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Roundtable Meeting of Chief Justices and Ministers of Justice
Strengthening Judicial InstitutionsRoss Clendon I. The Importance of Strengthening Judicial InstitutionsThis presentation, which focuses on the judiciary, the
courts and other dispute settlement institutions
throughout our region, represents a logical transition
from the morning session. This morning, as you will
recall, we focused on economic law issues To focus on judges and courts is, in essence, to focus upon the role legal processes and legal institutions play in the settlement of disputes. Historical experience suggests that the availability of effective and low cost civil and commercial dispute settlement is an important condition for economic development. Dispute settlement cannot be effective or low cost if it is not reasonably speedy. And the speedy resolution of disputes becomes an issue whenever courts are congested. In much of the Bank's region, court congestion is a major problem. This is particularly so in South Asia. In one developing member country alone - India - the judicial system is currently wrestling with a backlog of 30 million cases. Any work to reduce court congestion by strengthening alternate dispute resolution (ADR), and finding other means of making national judicial systems more effective, efficient and fair in resolving commercial, civil and other disputes, serves two of our crucial themes - developing legal frameworks to serve a market economy, and solidifying the core principles of sound governance. Court congestion is quite rightly an important focus of judicial strengthening and institutional reform. But it cannot and should not be the sole focus, and we must move beyond merely identifying the need for more judges, more courtrooms, and more court personnel as the solutions to the problems of congestion. We must ask why the courts are congested, and what kinds of cases are most responsible for the problem. To cite India again, the number of civil cases decided annually by the courts, especially at lower levels, falls far behind the number of new cases filed each year. But a special feature of the Indian situation has been the large number of suits between state and non-state parties. Citizens have substantive legal rights and rights to judicial review, but at the same time the state has intervened extensively in commercial and other normally non-state activities. In India, this situation has led to parties in dispute finding alternative mechanisms for dispute resolution when the court system proved unusable. So at least in this context, alternate dispute resolution has been a useful response and antidote to court congestion. We know, however, that a focus on court congestion and alternate dispute resolution cannot complete an inquiry into judicial strengthening and reform. In a number of the countries of the region, including but not limited to the transitional economies, court congestion and related issues are not the primary challenges that face the judiciary. In those countries, broader work on the construction and role of judicial institutions must be a focus of our efforts. Through years of experience, we all know now that mere adoption, even implementation, of new and improved economic and civil legislation in transitional or liberalizing economies is not enough. The courts and other dispute settlement institutions must provide effective, fair, relatively speedy and relatively predictable sites for parties in commercial disputes to iron out their conflicts. In this sense additional judicial reforms are a crucial, undeniable complement to the economic law reforms we discussed this morning. And the strengthening and reform of courts and other dispute settlement institutions are closely related to the need for participation, accountability, predictability and transparency in improved governance practices throughout the region. Courts should be mirrors of predictability, transparency, accountability and the ability to participate in arguing one's positions - all hallmarks of strong governance practice. The structure of a particular country's judiciary may sometimes be part of the problem. Do judges have sufficiently high status to command respect from government and the public? Are judicial appointments and promotions based on merit, or are they politicized? Are judicial salaries adequate to ensure quality, professionalism and independence? Do adequate disciplinary mechanisms exist for dealing with judicial misconduct? Does judicial corruption exist and, if so, how can it be dealt with? Another set of important issues revolves around the physical infrastructure of the courts and the management of their work. Do courthouses already exist, in sufficient number and adequately furnished? And if these more basic needs have already been met, have modern techniques of public and private management and administration been applied within the existing courts to scheduling, to record keeping, to making information available to litigants, their lawyers and the public and also, of course, to the judges themselves? How much would courts benefit from information processing and computer equipment, such as legal information systems for court record-keeping and for legal research and communication within the judiciary? Of great importance, too, in this whole area is the appointment and training of adequate court support staff. II. The Role of the Asian Development BankIf judicial strengthening is closely related to the twin goals of improving market economy legal frameworks and strengthening sound governance, how is the Asian Development Bank assisting this process of strengthening judicial institutions around the region? Thus far the Bank has not been able to devote substantial resources to strengthening and improving the legal institutions of our developing member countries. And that leads directly to one of the key points of this presentation, and of this day - to seek guidance from our distinguished participants, the justices and ministers gathered here in this room, on the appropriate priorities in, and boundaries for, Bank and other donor assistance to the judicial institutions of your various countries. In those countries and instances where the Bank has been able to assist, a number of different approaches have been taken. One approach has been to help reduce court congestion through a focus on alternate dispute resolution. Another approach involved Bank support for a comprehensive assessment of the needs of a member country's entire legal sector in the hope that this would assist donors and local beneficiary groups to cooperate and coordinate their future efforts more closely. Yet another approach has seen the Bank working on broader issues of policy reform in certain countries - for example, in the financial or industrial sectors - with the specific goal that certain legislative reforms (for instance, a new bankruptcy law) or structural reforms (for example, the setting up or strengthening of a specialist court) will, in turn, make the judicial sector more effective and efficient. Let me - very briefly - give you some specific examples of the Bank's as yet limited work in this area using some of these different