Judicial Education and Skill Development: Nepali Experience
Judicial Education and Skill Development: Nepali Experience
Ananda Mohan Bhattarai
1. Introduction
Judicial education and skill development are considered as prioritized activities of the Judiciaries for enhancing the quality and promoting standards of justice. They are established as part of the judicial reform initiatives. In each country judicial education institutions (JEIs) have tried to address both internal and external challenges faced by its judiciary. They generate experiences and lessons which are of regional significance. In this paper I present the Nepali experience on judicial education where I throw light on country context,approach to judicial education, challenges and considerations taken note of while establishing the National Judicial Academy(NJA)Nepal and actions taken to meet the challenges and their outcomes. I also briefly discuss the successes and constraints and raise issues that are of significance in terms of judicial reform and synergy building at the regional level. The Nepali experiencecontributed by me is now included as voices from Asia and the Pacific in the "Search for Success in Judicial Reform", the Judicial Reform Handbook. This paper, in a way, is a synoptic note of the same.
2. Context
Judicial education initiatives taken by Nepal should be examined in the specific context of constitutional and legal structure, the distribution of courts and tribunals and the human resources associated with the justice sector. Also in the background comes the characteristic of the legal system, reform initiatives and the objectives that were expected to be realized by the creation of the NJA.
The Nepali judiciary today stands on the constitutional foundations laid down by the 1990 Constitution which is mostly replicated in the Interim Constitution 2007. The judicial power of the State is exercised by the courts, tribunals and other judicial institutions of the country as per the Constitution, laws and ‘recognised principles of justice.’[1] The expression ‘recognised principles of justice’ keeps the potency of internalising values developed in international and comparative setting for evolving a competent system of justice in Nepal. Besides, the Treaty Act also accords a prestigious position to human rights norms which could be used to give further force to the rights recognised by the Constitution and the laws.
The Supreme Court is the final court of appeal. All the courts and judicial institutions except the Constituent Assembly Court are subject to it. It has the final authority to interpret the constitution and the laws in force.[2] The precedents established by the Supreme Court are as good as the law.[3] The court is vested with extraordinary powers to issue prerogative writs. It exercises the power of judicial review and also entertains public interest petitions.[4] The constitutional provisions create scope for the judiciary to walk hand-in-hand with other South Asian judiciaries.
Below the Supreme Court, there are 16 appellate courts and 75 district courts in a hierarchical order. Besides, there are at least 8 other tribunals and special courts to hear specific cases. The constitution of benches hearing specific cases is a growing practice in the country. While there are juvenile benches in district courts, the government, on the advice of the Supreme Court, envisages establishing commercial benches in the Appellate Courts to hear commercial disputes.[5]
Currently, there are 256 judges, 314 officers and around 3000 para-legal staff associated with the judiciary, around 238 government attorneys and around 10,000 practising lawyers in Nepal. All the judges are law graduates with practical experience either in the Bar or the justice sector for a number of years.Besides, all the court officers and government attorneys are also law graduates screened by the Public Service Commission, following which they get appointment in the justice sector. But other para-legal staff (court clerks), which comprise the majority in the court enter service without any legal education. Even with regard to judges, government attorneys and lawyers their competence is affected by poor quality of legal education.
Nepali legal system grew by inheriting Hindu legal traditions. It came in contact with common law system popular in British India with whom it had close cultural, educational and religious ties after 1950 when the first generation law graduates began work in the legal and judicial sector. This resulted in the enshrining of many secular values in the Nepali corpus juris. This stemmed in close affinity of Nepali legal system with the common law tradition. Today, the Nepali Constitution enshrines a very bold and comprehensive framework of rights and many values of justice. By virtue of Nepal’s commitment to human rights, the justice system has a right focus.
When Nepal had just started her journey to full fledged democracy in 1990, the violent conflict waged by the Maoists six years later in 1996 clipped her wings. Over 14,000 people lost their life, around thousand others disappeared and many more thousands injured. The country witnessed heavy destruction of property and infrastructure. This conflict came to a halt after nearly a decade when a Comprehensive Peace Agreement (CPA) was signed between the government and the Maoist in Nov 2006. Following this, Maoists gave up arms and joined the political mainstream. An election to the Constituent Assembly(CA) was held in April 2008, in which the Maoists emerged as the single largest party and formed the government. The CA also abolished the 238 years old institution of Monarchy. Now, the country has also decided to give up the unitary structure and embrace federalism for which a series of agreements have been signed with forces crying for federalism, and the Interim Constitution has been amended accordingly. In the aftermath of the conflict, transitional justice issues have come to the fore in Nepal.
