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DIAGNOSING JUDICIAL PERFORMANCE: TOWARD A TOOL TO HELP GUIDE JUDICIAL REFORM PROGRAMS;
ANNEXES VII TO IX.

Linn Hammergren
World Bank


Annex VII: Outline of Issues and Ideas Relating to the Assessment and Establishment of a Functioning Judicial System in a Lsser Developed Country. (Robert Fiedler, International Legal Project Center)

[These terms of reference for a judicial assessment were developed by Mr. Fiedler for USG use in Haiti in the early 1990's. However, the author was clearly thinking beyond that case. The intended use does explain some details and references to USG agencies the participation of which in an eventual reform was already anticipated ]

Introduction. The purpose of this paper is to outline some of the principal areas that might be considered when evaluating or attempting to reinvigorate a judicial system. It relates to circumstances that might be found in a lesser developed country, a war torn nation, or a jurisdiction where the judicial system is simply dysfunctional. The paper can serve as the framework for a needs assessment. It is generic and contains information and observations which have near universal applicability. Much of what is initially required is simply gathering information about available personnel, facilities, the substantive and procedural law, and the general justice/judicial system and structures that are in place. Following the assessment, a written analysis of the status of the system and plans for its reconstruction would be prepared. Implementation will vary dramatically based on the circumstances of the system, resources available, and the applicable legal and cultural history.

The paper assumes that the assistance team is performing its functions, at the request of the host nation and that cooperation with the host nation is expected.

  1. Mission Approach/Methodology. The assessment team must be formed and decide how to proceed. Items to consider should include:
    1. Organization of the assessment team. The team must have a person designated as the project director. It must also be broad based, drawing its participants from areas such as court executives, clerks of court, information system specialists and other consultants and court managers as required, e.g., budget, personnel, or forms design specialists. Once the assessment team gains a substantial familiarity with the cultural setting in which it is working, much of the initial assessment will focus on the administrative structure arid resources of the legal system. The inclusion of judicial officers may or may not be essential at this stage of the process, arid should depend on their unique qualifications and the circumstances of the particular project. The inclusion of judicial officers will give the assessment effort a higher visibility and provide enhanced entree.
    2. Site visits-when, how many, how long, by whom.
    3. Focus group--contact representative members of the bench, the bar, appropriate Ministries such as the Ministry of Justice (MOJ), and policy makers, police, penal, budget officials, human rights organizations, and other relevant entities.
    4. Interviews-schedule interviews with appropriate representatives from the focus groups, being sure to include judicial administrative personnel and other appropriate personnel involved in resource allocation issues.
    5. Presentations--inform those who need to know what you're doing and why, e.g., MOJ, U.S. Embassy (USE), U.S. Agency for International Development (USAID), U.S. military commanders (if applicable), appropriate nongovernment organizations or private volunteer organization is (NGO's/PVO's), and private groups.
    6. Surveys determine what information is sought arid to whom the surveys should be sent. Evaluate whether surveys are suitable or reliable for your purpose.
    7. Background research--learn as much as you can about the country, its culture, and legal system before you hit the "field." Cultural sensitivity is a must.
    8. Support--who is supporting the assessment team? Special provisions may be necessary for security, housing, food, transportation, secretarial support, and an "entree" to the system. In many countries, translation support will be essential; regular translators are often adequate, but MOJ personnel may be required for more specific legal translation support.

  2. Legal Framework. What are the historical and theoretical underpinnings for the legal system?

    1. History-generally, how did we get to where we are today? What law established the courts or the MOJ? Is it still in effect, or is some further effect or authorizing law needed? Is the judicial system unified, or do separate systems either overlap or perform separate functions?
    2. Basic substantive law.
      1. Constitution.
      2. Common law, Napoleonic civil law, or other tradition.
      3. Written law.
        1. Statutory.
        2. Codes--commercial, criminal, civil.
        3. Case law.
        4. Religious/cultural traditional law, e.g., the Sharia, in Moslem countries.
        5. Special "personal" law that deals with family issues.
      4. Availability of English translations.
      5. Does the system have a counterpart to precedent, res judicata, or stare decisis?

    3. Procedural law/rules of court--do they exist separately? Uniformly? Published?
    4. Martial law--does the host nation provide for it, and if so, how is it declared? What structure arid law applies if it is implemented?
    5. Political/security crimes--does this category exist arid if so, how is this aspect of the law handled? Does the central government retain political control over judges in these or other cases?
    6. Location of the law cases, statutes, regulations.
      1. Where located:
        1. Courthouse.
        2. Law libraries.
        3. Personal legal materials of jurists.
        4. Central facility, e.g., MOJ or branches of it or other ministries.
      2. Availability in:
        1. English.
        2. Language of host nation.
      3. Availability to:
        1. Lawyers.
        2. Litigants.
        3. Public generally.
        4. Government.

        Note: Is a massive effort needed to reproduce the law so that attorneys, judges, and the populace have more ready access to it?

