Institutional inertia

TERRENCE FARRELL

THE PRIVY Council recently handed down a judgment involving a minor who suffered from a genetic abnormality but had to be removed from his mother. After initial attempts at placement failed, the child was placed in the care of the St Michael’s Industrial School and later, the St Ann’s Mental Hospital, although his problem was not a mental illness. At both institutions he suffered physical and sexual abuse.

The issue before the Privy Council turned mainly on the quantum of compensatory damages, and the substantial vindicatory damages ($1 million), which the High Court judge had awarded. The Court of Appeal had reduced the compensatory damages and eliminated the vindicatory damages. The Privy Council restored the awards of the High Court.

What is striking about this case is what Rajkumar JA at the Court of Appeal had described as “institutional inertia” as the relevant explanation for the child’s poor treatment, rather than “malice” on the part of the agents of the State.

This graphic, albeit politically correct, phrase would also have been apt in the previous case of two minors (Seepersad [2021] UKPC 13) who were “remanded” as minors but, despite the Children’s Act which prohibited children on trial from being placed in prison, could be placed nowhere except in the adult women’s prison (in the case of the female minor) and the Youth Training Centre and subsequently St Michael’s (in the case of the male).

“Institutional inertia,” as clearly demonstrated in the cases of minors JM and the Seepersads, has serious consequences. But what causes this “inertia,” this “administrative sloth,” this “indifference,” this lack of responsiveness, this failure to follow up and execute?

First, we note that it is to be found mostly in the public sector. The private sector is not immune, but in most cases inertia there is frowned upon and dealt with fairly quickly. This is the first clue to its pervasiveness in the public sector.

It is hard, I daresay almost impossible, to hold public servants to account for what they do or what they fail to do. They are protected by antediluvian public service regulations and hamstrung service commissions. Yet these public servants are the people charged with producing and implementing the regulations which give life and meaning to primary legislation.

“Deadlines,” “targets,” “results,” which are the stuff of performance in the private sector, are mostly mere words on paper in the public sector.

Second, the political masters of the public servants measure performance in dollars spent and in physical outputs such as machinery acquired, and box drains, buildings and roads built. It matters little if the machinery, like the coastal radar system, or the scanners at the port stop working or never work.

It is not of great concern if the buildings are not maintained and go to rack and ruin, because millions will be spent to restore them, or we just build new ones. Collapsed roads are of greater, albeit fleeting, political concern only because of the tyre-burning and protests captured on the nightly news.

When it comes to the “software” that makes institutions function and produce the desired outcomes (such as the protection of children or the detection of crime), the systems and processes to ensure that these work well are often poorly designed or just broken.

The jobs are not properly specified, the right people are not hired, they do not get the right resources that they need to function, they are not properly managed, they fail to execute, and they are not held to account. Squatting on state lands, illegal building, and illegal quarrying persist over decades.

The third factor is what Lloyd Best described as the “unresponsibility” of our political elite. By that Best meant that though they are “in charge,” the post-independence political elite often do not know what responsibility requires of them. Though they are tasked with the management of their departments, they distance themselves from the systems and processes which must produce the desired outcomes.

The police are given the “resources” (cars and police stations and guns), but the systems and processes by which intelligence is gathered and used, the education and training of recruits as well as the officer corps, the information technology underpinning human resource management and intelligence gathering, even the physical fitness of police officers are considered outside the province of the political directorate, or just “political interference.”

So as crime escalates, the political directorate shrugs and says: “We gave them the resources.” The Police Service Commission says: “We recommended hiring the leaders, but we are not responsible.” The police leadership says: “The public is not co-operating with us.”

“Institutional inertia” is everywhere – WASA, Port, T&TEC, Licensing, Customs, Immigration, Prisons, even the Judiciary itself. It visits delay and frustration on the public, causes flooding, power outages and environmental damage, and condemns children to abuse. But it also provides a field day for lawyers to sue the State for the sundry breaches which institutional inertia produces as a matter of course. Lawyers making money for jam!

In a study of the 177 appeals to the Privy Council over the last 15 years, I found that 46 per cent of all appeals were non-criminal suits against the State including judicial reviews, service commission decisions, and constitutional cases.

In his otherwise excellent judgment, Rajkumar JA didn’t press the “institutional inertia” point. If he had, he, like the Privy Council and the judge at first instance, would surely have concluded that the effects of institutional inertia are sometimes indistinguishable from malice and “cruel and unusual punishment,” and that justice is done when victims are properly compensated and their rights vindicated. And pressed further yet, do citizens not have a “right” to effective government, and do governments not have a duty to be effective?