Draft UNDP report entitled: Terms of reference for a national consultant: relating to supporting the judicial system in Nepal

Seidman, Ann

Seidman, Robert B.

English

Boston University Institutional Repository (OpenBU)

Boston UniversityOpenBU http://open.bu.eduSeidman Research Papers Workshops, Notes and PapersTerms of reference for nationalconsultant -- strengthening the ruleof law: supporting the judicialsystem in Nepalhttps://hdl.handle.net/2144/29931Boston University1. ~ P ( t>-f T re-po-r'"t -fo P 12. ckt[;v-'2.¥~ by 8-~~ t t--l<nA) Terms of Reference for National Consultant Strengthening the Rule of Law: Supporting the Judicial System in Nepal Background: The Government has indicated interest to utili se UNDP 's advantage and experiences to improve the judicial system in Nepal. Judicial reform has been identified by UNDP 's Policy on Governance as one of the target governance institutions to receiv e support by the organisation. UNDP has been supporting the initiatives of the Government to improve local governance to strength en decentrali sation and for povert y all eviation in Nepal. On-going initiativ e~ are expected to build the basis for local self-governa nce and the institutional basis for sustainable human development. The sustainability and impact of local initiatives are assured , howev er, only with strong linkage and appropriate environment for transparent govern ance and administration at the central lev el. The role of the state , const itutional organs , legal and regul atory mechanisms (policies) , mar kets , civil societ y are ve ry important to ensure accountable , effective governanc for the development of Nepal. Th e first election since the restoration of democracy was held in 1991 , leading to the establi shment of the Parliament and Government under the Con stitutio ·nal monarchy . Th e people have exercised their sovereign authority by electing thei r Repre sentatives to the Parli ament, thereby giving the parliament and government the authorit y to govern for the common good. How ever, frequ ent chang es in the Government and their short -durat ion of ex istence hav e resulted in extensive transfer of governm ent staff , rent seeking opportunities , politici sation of the bureaucracy, weak infrastructure and response to loc al needs , and delays in implementation of development programme s. Clarification of the roles and functions of Mini sters , Secretaries , Ministries , Departments , Local Authorities and various constitutional organs would significantly contribute to establishm ent of a clear line of authority for efficient administration and dispensation of ju stice . Although the judicial system is considered fairl y strong through its· constitutional pro vision, the overall perception towards the jwdicial system is not positive. Independent groups, such as human right activi sts, advocates, responsible offic ers in government , journalists and members of the general public have voiced concern about the lack of impartiality and independence of the justice system. Similar con cern is also expressed in the long delays in providing justice. Some of the key problems are ; rapid expansion of judiciary resulted in poor court management; insufficient legal aid to the poor and disadvantaged; high legal expenses; staff management problems; and influence of politic s and socio-economic factors on court activities; lack of integrity of judges and corruption in court. Overall court management system is rather loose and there is prevalent corruption at every level of judiciary process . Forensic evidence reports could go ' missing ' in the system. Cases can be ' lost ' in the court office and the penalty for the loss is a few rupee s. Case s can be dropped at prosecution lawyers ' discretion . There is alm ost no prosecution mechanism or legal framework for bribery or corruption in the system. Perva sive corruption can only be curbed if criminal justice system becomes more solid and effectiv e. Efficient legal drafting and legislation works are indispensable for the justice system to be effective. Howe ver, adequate resources are not availab le for legal drafting works at the Ministry of Law and Justice. There is shortage of manpower and a staff often lacks expertise in the .relevant field. Bills are prepared in hast e and extensive .discussion is not given in their preparation. Bills review committees at the Parliament are conducted behind closed doors, therefore legislation process are not transparent and accountable to the public. While there is only few experts in committees, no provision has been made for public hearing in the review process . Constitutional bodies such as the Commission for Investigation of Abuse of Au thority (CIAA) has the power to investigate into the irregularitie s committed by the Government. The Government has the tradition of establishin g different commissions and committees to investigate dishonest activities as well. However, the different committees , includin ·g the CIAA, have