      4. Depositories for case records and decisions.
      5. Index system of cases.
      6. Reporter system.
      7. Citation system.
    7. Applicable law--the law of the host nation may be in the process of change and, if so, this will affect the implementation of the law. Determine what law is being applied--the old, present, or new law--and what--future expectations are.
    8. Conclusion/recommendations.

  3. Judicial Officers and the Structure of Administration.

    1. Background. Ascertain the specific history of the role and relative position of judges in this legal system. Are they respected? Are they viewed as impartial or as tools of the political process?
    2. Organization.
      1. The judiciary may be dependent upon the Ministry of Justice or other ministry of the government for its routine support and/or policy guidance. If so, information about that ministry is required, such as:
        1. Name of ministry and its function, its head, and status in government (cabinet officer?). What law authorized it?
        2. Organizational structure of the MOJ.
          1. Separate prosecutorial/judicial divisions.
          2. Duties.
          3. Key personnel.
        3. Relationship between ministry and courts, i.e., are the courts subordinate to the Ministry?
        4. Jurisdiction of Ministry.
        5. Selection and disciplinary authority of ministry over judges and its' own employees.
        6. Location of the ministry and its various branches, regional arid local.
        7. Influence of the ministry over the courts' decision making.
        8. Policy making authority such as administering a judicial council or controlling it.
      2. The Judiciary may be independent and separate from any ministry. If the Judiciary is generally independent, or even if it is tied to the MOJ, it may have a distinct governance structure to administer its policy and administration.
        1. Ascertain the hierarchy for both judicial and administrative duties. There could be a chief justice, a chancellor, a chief administrative judge, chief judges, an administrative director, or similarly titled officials. Determine their selection process and duties.
        2. There may also be a governing council, often called Judicial Council, for the court system and/or within each court. Determine who sits on it and their powers. (Or if judicial system is administered by MOJ, is there a Judicial Council within the Ministry and how is it organized?) To be most effective, a Judicial Council may require membership or participation at some level by non- judicial officers such as MOJ personnel, bar leaders, law school deans, or professors.

          Note: Many countries may have a governance structure radically different from our concepts, for example, MOJ control of the judiciary. Be very cautious and sensitive to suggesting radical changes in governance.

        3. A court may have subordinate judicial officials, e.g., magistrates, or specialized judges.
        4. Clerks of court may be the chief administrative officers of a court, handle modest judicial duties, and even direct and formulate the activities of the court.
        5. A centralized administrative entity may exist upon which the courts rely for administrative support or training and research. It will be critical to understand its function, structure, and capability.
      3. Many levels of courts probably exist: justice of the peace, small claims, traffic, religious, tribal administrative, misdemeanor, trial courts, appellate courts, a supreme court, a constitutional court, or a court of cassation. Very important to understand the relationship between the various levels arid their relationship to the government generally, e.g. are there separate local national courts? Do the rural "hamlets" have courts or their equivalent? Determine the number of courts, judges, and administrative personnel at all levels arid their location.
      4. Determine the jurisdiction of the various courts both in terms of geographic areas and type of case they handle.
      5. Can the judiciary declare an act of another branch of the government unconstitutional? Is this a process that is recognized and followed by the other branches?
      6. Ascertain exactly who provides and how the judiciary receives resources, e.g., budget, personnel, facilities, security.
      7. Determine the authority of the judiciary to impose restrictions on the bar, e.g., where and how lawyers may practice.
    3. Judicial selection, staffing, and removal patterns.
      1. Selection process of judges--elected or appointed. When elected? How appointed? For what term?
      2. Criteria for quantity of judicial resources. Is there a workload formula or other standard-political, academic, or ethnic?
      3. Will existing judicial and administrative officials remain in office and functioning while the review arid restructuring is occurring? Determine the availability and suitability for future service.
      4. What is the removal disciplinary process for judges and other key judicial administrative officials?
    4. Operations. Review each level of court operations in areas such as:
      1. Pre-trial/case management procedures.
      2. Trial settings.
      3. Calendaring.
      4. Sentencing/alternative sentencing/penalties
      5. Information system functions for the collection, indexing, and publication of decisions and rulings.
      6. Jury issues if applicable.
      7. Release arid distribution procedures for court judgments and opinions.
      8. Alternative dispute resolution systems such as arbitration or mediation. To the degree that disputes can be settled easily, quickly and in an atmosphere of fairness, it should be encouraged. A "Neighborhood Justice Center" concept where simple disputes are resolved locally arid informally by a respected figure without the need for a court process of extensive record keeping might be considered.
      9. Land records retention arid security. (Critical that they be maintained and secured.)
    5. Training.
      1. Determine if the judges are traditionally law school graduates or otherwise trained. Would further training be helpful or even essential?
      2. Determine what training programs are in place for the various levels of judicial and administrative officials and whether trainers are available.
    6. Relationships/needs-what is the operating procedure and relationship between the courts arid the:
      1. Prosecutors.
      2. Defenders (public or private).
      3. Police.
      4. Court security officers.
      5. Prison officials.
      6. The bar.
      7. Humanitarian entities/NGO's/PVO's.
    7. Conclusions/Recommendations.

