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.
- Despite efforts, Nepal is still fighting with the long, drawn-out litigations. This is true in most of the civil and criminal jurisdictions. The Summary Procedure Act is a good instrument, but in the end, even its implementation is not smart.
- There is a need to improve transparency of the system, so the public can understand how the system works and be able to engage as local communities in the justice process. So far, the proceedings in the court system do not give space for local communities to be involved in issues that concern them. Courts are usually taken as outside institutions and the arm of the ruler rather than of the ruled.
- Police, prosecutors, and courts have not been able to work together with proper coordination of the exercise of their power and jurisdiction, leading to the delay in the justice process as well as well as its result.
- Officials of the lower judiciary need to be provided with basic infrastructure that would help them to work effectively. By upgrading their infrastructure and technology, they could be computerized and closely integrated with the Supreme Court as well as Appeal Courts. The communication technology is important for the integration of the entire judicial system equipping it to deal with the rising volume of cases. Although the process has started, it has not yet picked up.
- Under a special drive to reduce the number of pending cases, especially those that deal with the weaker sections of society, the Ministry of Justice and the National Judiciary have to take several steps to expedite the way courts function.
- The provision of Vacation Bench has a long history in Nepal for habeas corpus cases in certain contexts. The provision is being extended to courts other than the Supreme Court. However, it is advisable to establish Vacation Bench in all cases and courts where slow speed has been implicated in the judicial decision-making.
- Increasing the number of court-working hours using the existing infrastructure by holding morning/evening shift courts has also been emphasized by stakeholders in recent years. However, this emphasis have not yet been acted upon.
- Much of the existing delay in criminal jurisdiction would be handled well if the use of technology is maximized. This could facilitate virtual courts and prisons to court video links in certain places.
- The Mediation Act recently passed must also be implemented effectively as it will reduce the pressure on regular courts. The Regulations under it must be enacted as soon as possible so that the Act could be implemented as desired.
- Providing additional funds to legal services authorities is necessary to enable them to enhance legal aid to the marginalized and empower them to access justice.
- There is a continued necessity of enhancing capacity of judicial officers and public prosecutors through training programmes.
- Training and capacity-building is not a one-time process. It must be continued in an integrated system keeping in view its long term objective. There must be initiatives to create branches of National Judicial Academy in strengthening its presence in each region to facilitate such training.
- Delay caused by lawyers as part of judicial strategy to win their cases must also be checked.
- Local elections must be conducted to restore local government bodies according to Local Government Act that provides access to justice to citizens at their doorsteps under its formulations. Its provisions enabling exercise of judicial powers in local disputes as it identifies must be utilized to improve justice delivery at the community level.
- It is expected that when the new constitution enacts, it will create space for various local, traditional judicial, or semi-judicial institutions to deal with local and subject matter jurisdiction. It will help the justice delivery system in different ways. However, it is advisable to start working to sort out conceptual matters and create necessary framework for future legislatures.
- There is an urgent need for law and policy to shift from official, rhetoric-supporting traditional and community-led approaches to law and justice to a greater commitment from the leadership to redirect some of the resources available to the government sector (courts, prisons, civil service) to underutilized community organizations.
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.
