Although justice delivery system in
Nepal is hampered by various reasons that cause lack of proper justice to the
people, the progressive orientation of the court system is a commendable gesture
as it seeks to respond to people's expectation of positive change in judiciary.
However, issues such as increased caseloads, delayed appointment of judges,
frequent transfers of court officials, lack of super specialization of benches,
conservative approach at work including the weak case management and inadequate
resources continue to constitute the major stumbling block to effective justice
delivery in Nepal. In view of the existing issues, the UNDP continuously has
been supporting the development of effective justice delivery system on various
levels and ensure access to justice for all.
UNDP is actively involved in Nepal’s justice sector since
2001 and one of the major concepts it has introduced to help improve it is the
idea of a Model Court System. This is a concept that contributes in the
development of justice sector delivery with an integrated approach of
interventions. This included an array of support to 7 pilot courts in different
districts, wherein, they were provided with a package of infrastructural and
technical support in introducing new technology, adopting new methods at case
management, developing capacity including trainings and exposure visits for
both the judges and the court officials. Furthermore, as the most important
part of the intervention, these courts formally initiated a system of bench
specialization for the first time in Nepalese Judicial history. This not only marked
a distinctive feature of the model court system in the pilot courts alone, but
with passage time, it also saw an expansion of the same in all 75 District Courts,
16 Appellate Courts and the Supreme Court of Nepal. Earlier, there was no
concept of bench specialization in judiciary. The cases, irrespective of their
nature, type and gravity would be assigned to the judges without any systemic
approach. In fact, daily case assignment to the judges would be made on a
lottery basis, with risks for judges to receive cases from any areas of civil
to criminal case even if they didn’t have interest, experience and/or skills in
handling such cases. So to say, there was no distinction between the civil and
the criminal cases while assigning them to the judges for further hearing.
Thus, with the concept of model court, the generalist approach at case
management system was transformed into a specialized one with the establishment
of two separate civil and criminal benches in courts to deal with the cases of
respective areas with more effectiveness and quality.
''Establishing the concept of bench specialization was a
trend setting achievement in Nepalese court system,'' says Til Prasad
Shrestha, honourable
Judge at the Appellate Court Patan. '' This system formalized the differentiation of cases into two
broader categories of civil and criminal to ensure proper delivery of justice
since only experienced and skilled judges would handle cases under this system,'' he adds.
The scope of bench specialization was
not only limited to this. It also helped judges to develop expertise in
particular fields because those involved in certain type of cases eventually
gained skills and trained themselves better on their subject of
interest, experience and competence, ultimately contributing to enhance quality
of justice dispensation system. Beyond the formal court system, the model court
also established proper
trainings for law practitioners which helped them further in the specialization
and in their career enhancement.
Additionally, specialization also increased efficiency, as
judges who were more familiar with a specific area of law, both heard the cases
and delivered judgment more quickly. Rishikesh Wagle, the Faculty Member at
National Judicial Academy says, ''Apart from other merits, the bench
specialization has helped judges to have greater understanding of the law and
the impact of the court’s decision on the parties to a case.''
Lastly, this positively impacted the overall justice delivery
system and contributed in good governance not only by creating specialized
expertise to handle particular cases but also by ensuring transparency assuring
people's doubtful perceptions about case handling in courts. Sitting Judge
at Makwanpur District Court, Dr. Ananda Mohan Bhattarai- who was also one of
the proactive judges to implement the Model Court concept in those select pilot
courts- says, '' Bench specialization at courts has made the case management
system more predictable and transparent now and with the system in place
justice seekers can predict and perhaps attach their expectation that a
particular type of the case (would) be heard by a particular judge who commands
the expertise in the concerned area.''
Bench specialization refers to a process in which the judges
are assigned cases based upon their skills, experience and areas of interest.
While criminal cases are considered to be the ones which can be harmful to the
society, civil cases usually involve private disputes between persons or
organizations. Both these cases are completely different in nature and not all
practitioners of law are well informed about both these types. The court system
in Nepal in the past did not distinguish these types of cases, and neither were
the judges differentiated and assigned with cases at courts according to their
particular skills. The court hearings were made through a lottery system where
the judges were randomly chosen for cases. This had a toll on the potential
development of a specialized set of skills on the part of judges and every
judge dealing with every kind of case had only institutionalized the
conservative approach of case management. This system however, changed only after
the introduction of bench specialization which guaranteed a more scientific and
systematic approach to case management. The expansion of the bench
specialization has been a continuous development at Nepalese court system ever
since. The realization of the need and establishment of commercial bench,
in-camera hearing, and juvenile bench are the testimony to the ongoing journey
of 'bench specialization' in Nepal.
Studies from the United States, Australia, and other
countries have shown that specialization can be helpful in improving the
processing of court cases that are more complex or require special expertise
beyond the law, such as in bankruptcy, the environmental, or mental health
issues, or cases that must be handled differently to better reflect the needs
of a particular court user group, such as business cases or family matters. Initiated
some years ago, bench specialization today has expanded in many other areas
manifested in development of new laws and practices such as the witness
protection system, court-referred mediation, in-camera hearing, juvenile
benches and the commercial benches, among others. As the reasons mentioned above
state, bench specialization has positively impacted the effectiveness of
justice delivery in Nepal.