  4. Court Administration.

    1. Background.
    2. Organization.
      1. At each level of court, who are the administrative personnel and what are their structure and duties?
        1. Personnel:
          1. total personnel and their ratio to judges or cases.
          2. types of personnel/duties, e.g. clerk of court, lesser clerks, personnel or budget specialists, court reporters, interpreters.
          3. supervision--what's the chain? Do the judges direct court employees or is this a function controlled by the chiefs court administrators?
          4. Training-can the personnel perform their duties and what options are available to get them training?
      2. If a central administrative organization either for each level of court or for the system as a whole (such as the AOUSC in our system) exists, understand the administrative apparatus in some detail. A national administrative entity, depending on the resources and sophistication of the legal system and country, may have a central entity with personnel to support functions such as:
        1. Automation and technology.
        2. Finance/budget.
        3. Human resources.
        4. Statistics.
        5. Special offices for identified areas such as:
          1. Defenders.
          2. Rules support.
          3. Judicial needs.
          4. Administrative needs arid policy.
        6. Facilities, security, and administrative services.
        7. Miscellaneous other support staff to assist the governance structures, develop policy, or conduct liaison with other ministries or the legislative body of the host nation government.
      3. What role does the MOJ play?
    3. Functions/services. How do the support personnel perform the following functions:
      1. Operations-notices/summon/warrants. How are judgements or orders enforced? Who is notified?
      2. Records such as:
        1. papers, filing system
        2. registers
        3. accounts
        4. calendar for cases and events
        5. process and schedule for the retention/forwarding/or destruction of documents

      OBSERVATION: Keep it simple, but definitely keep records, especially at the lowest levels--it is the basis for everything.

    4. Public relations. Determines who handles the public relations function on behalf of the judicial system. Very important to have a thoughtful, possibly multi-lingual spokesperson(s) familiar with courts and media needs. This becomes essential if the Western press are interested in the country's judicial system and giving great attention to human rights issues.
    5. Conclusions/recommendations.

  5. Judicial System Resources Inventory.

    1. Research capabilities. Are there libraries or other research resources? Are they available in chambers or for the bar and public use? Are there law schools?
    2. Forms/files/paper. Keep it simple. Design forms for multiple purposes. Have important files and files relating to land ownership in a secure place or at least in fire proof filing cabinets.
    3. Equipment-types arid use. Is rudimentary systems the most important piece of equipment may well be a basic copier or a manual typewriter. Something that is low maintenance and dependable. Computers may only be necessary at a Central administration point. Key factors when considering the suitable level of equipment and automation are: expected volume or complexity of cases, technical support capability for the system, and software issues relative to language compatibility.
    4. Judicial Facilities. What exists and what will it take to make the facilities functional?
      1. Location.
      2. Type--Concrete block? Wood? Stand alone or part of a larger facility?
      3. Suitability for use.
      4. Cost of repair/availability of labor and material.
      5. Prioritize needs for facilities.
      6. Be in contact with engineers/architects regarding restoration of facilities. If the U.S. Corps of Engineers has personnel in the country, they may be particularly helpful.
      7. Availability of facilities to rent.
    5. Judicial information systems/criminal justice information system. Statistical information on what is happening in the courts should be gathered so that future planning and adjustments can be made with a knowledge about what is occurring.
    6. Conclusions/recommendations.

  6. Miscellaneous Justice Issues.

    Depending on the circumstances, it might be helpful in assessing the judicial system to have a complete understanding of the justice system apparatus such as the Ministry of Justice, Ministry of the Interior, Ministry of Security, Ministry of Defense, police, penal system, prosecutor and the bar. For example:

    1. Police/prosecutors.
      1. Number.
      2. Location.
      3. Status.
        1. Function.
        2. Training level.
        3. Equipped.
        4. Professionalism.
        5. Selection/removal process.
      4. Determine their priorities and whether they make many arrests that lead to court activity. Are they a mere presence in community? Do they influence policy or control certain groups in the community?
      5. Determine whether the arrests that are made are on simple issues or complex cases.
      6. What control do the courts have over the police and prosecutors?
      7. Need to monitor for human rights abuse?
    2. Prisons.
      1. Number.
      2. Location.
      3. Status, i.e. capacity, security level, accessibility.
      4. Need to monitor for human rights abuse. ICRC representatives may play a special role here.
    3. The bar.
      1. What is the size and organization of the bar?
      2. Are the lawyers graduates of law schools? Is a bar exam or other prerequisite required for a lawyer to practice?
      3. Is the bar loyal to one political faction or another? Do they have a traditional role or position on major issues relating to the legal system? Are they community leaders?
      4. Are there bar associations? What function do or can they play?
      5. Is there any form of legal aid? Who appoints defense counsel if they are provided in certain criminal matters-judge or MOJ?

