Reforms in the Justice Delivery System


Bipin Adhikari
(Commentator)
National Conference on Participatory Democracy: Issues and Reflections
17-18 December 2012
Kathmandu

The context of reform in the justice system goes far beyond the principle of "Justice delayed is justice denied." This expression has remained the basis for the right to a speedy trial and similar rights in the justice delivery system. However, there are additional dimensions to this core concern.

Every judicial institution in modern world faces the unenviable task of delivering justice to its people, which must be timely, equal, and affordable. In a democracy, this is better performed by ensuring the broad participation of relevant constituents and creating opportunities for all to make meaningful contributions to decision-making. Participation also means opportunity to broaden the range of people who have access to justice. The institutional reform targeted towards improving administrative and organizational functions in the justice delivery system – the judiciary, prisons, and other law and justice agencies – needs to be implemented simultaneously with participatory-based approaches at the community level.

These reforms need to focus on expanding social, economic, and political opportunities for the broader community that includes women, children, and other traditionally marginalized people like dalits and janjatis. The justice system should also enable a greater proportion of the population to participate directly in strengthening the processes of justice in accordance with both national norms and values and fundamental rights. In other words, the objective of further reforms in the justice delivery system will be to create a new vision of justice with maximum accessibility that has the potential to reduce stress and improve the adaptability of the judicial system. Changes are needed among lawyers, judges, and litigants to put into practice this participatory justice, updating the values of respect, creativity, and 'proactivity.' Participatory justice implies the participation of all in the creation of a justice system and in overcoming its challenges.

Nepal is a country of a functioning justice delivery system. However, it has many problems to overcome. Some of the problems are structural while others are operational. The limits imposed by the economic constraints in the justice delivery system are there as a regular feature. In all its forms and limitations, justice in Nepal is basically a state enterprise. The demand of participatory justice is the use of alternative dispute resolution (ADR), such as mediation, conciliation, and arbitration, in criminal justice systems instead of, or before, going to court. It is a relatively informal type of case processing which makes use of local community resources rather than requiring traditional forms of official intervention. As such, it is sometimes also called community dispute resolution.

This critique is not aware of any effort taken in Nepal to look into the context of participative democracy in the justice delivery system. The questions that need to be answered are: what are the areas in which participation of the people is necessary to improve the situation? What does participatory justice actually look like to people affected by violence—victims, offenders, communities, and justice institutions? How do we know what victims and victimized communities want? Which justice processes at local or national levels work to include victims of violence as rights-bearing citizens, and how and with what effect? Should the local community be encouraged to work as part of the justice delivery system? What about the role of traditional local institutions engaged in justice related activities? These questions are important because they also have the potential to empower the local people and allow them to create a society which they would like to live in.

As far as the traditional justice delivery system is concerned, it has several structural and operational limitations. As the paper just discussed has already dealt with them in general, the focus hereunder is only on some additional matters that I consider must be discussed.

The July 2012 White Paper, entitled Swift and Sure: The [UK] Government's Plans for Reform of the Criminal Justice System: Equality Impact Assessment is the latest relevant report in this regard. It shows very effectively how the challenges of justice delivery systems exist even in what is conventionally described as first-world countries. Although the White Paper sets out the programme of reforms to the criminal justice system in England and Wales only, it makes very clear that the context of reform is a continuous process. It recognizes that the justice system should not only be 'swift' (upholding the maxim above, so in cases where a quick response is appropriate, they are dealt with promptly and efficiently) but also 'sure' "so that the system can be relied upon to deliver punishment and redress fairly and in accordance with the law and public expectation. A criminal justice system which fails to command public confidence in this way has fallen at the first hurdle."

In this White Paper, the government sets out how it intends to reform criminal justice by"simple, straightforward, and uncontested matters that represent the large majority of cases prosecuted through the criminal courts." There is determination to "secure guilty pleas earlier in the prosecution process, improving efficiency, reducing paperwork and process times, and alleviating some of the burden on witnesses and victims of crime." The government has also decided to simplify and extend police-led prosecutions. There is commitment to respond to local demands and priorities in all situations. Innovative approaches to court sitting times, assessing the merits of more flexible sittings, including early morning, evening, and weekend sittings for different types of hearings, have also been emphasized. There is determination to open the services to new providers and introduce alternative models of delivery including new forms of partnership with the private sector and mutuals. These initiatives are calculated to help deliver justice more swiftly.

To make justice 'sure,' the White Paper acknowledges that "criminal justice services must do more to get a firm grip on offenders, making them face up to the consequences of their crime, taking action which both punishes them and supports them to address their offending behaviour." Prison reforms, rehabilitation services to offenders, funding of justice reinvestment pilots, Neighbourhood Justice Panels, and the provision of Justice Test, have been assured in this regard. The Justice Test is being developed to provide a helpful tool to help professionals exercise their discretion in a fair and consistent way when they utilize alternative dispute mechanism techniques. The White Paper shows that the government is determined to build on the important contribution of magistrates (volunteers who hear cases in courts in their communities) and harness their potential. Proper safeguards must be in place to ensure the independence of the judiciary and prosecutors. What is being proposed is not "an alternative to the formal criminal justice system, but a measured return of power and responsibility to communities to resolve less serious crimes quickly and rigorously."

Physical infrastructures are always important for efficiency in the justice delivery. It must be built on transparency. This enables the public to understand "what happens when a crime is reported and how the criminal justice system is responding to their concerns." It helps ensure that the people who work in the justice system, including magistrates, "engage with the people in their communities to listen to what they have to say and give the public a voice in how criminal justice services are delivered in their areas."

I believe that this report may be utilized when we discuss the justice delivery system at some length in the context of participatory democracy.

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