Searching for Success in Judicial Reform TECHNICAL EDITOR: Livingston Armytage NETWORK FACILITATOR: Lorenz Metzner Searching for Success in Judicial Reform Voices from the Asia Pacific Experience Asia Pacific Judicial Reform Forum 1 1 YMCA Library Building, Jai Singh Road, New Delhi 110 001 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in India by Oxford University Press, New Delhi © United Nations Development Programme 2009 This publication was prepared in partnership with the Asia Pacific Judicial Reform Forum (APJRF) The moral rights of the author have been asserted Database right Oxford University Press (maker) First published 2009 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose this same condition on any acquirer ISBN-13: 978-0-19-806077-2 ISBN-10: 0-19-806077-7 Typeset in Giovanni Book 10/12.8 by Jojy Philip Printed in India at Pauls Press, Delhi 110 020 Published by Oxford University Press YMCA Library Building, Jai Singh Road, New Delhi 110 001 Contents Preface by Antonio T. Carpio and K.M. Hayne ix Acknowledgements xi List of Abbreviations and Acronyms xiii INTRODUCTION 1 Searching for Success in Judicial Reform: 3 Voices from the Asia Pacific Experience Livingston Armytage 1.0 The Purpose of this Book 3 2.0 Reform Context 4 3.0 Searching for a Theory 6 4.0 Experience from Practice 11 5.0 Overarching Themes: Ten Challenges 25 6.0 Conclusion 35 1. SECURING JUSTICE 43 Development and Implementation of Reform 45 Initiatives to Ensure Effective Judiciaries Mohan Gopal 1.0 Key Messages 45 2.0 Analysis of Judicial Reform Experience Worldwide 47 3.0 Description of Reform Experience: Justice- 70 centred Judicial Reform—The Case of India 2. CASE MANAGEMENT REFORM AND DELAY REDUCTION 79 Case Management Reform—The Philippine Experience 81 Zenaida N. Elepano 1.0 Key Messages 81 2.0 Description of Reform Experience 86 vi CONTENTS 3.0 Analysis of the Experience 100 Backlog Reduction—The Indonesian Experience 110 Paulus E. Lotulung, Aria Suyudi, Rifqi S. Assegaf, Wiwiek Awiati 1.0 Key Messages 110 2.0 Description of Reform Experiences 113 3.0 Analysis of the Experience 125 3. PROMOTING ACCESS TO JUSTICE THROUGH 135 JUDICIAL REFORMS Barriers to Accessing Justice—The Vanuatu Experience 137 Anita Jowitt 1.0 Key Messages 137 2.0 Description of Reform Experience 142 Shared Challenges in Securing Access to Justice— 164 The Indian and Sri Lankan Experiences Ayesha Dias 1.0 Key Messages 164 2.0 Description of Reform Experience 167 3.0 Analysis of the of Experience 180 4. ETHICS, INTEGRITY, AND JUDICIAL ACCOUNTABILITY 185 The Evolution of the Judicial Council— 187 The Nepal Experience Hari Phuyal 1.0 Key Messages 187 2.0 Description of Reform Experience 189 3.0 Analysis of the Experience 199 The Philippine Experience 206 Myrna Feliciano 1.0 Key Messages 206 2.0 Description of Reform Experience 210 3.0 Analysis of the Experience 224 CONTENTS vii 5. JUDICIAL EDUCATION AND SKILLS DEVELOP MENT FOR 233 JUDGES AND COURT STAFF The Cambodian Experience 235 Sathavy Kim and Ly Tayseng 1.0 Key Messages 235 2.0 Description of Reform Experience 238 3.0 Analysis of the Experience 255 The Nepal Experience 263 Ananda Mohan Bhattarai 1.0 Key Messages 263 2.0 Description of Reform Experience 267 3.0 Analysis of the Experience 279 Annexure One: Glossary 295 Annexure Two: Country Context Background 296 A2-1.0 Cambodia 296 A2-2.0 India 299 A2-3.0 Indonesia 301 A2-4.0 Nepal 308 A2-5.0 Philippines 311 A2-6.0 Sri Lanka 314 A2-7.0 Vanuatu 317 List of Contributors 324 Preface ations all around the world continually seek to improve their Njudicial systems. The word, judicial reform, like globalization, has entered the vernacular. Those of us who are judges, indeed all who are associated with courts everywhere, now actively pursue the goals of improving our individual work and improving our courts as institutions. We do this because we recognize that our judicial systems are defining characteristics of the way in which our societies are governed. The improvements we make in our judicial systems will have direct effects on fundamental aspects of national stability and on social and economic progress. The movement for judicial reform has gathered pace over recent years. At least in part this has been a response to increasing demands for the highest standards of integrity, accountability, professionalism, and efficiency to meet the imperatives of global trade and interaction. In part it has been urged on by wider and more informed discussion