  7. Further Observations.

    1. Make the working judicial system highly visible. It will be a symbol of government stability and give a sense of justice and hope. Display flags and other trappings of authority and dignity.
    2. Make the assessment as broad as possible. Identify what's there arid working. Make a complete inventory of what you have and what you need.
    3. It all starts at the local courts--this is where records are created and most "justice" occurs. Concentrate on the lowest levels of justice and work your way up.
    4. Re records--keep them! Necessary to at least have summary records of criminal cases which can be kept or sent to a central depository. Land and other property rights records are critical-keep them secure.
    5. Security needs are probably not high in courts handling petty offenses and traffic matters. Security needs grow as courts become those of general jurisdiction handling criminal matters. Holding cells may be a necessity for defendants:
    6. Equipment should be kept simple:
      • manual typewriters
      • basic copier essential
      • fireproof, locking file cabinets
      • fill-in-the-blank forms/files
      • registry books
      • basic office supplies
      • More sophisticated automation systems are probably only justified by high volume and if a technical support system exists to support them.
    7. Create some form of governing Judicial Council at one or more levels. Judges usually will take charge and make things work. They generally have a strong allegiance to a legal system and its concepts. They will understand their charge, create an agenda, and make it work.
    8. Advisors/consultants: - Advise-don't make decisions for your hosts. - Precise agreement needed on scope of work and support. Look around-see if what is in place works. Maybe you don't have to create new wheels.
    9. Any system starting up will need the services of on-the-spot consultants for at least six months. It is prudent to plan to have 3- 4 people with differing court administration specialties under contract working as a team.
    10. If U.S. model court system were to be looked upon as the model, it might be best to look at local and state systems in the U.S. that have size, case, and resource capabilities similar to that of the host nation. The judges, officials and employees of the federal system can be of great help, but they are working within a huge, complicated system that may have de minimus application to the needs of a third world country. Always keep in mind that the Anglo-American legal model is probably foreign to the host nation unless the British Empire touched their past. Don't force feed our system, but rather, expose them to how we might perform a function-it might fit!
    11. Much depends on the political/legal tradition of the country. Get a feel for people's expectations and reactions to the justice system and courts. For example, do people seek recourse to justice in the courts or elsewhere? Do litigants abide by decisions of the court? Do the judges receive sufficient pay to give them status and insulate them from undue influence by monied parties or the government? Are human rights generally respected by courts, prosecutors, police, military? Are there protections against arbitrary actions by courts, prosecutors, police or military?
    12. From the data gathered in the assessment, there are at least four areas that will need to be addressed by specific plans:
      • law and procedure
      • governance/court structure
      • operation
      • automation/technology/information systems

    Conclusion: The establishment of a fair and functioning justice system may well be the central underpinning for an emerging democratic country. A system in which legal differences can be fairly and efficiently administered will gain the support of the people and redound to the benefit of all governing officials. The justice system has many components. This paper has focused on the judicial portion of the broader justice system but has touched on the role and organization of the prosecutorial, police, and penal aspects, as well. In the final analysis, all the components must work and blend together, but the judiciary, given sufficient independence and resources, can act as the force that gives the system integrity and guides and holds the entire system together.


    ANNEX VIII: Guidelines for Judicial Sector Assessment (Waleed Malik, World Bank)

    [This is one of several such guidelines prepared by Mr. Malik for assessments in Pakistan, Egypt, Venezuela, El Salvador and Guatemala. The results of the assessments that were conducted did fill several volumes. However, as an inventory, not a performance checklist, they are good examples of what is needed]

    PAKISTAN - COMMERCIAL JUDICIAL SYSTEM

    I. OVERVIEW

    JUDICIAL REFORM AND DEVELOPMENT

    • What are the priorities for economic and social development in Pakistan? (description of the economic context-GATT, other agreements-with focus on the major economic development issues and planned strategies of economic reform.]
    • What is the importance and role of judicial reform in the development strategy for Pakistan?
    • What are some of the links between judicial reform and private and social sector development? (description of the main links between the establishment and guarantee of property rights and economic development. Anecdotal evidence based on survey results or opinion polls, media reviews, interviews, observation etc.)
    • How does the private sector access the judicial system? (Based on survey results, media reviews, interviews, discussion during the seminar etc.)
    • What is the likely result of judicial reform in Pakistan? (description of possible sector specific performance indicators to monitor progress and evaluate the impact of reform.)
    • Who supports or opposes judicial reform? (description of interest groups and potential risks)

    Governance framework

    • What are the different organs of the government? (description of the constitutional basis, role, size, and functional responsibilities of the three branches of government-executive, legislative, and judicial)

    Independence framework.

    • What are the constitutional and other legal safeguards guaranteeing the independence of the judicial branch? (description of laws, decrees, and other safeguards, such as the budget process ensuring financial autonomy, and past and recent efforts to strengthen the independence of judges)

    Organizational framework.