approaches. With regard to efforts to reduce court congestion, the Bank has been working in India to encourage alternate dispute resolution by providing training in ADR techniques to conciliators and mediators (TA No. 2521-IND). Four separate workshops were held in different parts of India during the course of 1996 and early 1997 under the auspices of India's International Centre for Alternative Dispute Resolution. Another and much more long-running example of Bank activity in this general area can be found in Mongolia where, beginning in 1994, a technical assistance project for the development of Mongolia's legal framework has been implemented in conjunction with a policy-based loan to foster industrial sector reforms (TA No. 1930-MON). Although the focus of that technical assistance was on economic and commercial legislation, it also involved a modest amount of support - both direct and indirect - for the strengthening of judicial institutions. One of the six foreign lawyers involved in the project spent 15 months attached to the Office of Mongolia's Chief Justice, Mr. Dembereltseren. Mr. Dembereltseren is here with us today and is obviously in a better position than I to comment on how useful this expert's presence was to his colleagues and staff. However, that particular assignment does highlight some of the potential benefits that flow - for both donors and donees - from providing long-term as opposed to short- term assistance, particularly in countries such as Mongolia where the barriers of geography and language make communications with the outside world difficult. The relatively long-term presence of that particular lawyer in Mr. Debereltseren's office was instrumental in fostering overseas training and exchange opportunities for Mongolian judges and others in the local legal community (at universities in the Netherlands and Hong Kong) that otherwise would not have materialized or been logistically feasible. A third example of Bank activity - one where Bank support for judicial institutions is part of a broader effort at legal reform - can be found in the Kyrgyz Republic. Last month the Prime Minister of the Kyrgyz Republic led a government team to Manila to negotiate a loan package in support of corporate governance and enterprise reform. Part of that loan package will support policy reforms to enable the government to strengthen the legal framework for insolvency and ensure its enforcement. Among the steps recently taken or shortly to be taken are the enactment of a new bankruptcy law and the filling of judicial vacancies in the country's Arbitrazh (or commercial) courts. Another part of the package involving a separate Technical Assistance Loan will enable the government to borrow from the Bank to strengthen the Arbitrazh courts - there are six at different locations throughout the country - through a mixture of training, rehabilitation and refurbishment of court buildings and the procurement of equipment and materials, including computerized legal information databases. Our Board of Directors is due to consider this loan next month and, if approved, it will mark an important milestone. For unlike the assistance given to India and Mongolia, which was by way of grant and relatively much more modest, this will be a loan and as such represents the first time a member country has shown a willingness to borrow in this manner for law and development purposes. It may already be apparent that training is an important feature in the support given to date to each of these three countries - India, Mongolia, and the Kyrgyz Republic. My colleague Eveline Fischer will discuss the training of judges (as well as government lawyers) in more detail shortly, but I should confirm the centrality of training in our current and planned activities to support the strengthening of judicial institutions. While still on this subject, it is perhaps also worth noting that a number of individual judges, arbitrators and court staff have been included in Bank-funded workshops on current legal issues that have been conducted as part of our regional (as opposed to country-specific) activities. These workshops - normally from a week to ten days in duration - were held in Cambodia, China, Laos, Mongolia, Nepal, Vanuatu and Viet Nam between 1993 and 1995 (TA No. 5516-REG). That particular regional project has been followed by another ongoing one in which we have asked the International Development Law Institute to assess what assistance might be given to four countries - China, Mongolia, Viet Nam and Cambodia - to institutionalize their continuing legal education capacity -in other words, to become less reliant on short-term (and expensive) foreign experts and have more long-term training and retraining carried out by local people (TA No. 5640-REG). Building on that project, as Ms. Fischer will shortly discuss, the Bank is now considering country-specific technical assistance projects to provide capacity-building support for continuing legal education at local institutions in Viet Nam and Mongolia - an effort that will concentrate on "the training of trainers". III. Issues in the Strengthening of Judicial Institutions Around the RegionAt least two important issues are raised by the many programs that can be identified around the region to strengthen and develop judicial institutions. The first relates to sustainability. Are the innovations, and in some cases the institutions themselves, that are being supported by the Bank and by other donors sustainable once the donors leave? Can sustainability be built into the new judicial practices and structures that donors are supporting, or will, many collapse inevitably once technical assistance and budgetary support end? In my own view, sustainability is almost entirely related to the political will of governments to approach and persist in legal reforms; where political will is strong, these projects can be successful in the short run and sustainable for the longer term. Where political will is weak, it is very difficult for projects to be successful. Political will must also translate into national commitment, evidenced by commitment of actual resources to projects and to legal reform beyond the mere naming of a national counterpart ministry or agency to "monitor" or "oversee" whatever external aid is given. The second important issue relates to project focus. Is there a tendency to concentrate too much on technical and infrastructure concerns - court congestion and inadequate physical facilities, for example - and not pay enough attention either to basic training and research issues involving the role and structure of the judiciary, or to broader policy issues such as the independence of the judiciary? Are we at risk of working too much on, say, court congestion and alternate dispute resolution when the real issues may be the low status of judges, the low pay given to judges, and related but difficult problems, such as judicial corruption? We look forward to your comments and suggestions on how the Bank in general, and the Office of the General Counsel in particular, can best contribute in this challenging but very necessary task of strengthening judicial institutions throughout our region.
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