As indicated earlier, the Interim Constitution of Nepal guarantees judicial independence. The courts also enjoy functional autonomy. Because of its constitutional position and the role it is expected to play the judiciary is now a central institution for processing constitutional, legal and social disputes and ensuring abidance to the rule of law, human rights. Given that the legal system is still evolving the judiciary does possess a unique opportunity to shape it for lasting benefit of consumers of justice and creating a just order in society.
The Current reform initiativesundertaken by the Nepali judiciary are meant to remove a host of problems such as deficient laws, delays and procedural anomalies giving rise to docket congestions in several courts. The judiciary began to introspect and inquire into the management aspects in the courts in the late 1990s,[6] it drew out a comprehensive the Strategic Plan (2004-08) and also took the initiatives to establish the National Judicial Academy (NJA) in 2000 that was formally established in 2004. The NJA is now considered as reform vehicle of the Nepali judiciary.
2. Challenges Faced Prior to Establishment of NJA
Even though some form of training to judges and officers was provided by the JudicialServiceTrainingCenter (estd.1982), Nepal had little experience in judicial education. Therefore, when the initiative was taken, a number of challenges appeared.
2.1 Identification of Target Community: Given that thejudiciary was the final arbiter of justice, it had the responsibility to ensure other justice sector actors also performed their jobs in due regard to overall constitutional objective of imparting efficient, effective and timely justice. From this point of view, it was desirable that capacity building and professional development activities were undertaken in a coordinated manner under one umbrella. Single agency approach was also advantageous from the perspective of economic efficiency. But it was also necessary to bear in mind that conducting programs for too diverse communities would dilute the focus of the judicial education.
2.2 Objective and focus of Judicial Education:The objective and focus of judicial education is primarily determined by the pre-existing knowledge and skills or the lack of it in the target community. Even though all the judges and an overwhelming number of court officers and lawyers did possess law degree, the poor quality of legal education had a debilitating impact in their performance. Besides many para-legal staff of the courts did not have any legal education before they entered judicial service.
2.3Judicial Education in deficient legal environment: Judicial education produces better results in countries where the legal framework is robust. But in Nepal the judiciary had to work in a deficient legal framework and a legal void in many areas and aspects. Procedural anomalies, obsolete provisions of laws and absence of adequate and justice oriented laws often put the justice at peril. Where laws are at fault, it is difficult for judicial education initiatives to produce desirable results.
2.4Institutional Challenges:Institutional challenges pertained to the leadership, drawing up of faculty, know how, infrastructure development and securing of fund for the same, especially after the withdrawal of the Asian Development Bank which was supposed to assist the NJA project. Then there were internal and external demands which needed to be addressed.
2.5Enhancing Public Trust Through Judicial Education: Here issues pertained to boosting up low morale of the judiciary and low self image of judges. There were also ethical issues involved which needed to be emphasized among the judicial community for enhancing public trust.
3. Action Taken & Outcomes
3.1 Actions: After much deliberation the NJA was established an autonomous statutory body on the leadership of the Judiciary. The three major objectives of the NJA were as follows:
- To work towards enhancing competence and professional development judges, government attorneys, court officials and other officers of the Nepal judicial service and private law practitioners by developing programs of judicial education;
- To undertake research in areas of law and justice; and
- To establish itself a legal information centre.
The Act created possibility for the NJA to bring major justice sector actors under its banner and to work continuously for their capacity enhancement in a coordinated manner. Major Activities undertaken by the NJA in the last four years can be summarised as follows:
a)Faculty development:The NJA now works with a small core faculty and a wider pool of extended faculty. The extended faculties are prepared for the role to work as resource person once they participate in the training-of-trainers (ToT) on adult learning skills, preparation, presentation, facilitation, use of learning tools and allied subjects. Their continuous use depends on their performance at the training sessions evaluated by the participants and also their availability within Kathmandu valley.
b)TNA, Curriculum Development and Training:The NJA has conducted the TNA, once under the ADB project in 2002-03, and another in 2006 under the USAID/ARD Rule of the law project. The latest TNA identifies both knowledge, skill and behaviour related subjects in the priority list. The NJA frequently refers to the TNA while developing basic curriculum for short term training for district court judges, government attorneys, judicial officers, bench officers and government law officers. It is also developing curriculum for private law practitioners.