    • What is the organization of the judicial sector (public and private)? (description of institutional characteristics of the different components of the sector with focus on:
      the constitutional basis;
      the jurisdiction and functions
      and
      the quantitative profile including:
      classification and number of staff(such as judges, attorneys, specialists or experts, support staff, other employees) including gender classification);
      budget information (such as total expenditures, expenditure on payroll, capital investments, and other categories);
      workloads (for the court systemdata such as number of cases-received, decided, or pending by type of case (e.g. civil, commercial, penal, labor), for the ADR center data such as cases adjudicated, types of cases and their values, fees charged etc., for the legal aid programs data such as annual expenditures, number of persons receiving the aid etc., for the prosecution number of cases received, processed, and pending; for the prison system number under detention, sentenced, pending trial etc., for the law school number of law students, gender classification etc.)

    Public Sector Elements:

    • Ministry of Law and Parlimentary Affairs
    • Supreme Court of Pakistan
    • High Court of Punjab (and other provinces),Session Courts, Civil Courts
    • Magistrate system
    • Attorney General's Office (public prosecutor's at federal and provincial levels)
    • Specialized courts such as Banking court, etc.

    Public/Private Sector Elements:

    • Bar associations
    • Law Schools
    • Law firms
    • Non-governmental organizations (NGOs)-such as legal aid agencies and agencies that provide assistance programs for the general public (in particular the poor);
    • Other commissions/associations-such as American-Pakistan Chamber of Commerce, law commissions, human rights commissions, judges' commissions, industrial dispute commissions, judicial staff associations, small business associations, and associations of traders

    Inventory of Past Judicial Reform Efforts.

    • What has been the experience of judicial reform activities in the past?
    • Have these activities been supported by IFIs? (Description and time-line of previous or ongoing efforts and their impact)

    II. WHO USES THE COURTS? QUATITATIVE AND QUALITATIVE ANALYSIS
    Time series (demand and supply analysis) (statistical annex)

    User surveys and focus groups (statistical annex)

    Enforcement of court decisions

    II. JUDICIAL REFORM ELEMENTS

    A. PROCEDURAL/LEGAL REFORMContext-definition, problems, experience

    • What constitutes legal reforms? (brief description of the following areas of the legal system [with focus on commercial reform]:
    • Constitutional law - Constitutional reform that may have an impact on the administration of justice?
    • Civil code and procedure/commercial procedure
    • Criminal code and procedure
    • Organic law of the judiciary
    • Administrative law
    • Company law
    • Bankruptcy code
    • Notaries law
    • Commercial registries law
    • Environmental law
    • Labor law
    • Foreign investment law
    • Intellectual property law
    • Tax law
    • Other laws codes etc.)

    What are the main problems in each of the above areas?

    What measures have been taken in the past to improve each of the above areas?

    Recommendations-measures, implementation strategy, cost

    • What are the recommended reforms to alleviate the above mentioned problems?
    • What is the recommended implementation strategy?
    • What international experiences can facilitate design and implementation of reforms?
    • What is the estimated cost of reform?

    B. ADMINISTRATION OF JUSTICE

    What aspects constitute the administration of justice?

    Judicial Administration

    Context-definition, problems, experience

    • What are the arrangements for judicial administration? (description of the administrative structure of the supreme court-or other entity responsible for administering the court system-the level of decentralization; inter and intra institution coordination; oversight responsibility and capacity.]
    • What are the main problems in each of the above areas?
    • What measures have been taken in the past to improve each of the above areas?

    Recommendations-measures, implementation strategy, cost.

    • What are the recommended reforms to alleviate the above mentioned problems?
    • What is the recommended implementation strategy?
    • What international experiences can facilitate design and implementation of reforms?
    • What is the estimated cost of reform?

    Court Administration

    Context-definition, problems, experiences.

    • How are the courts organized at the micro level? (description of: organization, configuration, and staffing; judicial and administrative procedures; case flow management-case loads, case assignment, docketing and registration, archives, controls, and case information release; notification; accounting-voucher and invoice payment-system; media coordination; support systems; and public access)
    • What are the main problems in each of the above areas?
    • What measures have been taken in the past to improve each of the above areas?

    Recommendations-measures, implementation strategy, cost.

    • What are the recommended reforms to alleviate the above mentioned problems?
    • What is the recommended implementation strategy?
    • What international experiences can facilitate design and implementation of reforms?
    • What is the estimated cost of reform?

    Judiciary Finance and Budgeting

    Context-definition, problems, experiences.

    Macroeconomic Context

    • Which agencies are responsible for making assessments and forecasts on both the national and entity levels of the judiciary?
    • What are the major problems with these agencies?
    • What is the link-formally and in practice-between these assessments and the preparation of budgets and other programs?
    • What percentage (amount)of the national budget is spent on the judiciary (that is, the Supreme Court)?
    • How has the allocation to the judiciary changed over the past years?
    • Who awards the annual budget?
    • How can independence of the judiciary be ensured in the budgetary process?

