and management practices to respond to many important issues, such as public trust and confidence, court and community collaboration, and timeliness and consistency. Strategic planning and team building must also become part of the inherent culture of our courts to bring about pertinent, effective change in the justice
The drawing of the Strategic Plan for the Judiciary of Swaziland 2007-2012 is but one commendable activity. But the Judiciary, as an organisation, needs to go a step further; that of ensuring that most of its members are aware of the vision and they are part of the strategic journey forward. Although it is good to have written strategy for an organisation, it is, however, vital that the members of the organisation or, in particular, its stakeholders become part of the strategy. Most public entities have a wide range of stakeholders with an interest in their operations. Common stakeholder groups include:
• Staff of the public entity;
• The public entity's customers and clients, and the broader community;
• The portfolio Department;
• Other State Government Departments and agencies who are co-operating
with the public entity or who rely on the public entity for goods or services;
• The public entity's business partners including companies, government
organisations and Non-government Organisations (NGOs).
The written strategy, which is referred to as the Formal Strategy, is a document which sets out everyone’s responsibilities to which managers and staff sign up as a roadmap to achieving the organisational goals. And Stakeholder expectations are one of the attributes that are likely to influence that form of a strategic alliance.
Monitoring and Evaluation
Time has come whereby the Judiciary is to embark on the process of assessing the suitability of its strategy; that is, to establish whether the strategy addresses the circumstances in which the organisation is operating, and acceptability assessment which concerns the achievement or otherwise of the expected performance outcomes, such as risk, return, and stakeholder reactions, following the implementation of a greater part of the strategy.
The most critical elements of modern judicial reform come with the realisation and acceptance that the court is a service agency. The service it provides is to resolve disputes in society [by providing a forum, and by taking responsibility for matters entrusted to it with an understanding of the users as customers and an appreciation of good customer service]. Courts should not just exercise mere adjudicative responsibility but there should be a paradigm shift to a system which focuses on total quality service, and not just function in blind isolation but must be part of the community. Visibility, through public (civic) education, is certainly a strategic consideration for achieving the latter.
Response to Change
The Judiciary has consideration of, and anticipates new conditions and emergent events and adjusts its operations as necessary.
Justice should not only be done, but should be seen to be done!”
Compliance with law depends heavily on public respect for the Judiciary. Ideally, public trust and confidence in the courts should stem from the direct experience of citizens with the courts. However, it is also influenced greatly by the media and the perceptions created. The maxim "Justice should not only be done, but should be seen to be done!” is critical to public trust and confidence. Unfortunately, there is no guarantee that public perceptions reflect actual court performance. Such guarantee can be envisaged in a situation where there is strategic interaction between the judiciary and the citizens of the country.
Protecting the “Rule of Law
On the issue of public confidence and how it can be attained and sustained reliance may be on the Appellate court systems which, in exercising mandatory or discretionary jurisdiction, should provide reasonable opportunity for a multi-judge review of decisions made by lower tribunals. Appellate court systems should develop, clarify and unify the law. The public’s trust and confidence is a precious commodity for the courts. When Alexander Hamilton noted that the Judiciary has “no influence over the sword or the purse” (Federalist Papers, 78) the emphasis was on the need for the Judicial Sector to focus on earning public confidence. Consequently, the judicial branch relies particularly heavily on public support to perform its role in our system of government.
Public Trust and confidence must be earned and can be easily lost. It, however, goes hand in hand, with public education. Unless the public is well educated and knowledgeable about the court system, they are likely to see shadows where there are none. Most members of the public do not have direct contact with the courts. Information about the courts is filtered through sources such as the media, lawyers, litigants, political officeholders, and employees of other components of the justice system.
The public is extremely lacking in knowledge about the Judiciary, and what is known is often at odds with reality. The Judiciary must inform and educate the public. Effective informational brochures and annual reports help the public understand and appreciate the administration of justice. Ignorance of the judicial system and of the Judiciary and the constitutional framework that governs it and its relations with the other arms of the state create flaws in our democracy.
The Judiciary, if it could establish a court protocol and information unit within its ranks of Court Administration, would create a situation in which, through the media, the average citizen has a basic but clear and accurate understanding of the nature, purpose and operations of the Judiciary, particularly where it touches him/her as an individual. The Judiciary envisages a situation where both its internal and external customers can readily access accurate information in written, audio and video media (as well as from Judiciary personnel), so as to reach as wide a cross-section of the public as possible.
This will ideally be accomplished by:
There is a presumption of openness in the Judiciary, which is long-standing, both in policy and practice, as well as established standards and protocols for public access to court records. A much anticipated, methodical and focused, promulgation of policies and rules, in line with the constitution and the Judiciary’s strategic plan will affirms that the endeavour to ensure that Judiciary’s records are publicly accessible
These should concentrate on matters, which are of importance to the public and should shed bright light on the non-confidential areas of Judiciary activities, which remain the most obscure to the public.