of human rights, access to justice, and good governance. Judicial reform is now, and must remain, at the centre of the stage when there is discussion about progress. The Asia Pacific Judicial Reform Forum is a network of 49 superior courts and justice sector agencies across Asia and the Pacific. It is united by a shared commitment to respond to the challenges of judicial reform. It was established pursuant to the Manila Declaration for a 21st Century Independent Judiciary in 2005 and it provides the means by which challenges, ideas, and experiences can be shared and explored. Searching for Success in Judicial Reform: Voices from the Asia Pacific Experience is the fruit of the Forum’s first project. Its chapters reflect the priorities which the members of the Forum defined. It is a resounding achievement for our region to have drawn together the collective reform experience that is reflected in these pages. x PREFACE Searching for Success draws these experiences together to present a unique, practical guide to reform and development of courts across Asia and the Pacific. The chapters draw on the expertise of some of the region’s most skilled justices, court administrators, and scholars. They offer a broad cross-section of case studies and reflections. Those who seek to develop and execute reform strategies will find in these chapters new perspectives from which to view the challenges before them. They will find an account of the ways in which issues have been dealt with by others. But more than this, they will find in Searching for Success the inspiration to continue pursuit of the goals of improving the work that each of us does, and the judicial institutions wherein each of us serves. Justice Antonio T. Carpio Supreme Court of the Philippines Chair, Project Board Justice Kenneth Hayne, AC High Court of Australia Chair, APJRF Secretariat Acknowledgements he Asia Pacific Judicial Reform Forum was established by the TManila Declaration on Judicial Reforms framed at the International Conference and Showcase on Judicial Reforms hosted by the Supreme Court of the Philippines in 2005. The Forum’s mandate is to promote improved effectiveness in judicial reform by facilitating and coordinating the exchange of reform experiences, ideas, and issues from throughout the region. Searching for Success in Judicial Reform: Voices from the Asia Pacific Experience is a publication by and for the region. The publication was led by a Project Board. We are grateful to all of the board members for their ongoing support and guidance: Justice Antonio Carpio, Philippines (Chair); Chief Justice Vincent Lunabek, Vanuatu; senior judge Zhang Genda, China; Justice Kenneth Hayne, Australia; Dr Faqir Hussain, Pakistan; Mr R. Sudarshan, UNDP; and Justice Phattarasak Vannasaeng, Thailand. We are also grateful for the active support of the Forum’s Secretariat comprising the High Court of Australia, the Supreme Court of the Philippines, the Federal Court of Australia, the Supreme Court of New South Wales, and the Judicial Commission of New South Wales. The project was generously funded by the United Nations Democracy Fund, with the Forum’s Secretariat and United Nations Development Programme’s Regional Centre partnership turning the concept into reality. The Forum is extremely grateful to the United Nations Development Programme for the provision of staff and financial resources, in particular: Ms Marcia Kran; Mr Jak Jabes; Ms Emilia Mugnai; Mr Arusha Stanislaus; and Ms Panvirush Vittayapraphakul. The Forum is very grateful to the Network Facilitator and co-editor, Mr Lorenz Metzner and the Technical Editor and co- author of the publication, Mr Livingston Armytage. Their tenacious aptitude and commitment to produce an analytical, evaluative, xii ACKNOWLEDGEMENTS and informative text has ensured that this publication provides a meaningful contribution to the literature on judicial reform. The publication comprises thought provoking analyses of recent judicial reform programmes undertaken by a cross-section of Forum countries. Special thanks go to the following authors: Deputy Chief Justice Professor Dr Paulus Lotulung, Indonesia; Justice Dr Ananda Mohan Bhattarai, Nepal; Justice Sathavy Kim, Cambodia; Professor Dr Mohan Gopal, India; Professor Myrna Feliciano, Philippines; Ms Ayesha Dias, India and Sri Lanka; Ms Zenaida Elepano, Philippines; Ms Anita Jowitt, Vanuatu; Mr Ly Tayseng, Cambodia; Mr Aria Suyudi, Indonesia; and Mr Hari Phuyal, Nepal.