    Budget Planning and Evaluation
    Evaluation of Planning

    • Who within the Supreme Court is responsible for budget preparation? (Is there an office concerned with analyzing court operations in terms of their fiscal objectives?)
    • What is the budgetary cycle? (Is the time available for completing the budget document sufficient for the complex requirements of negotiating and incorporating plans?)
    • What is the degree of participation between the different court levels (for example, between the first instance courts and the superior courts) in the annual budget preparation process?
    • What kind of budgetary system is in operation now (none, line-item, programs, and so on)? How amenable would it be to introduce new procedures?

    Evaluation of Budgeting

    • Is there a rolling annual budget linked to a multi-year program? (Why or why not?)
    • Are budget variances (actual minus estimated) considered in projecting future budgetary needs?
    • Are current budget levels adequate to support modernization plans? (if not, what additional recurrent expenditures-for example, for courtroom supplies and building maintenance-would be needed to support modernization plans and institutional building?
    • Who within the Supreme Court is responsible for budget preparation? (Is there an office concerned with analyzng court operations in terms of their fiscal objectives?)
    • How are expenditures prepared? (Is the process essentially incremental? What is the process by which new courts are actually established and budgeted?)
    • What information is available to the budget office-or other office with budget preparation responsibility-on the number of judges and judicial staff needed for each court, on the activities of judges and judicial staff, and on the price/wage relationship for wage expenditures?

    Classification Of Budget Items

    • How useful is the current classification? (What is the definition of individual budget accounts-for example, courtroom supplies, building maintenance, rent, utilities, judges travel, special courts? What can be done to improve estimation, monitoring and control?)
    • What is the definition of capital expenditures (if any)? What new budget accounts would be needed to monitor and control computerization and automated expenditure programs?

    Budget Implementation and Control of Expenditures

    • What is the administrative capacity of individual courts for budget execution and control of expenditures?
    • What are the procedures for ordering and controlling actual payments? (What degree of autonomy do individual and regional courts have in the expenditure of courtroom supplies and facilities maintenance?)
    • To what extent are existing rules and procedures, even if adequate in theory, by-passed in practice? (Why is this done? What can be done to improve adherence to good practice?)
    • Does the central budget office of the Supreme Court have necessary information to control the composition and total level of spending? (What institutional, procedural, and manpower changes are required to make such controls effective?)
    • What are the main problems in each of the above areas? ®What measures have been taken in the past to improve each of the above areas?

    Recommendations-measures, implementation strategy, cost.

    • What are the recommended reforms to alleviate the above mentioned problems?
    • What is the recommended implementation strategy?
    • What international experiences can facilitate design and implementation of reforms?
    • What is the estimated cost of reform?

    Strategy Planning and Statistics

    Context-definition, problems, experiences.

    • Is there a planning function within the Supreme Court? (Is it adequately coordinated or fragmented? What is the capacity of the Supreme court to prepare short-term, medium-term, and long-term investment plans?)

    Quantitative Indicators

    • Are judicial statistics available? (What is the quality of these statistics?)

    Storage and Destruction of Documents

    • What is the policy and arrangement for the storage and destruction of case files? (Are case files and documents being retained indefinitely?)
    • What are the main problems in each of the above areas?
    • What measures have been taken in the past to improve each of the above areas?

    Recommendations-measures, implementation strategy, cost.

    • What are the recommended reforms to alleviate the above mentioned problems?
    • What is the recommended implementation strategy?
    • What international experiences can facilitate design and implementation of reforms?
    • What is the estimated cost of reform?

    Human Resources

    Context-definition, problems, experiences.

    • Who is responsible for human resource management in the judiciary?
    • How is the information collected on pay and employment aspects of the judiciary? (What information is available on the levels of employment, ratios of salary compression, ratios of support staff to total employees, turnover in the judicial and managerial ranks, and ratios of personnel expenditures to total expenditure.
    • How is recruitment,promotion, evaluation conducted in the judiciary?
    • What is the system of performance evaluation? (Are there developed systems for rewarding and disciplining staff?)
    • Are judicial career employment polices and procedures similar to those of the executive branch?
    • What types of systems are in place to facilitate human resource planning and control?
    • What is the system of personnel records?
    • What are the main problems in each of the above areas?
    • What measures have been taken in the past to improve each of the above areas?

    Recommendations-measures, implementation strategy, cost.

    • What are the recommended reforms to alleviate the above mentioned problems?
    • What is the recommended implementation strategy?
    • What international experiences can facilitate design and implementation of reforms?
    • What is the estimated cost of reform?

    Staff Training

    Context-definition, problems, experiences.

    • What are the arrangements for training staff?
    • What is the capacity of training institutions in the country?
    • What is the possible role of the judicial school?
    • What are the main problems in each of the above areas?
    • What measures have been taken in the past to improve each of the above areas?

    Recommendations-measures, implementation strategy, cost.

    • What are the recommended reforms to alleviate the above mentioned problems?
    • What is the recommended implementation strategy?
    • What international experiences can facilitate design and implementation of reforms?
    • What is the estimated cost of reform?