As of now the NJA has reached out to all the judges, officers of the justice sector. It started with short term orientation types of trainings and subsequently began to design programs in specific thematic areas. Depending on the cliental group and their job requirements, it conducts programranging from one day to five weeks.[7]
c) Research and publication:Since its inception, the NJA has prioritised research and publication. The work completed so far can be categorised into three broad groups:
- Research in problem areas affecting speedy and effective justice,[8]
- Research for improving the quality of judicial education,[9] and
- Policy research for judicial reform.[10]
d)Demand Side Considerations: The NJA has undertaken a number of programs in sectoral areas such as gender justice[11], juvenile justice[12], programs on Dalit's rights[13] and commercial and banking law,[14] Mediation, case management, public-private partnership and federalism.[15] These are the areas where significant constitutional and legal changes are happening in Nepal. In selecting these programs the NJA was primarily guided byboth internal and external demands.
e)Transitional Justice Issues: Since the country is in historic transition from conflict to peace and from authoritarian rule to democracy, the NJA has taken initiatives to apprise and orient its cliental group to transitional justice issues.
3.2 Outcomes
a)Emerging Local Ownership: The abrupt withdrawal of the ADB had created frustration at the initial phase but now after four years of its operation, one witnesses an emerging local ownership at the NJA in terms of curriculum development, training and production of training materials and research.
b)Momentum for reform:During the judicial education the NJA has brought to the fore the issue of getting a robust legal framework for making the dispensation of justice more accessible and effective. Judges are now raising issues of legal reform at different fora. This has in some ways contributed in creating a positive environment for the promulgation of separate penal code, civil code and procedural codes which had for long remained low priority subjects for the Executive and the Legislature.
Some programs conducted by the NJA have made instant impact on policy formulation. For instance, the program conducted by it on ethics and integrity had positive influence on the development of code of conduct for judges. Similarly, discussion program on the structure and function of the judiciary in federal constitution has added clarity on many knotty issues on the subject.
c)Growing donor and institutional support:Over time the NJA has begun to receive donor support for its activities. Its notable partners are USAID, UNIFEM, UNDP, World Bank, European Union, DFID, and the GTZ. Besides, it also got support of University of Hong kong which offered three scholarships for officers nominated by the NJA.
d) Changing attitude towards NJA activities: The activities of the NJA and the methodology adopted by it are getting more attention in the target community. For instance, in 2007 the SC justices showed interest to participate in the ToT, not because the Justices wanted to be trainers of the NJA but they saw merit in getting tips on effective communication and presentation which they have to do on numerous occasions on or off the bench. Other programs such asappreciative inquiry, leadership building, DNA typing, transitional justice have gotten cross-sectoral interest. More recently, the English language program run by the NJA in support of the British Council for judges and officers has become very popular.
Over time the NJA is merging as a centre for judges, jurists and scholars. Many judges and jurists have given talks and discourses on various aspects of law and justice.[16] These visits and emerging strategic alliance with organisations such as the UNIFEM, International Commission of Jurists, Geneva are likely to add more economic and other values to the work the NJA.
4. Successes and Constraints
The NJA has just completed just four years of its operation. Within this period it has certainly taken some positive directions in terms of capacity building of the judicial community, research and publication, and creating a positive environment for improving the dispensation of justice in Nepal. It has established itself as a central institution for judicial education and research in the justice sector. However, in terms of qualitative improvement of the justice system, four-year period is not sufficient for evaluating the success of the NJA. While talking about success I have a feeling that in a country mired in multiple challenges, the term "success" in itself sometimes appears as an illusion. Further, success or failures are relative concepts based on set of premises. Once the premise changes, perhaps what is said to be a success may not appear so. Therefore, what I term as success in the following paragraph should be construed only as positive trends.
Right from its inception the NJA has been receiving continuous support of the Supreme court and other stakeholders. The SC has deputed judges and officers to work as core faculty. The SC and the Ministry of Law have been instrumental in securing office space, land and building for the NJA. It is also receiving liberal financial and other support from the government. There is a positive appreciation and broad consensus among the stakeholders on training methodology adopted by the NJA.
Compared to successes, however, there are many constraints and challenges encountered by the NJA. First among them is the resource constraints, both human and financial, due to which it has not been able to fully implement activities entrusted to it by the NJA Act. For instance, the NJA is yet to reach out to court clerks, officials of quasi judicial bodies, and other support staff of the justice sector. It has not been able to establish itself as legal information center. Considering the vast demand for its services, the existing funds and human resources are insufficient to meet these demands.