Chief of Justice or Chief of Tax Collection?

The Bar Association has taken the position that was legally required in opposing the treatment of judicial services as a revenue-generating or revenue-collection mechanism, to be administered in the same manner as other executive government institutions. However, if the matter does not end there, a further question necessarily arises: what is the appropriate legal course of action that should follow?

From the perspective of justice-seekers, the Association has informed the public that the increased tariffs imposed on court services are unlawful. The more fundamental legal question, however, is whether the unlawfulness arises solely from the increase in those tariffs, or whether the tariffs themselves were without lawful basis ab initio. This question is particularly pertinent given the longstanding practice whereby a person seeking judicial relief, or his or her advocate, was required to affix or attach a tax-payment receipt to the relevant complaint or pleading; absent such a receipt, the court registry would reportedly refuse to receive or register the complaint in the first place.

The next legal question, therefore, is this: if an administrative action lies against the Ministry of Finance, or if a constitutional claim may properly be brought on the basis of the constitutional principle of the separation of powers and the fundamental right of access to justice, before which forum should such proceedings be instituted so as to challenge and seek the invalidation of these tariffs and, in doing so, vindicate the rights of those seeking access to justice?

The issue becomes particularly complex where the Supreme Court itself, and more specifically its Chief Justice, has issued or caused to be implemented a judicial circular through which the increased tariffs have been brought into effect.

That circumstance gives rise to a further and more fundamental question concerning judicial independence, institutional competence, the lawful authority to prescribe or impose charges for judicial services, the separation of powers, and the availability of an effective mechanism for reviewing or challenging an administrative or regulatory instrument issued by the head of the very institution responsible for adjudicating such a challenge.

Accordingly, the issue cannot be reduced merely to the assertion that the increased tariffs are unlawful. A proper legal analysis requires, at a minimum, that the following questions be determined:

1. What was the legal basis, if any, for the tariffs previously imposed on judicial services?

2. What statutory or constitutional authority, if any, empowered the relevant institution to increase those tariffs?

3. Which institution possesses the lawful authority to prescribe, approve, impose, or amend fees and tariffs applicable to judicial services?

4. What legal mechanism and competent forum are available for challenging and invalidating tariffs imposed without lawful authority or in excess of the powers conferred upon the issuing institution?

5. What effective avenue of judicial or constitutional redress is available to a justice-seeker where the impugned circular, directive, or measure originates from the leadership of the judiciary itself, particularly from the Chief Justice?

These questions go beyond the legality of the increased tariffs as such. They concern the source and limits of institutional power, the legality of delegated authority, the constitutional allocation of governmental powers, the independence and accountability of the judiciary, and the practical availability of an effective remedy for persons whose access to the courts is conditioned upon the payment of charges whose legal basis is itself in question.