    Information Management

    Context-definition, problems, experiences.

    • Who is responsible for generating management and other information?
    • Has there been any studies on the use of information technology in administrative procedures or case management?
    • Are databases of laws available in the judicial sector? (Are such databases available in the private sector? What is the likely benefit of providing such a database?)
    • What is the present condition of law libraries within the judiciary and the private sector? (Are reference materials available in courts?)
    • What are the main problems in each of the above areas?
    • What measures have been taken in the past to improve each of the above areas?

    Recommendations-measures, implementation strategy, cost.

    • What are the recommended reforms to alleviate the above mentioned problems?
    • What is the recommended implementation strategy?
    • What international experiences can facilitate design and implementation of reforms?
    • What is the estimated cost of reform?

    Physical Facilities

    Context-definition, problems, experiences.

    • Who is responsible for the provision of physical facilities-new courtrooms, space planning, maintenance, remodeling? (What specific role do national, regional, and municipal governments perform in this matter?)
    • Is there an inventory of court buildings (total space in use for different types of courts and judicial offices, condition of buildings, maintenance plans, space rented from private owners, space rented from government agencies, and the like)?
    • Are there any guidelines for the use of space and standard design in different types of courts?
    • What are the safely and security systems installed in judicial buildings?
    • Is there a new construction plan for courts and other judicial offices?
    • What is the administrative capacity of individual courts to upkeep court facilities?
    • What are the main problems in each of the above areas?
    • What measures have been taken in the past to improve each of the above areas?

    Recommendations-measures, implementation strategy, cost.

    • What are the recommended reforms to alleviate the above mentioned problems?
    • What is the recommended implementation strategy?
    • What international experiences can facilitate design and implementation of reforms?
    • What is the estimated cost of reform?

    C. JUDGES

    Context-definition, problems, experiences.

    • How many judges are serving the court system? What is there distribution by type and level of court?
    • What is the quality of judges? (What are some of the characteristics of good judges? What are the measurement criteria for assessing the quality of judges? Are many judges perceived to be corrupt?)
    • How are judges appointed? (Does this promote competition and ensure transparency? What are their tenures of office?)
    • Are salaries of judges adequate? (How do they compare with salaries of the private sector and lawyers in private practice? What are the other incentives for performance?)
    • What are the disciplining procedures for judges? (Can judges be removed from office? How many judges have been removed in the last ten years?)
    • What are the main problems in each of the above areas?
    • What measures have been taken in the past to improve each of the above areas? Recommendations-measures, implementation strategy, cost.
    • What are the recommended reforms to alleviate the above mentioned problems?
    • What is the recommended implementation strategy?
    • What international experiences can facilitate design and implementation of reforms?
    • What is the estimated cost of reform?

    D. ALTERNATIVE DISPUTE RESOLUTION MECHANISMS
    Context-definition, problems, experiences.

    • What constitutes alternative dispute resolution? (description of mechanisms in court-annexed and private procedures)
    • What centers are providing ADR services? Is their institutional capacity adequate? If not what can be done to improve these centers?
    • Are there formal mechanisms within the judicial system to refer legal conflicts for alternative resolution?
    • If mechanisms exist, how are they referred?
    • If mechanisms exist, who pays for it?
    • Are the decisions arrived at through the following means binding: arbitration? mediation? conciliation?
    • For what matters is alternative resolution allowed?
    • What are the main problems in each of the above areas?
    • What measures have been taken in the past to improve each of the above areas?

    Recommendations-measures, implementation strategy, cost.

    • What are the recommended reforms to alleviate the above mentioned problems?
    • What is the recommended implementation strategy?
    • What international experiences can facilitate design and implementation of reforms?
    • What is the estimated cost of reform?

    E. ACCESS TO JUSTICE

    Context-definition, problems, experiences.

    • What constitutes access to justice? (description of access to justice in connection with time, cost, and availability)
    • What are the different types of legal aid programs? (description of programs with focus on quality and service capacity)
    • Are any NGOs performing legal aid functions-in addition to those provided by the government?
    • What are the main problems in each of the above areas?
    • What measures have been taken in the past to improve each of the above areas?

    Recommendations-measures, implementation strategy, cost.

    • What are the recommended reforms to alleviate the above mentioned problems?
    • What is the recommended implementation strategy?
    • What international experiences can facilitate design and implementation of reforms?
    • What is the estimated cost of reform?

    F. LEGAL PROFESSION

    Context-definition, problems, experiences.