rarely succeeded in bringing the culprits to face justi ce. There is no communication or co-ordinated efforts among Ministry of Law and Justice , Ministry of Home , Police Department , Attorney General , and other constitutional bodies to tackle issues of corruption . There is no political will to develop a proper judiciary system . The Government and politicians do not wish to reform the system. Publ ic funds disappear in ' leakage ' from government depa rtments, taxation and finance . Watchdog bodies are reluctant to do anything as it might result in their demotion or termination. At present, the · Government and politicians ' actions are not censured by the justice system. Poverty alleviation will not be achi eved without reform of judici ary system and eradication of corruption. 2. Tasks of the National Consultant: A national consultant will be responsible to lay the groundwork for an international mission that will be fielded at a later stage to formulate the technical assistance programme to assist the Government in developing capac ity and improving the judiciary system in Nepal. The consultant will prepare the terms of reference (TOR) for the international mission. Another output of the consultant will be the comprehensive analysis report on previous and on-going assistance and intervention by donor agencies , NGOs , INGOs, government bodies and other relevant parties in the field of judiciary reform and the eradication of corruption. Lessons from previous initiatives should be 2 drawn to help the international mission identify the best ent ry points for the technical assistance programm e. The consultant should pay partic ular attention to the following issues and assess how the prev ious and on-going initiativ e hav e succeeded or fa iled to achieve their ob ject ives, when prep aring the repo rt. - Rol es, functions arid jurisdi ction of the judiciary , espec ially in the area of criminal justic e, - Issue of corruption at every leve l of judiciary process , - Efficiency of overall court ma nagement system, - Ind ependence of judge s, - Training and education fac ilitie s for judge s and oth er court staff, - Status of legal educati on, - Information facilities for judg es to access up-to-date legal texts, - Costs of justice , - Polit ical and economic influenc e on ju diciary proc ess, - Review of landmark cases, In Legri ty and transpar ency, - Refor m of entire criminal j ustice sys tem providing for mor e public participation , - Relat ionship between the co urt and the police , including reporting procedure by the polic e, - Public access to ju stice, - Qualit y access to legal supp ort by the poor and disadv antaged , - Gender equity in access to ju stice and in the judiciary , - Legal drafting , - Collection and handlin g of fore nsic ev idence, - Capacity and efficiency off rensic laboratories . The analysis should cover current strengths, weakne ss, opportunities and threats ("SWOT") to identify high leverage points of entry to reform criminal ju stice system and develop strategies to support a stro ng, transparent and accountabl e judicial syste m and eradicate pervas ive corruption . 3. Methodology: Approach The national consultant will combine a literatur e review with research and analysi s in order to assess, analyse and prescribe a series of interventions on judiciary reform and issues of corruption. I. Preliminary Work 3 • • II. • • • III. Gain familiarity with donor organisations, NGOs, INGOs, and national and international agencies involved in initiatives related to judiciary reform and issues of corruption. Review the past strategies and methods and identify best practices and demo nstrated impact. Needs Assess ment Review secondary literature . Ide ntif y key areas for further inqu iry . Conduct preliminary needs asse ssment. Analysis and Prescription/R ecommenda tions Analyse results of above I. anJ II. and recommend intervention strategies. The output of this component should be a report encompassing the fol lowing: • • • • • IV. Analysis of problems . S umm ary and evaluation of past and on -go ing intervention s . Discussion of findings . Recommendations on overall programme strategy . Recomm endations for imp k inenting modality . Programme Presentat' on • Prese ntation of the reports to UNOP senior management. 4. Duration of the Process: Th e consultant will hav e one month (thirty working day s) to compl ete the task s stipulated in this terms of refer ence. 5. Reporting and Respon sibility: The consultant will be responsible for the implementati on of the complete · terms of refe rence and will report to the UNDP senior management as well as GIN Unit. 4 I j 

Terms of reference for national consultant -- strengthening the rule of law: supporting the judicial system in Nepal

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Terms of reference for national consultant -- strengthening the rule of law: supporting the judicial system in Nepal

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