    • What are the characteristics of a legal profession?
    • What is the role of bar associations in reform?
    • How many lawyers are there in the whole Republic?
    • How many lawyers are there for every 100,000 inhabitants? -How many lawyers are there in each region (or province)?
    • How many female lawyers are there--and what is the percentage of female lawyers in the nation?
    • How many unions are there?
    • How many federations of unions are there?
    • Where are unions and federations located, by city and street address?
    • What is the number and percentage of lawyers that belong to unions?
    • Are the lawyers required to be members of the unions or of any other associations?
    • Can the unions or federations sanction the lawyers?
    • What type of sanctions can the unions, associations and/or federations impose?
    • What are the services that the unions provide to their member?
    • What requirements do unions have in order for lawyers to continue to be members? What type, duration, periods and quality of do the unions give to their members? Are members required to take any courses? If yes, what is the minimum that the lawyers/members have to attend the following: courses, seminars, conferences, and other mediums of the lawyer unions or federations?
    • What are the main problems in each of the above areas?

    Recommendations-measures, implementation strategy, cost.

    • What are the recommended reforms to alleviate the above mentioned problems?
    • What is the recommended implementation strategy?
    • What international experiences can facilitate design and implementation of reforms?
    • What is the estimated cost of reform?

    G. JUDICIAL TRAINING

    Context-definition, problems, experiences.

    • Who is responsible for providing training to judges and staff?
    • What are the elements of judicial training?
    • What are the main problems in each of the above areas?
    • What measures have been taken in the past to improve each of the above areas? Recommendations-measures, implementation strategy, cost.
    • What are the recommended reforms to alleviate the above mentioned problems?
    • What is the recommended implementation strategy?
    • What international experiences can facilitate design and implementation of reforms?
    • What is the estimated cost of reform?

    H. LEGAL EDUCATION

    Context-definition, problems, experiences.

    • What constitutes legal education?
    • What are some of the famous law schools?
    • How many years of law school is required to receive a law degree?
    • Who confers the degree?
    • Are there post-graduate law studies?
    • How many years of post-graduate law school is required to receive a doctoral degree?
    • Who confers the doctoral degree?
    • What is the minimum degree required to be named a judge in the different courts? (such as administrative court, appeal court, ordinary court, other courts)
    • What is required to be a notary public?
    • What entities are responsible for establishing the law school curriculum?
    • How many students enroll in law school each year? In 1993-94?
    • What percentage of enrolling law students are female?
    • What percentage of law students who enroll eventually graduate?

    Recommendations-measures, implementation strategy, cost.

    • What are the recommended reforms to alleviate the above mentioned problems?
    • What is the recommended implementation strategy?
    • What international experiences can facilitate design and implementation of reforms?
    • What is the estimated cost of reform?

    IV. ACTION PLAN FOR JUDICIAL REFORM - PROPOSED NEXT STEPS

    (recommendations and sequencing organized as follows:

    Matrix 1 columns: overall objective, recommendation, priority assignment and timing, responsibility;
    Matrix 2 columns: overall objective, specific objective, quantitative indicators, expected impact, beneficiary or affected party; and
    Matrix 3 columns: specific objective, activity detail, resource required, estimated cost, implementation responsibility.


    ANNEX IX: A Note on the Florida International University (FIU)/ ILANUD Inventories

    To avoid filling my list of references with these publications, I am giving them an annex. The principal assessments (in Costa Rica, Honduras, El Salvador, Guatemala, and Panama) were contracted by USAID and done in the late 1980's The format was later applied by members of the original team to shorter assessments, usually with USAID sponsorship, in Nicaragua, Ecuador, and Bolivia.

    Work under most of these assessments was directed by the FIU/CAJ staff, headed by Professor Luis Salas. ILANUD was a party to many of the assessments, but it had no permanent staff assigned to them, and most of the direct participants have since left the institute.

    The studies were true inventories and far exceed in both quantity and breadth of information what the working group wants in a checklist. However, they are an invaluable reference for anyone attempting this kind of global assessment, and I have often recommended that those writing terms of reference for this kind of work review the table of contents of any of the works.

    The initial studies, executive summaries and some spin off work are most easily available through FIU/CAJ and Professor Salas. USAID may have copies in its central information office, CDIE or in the country mission where each study was conducted. As noted, a series of short publications, based on this work, was subsequently published privately. I am listing them below.

    Chinchilla, Laura and David Schodt, The Administration of Justice in Ecuador. Miami: Florida International University, Center for the Administration of Justice, 1993.

    Gamara, Eduardo, The System of Justice in Boliva; an Institutional Analysis. Miami: Florida International University, Center for the Administration of Justice, 1991.

    Rico, José María, Los consejos de la magistratura: análisis crítico y perspectivas para América Latina. Miami: Florida International University Center for the Administration of Justice, 1993.

    Rico, José Me., et al., La justicia penal en Costa Rica. San Jose, Costa Rica: EDUCA, 1993.

    Salas, Luis and José María Rico, La justicia penal en Guatemala. San Jose, Costa Rica: EDUCA, 1989.

    Salas, Luis and Jose Maria Rico, Carrera judicial en America Latina. Florida International University, Center for the Administration of Justice, 1993.

    Salas, Luis and Jose Maria Rico,, La justicia penal en Honduras. San Jose, Costa Rica: EDUCA, 1989

    Solis, Luis G., and Richard J. Wilson, Political Transition and the Administration of Justice in Nicaragua. Miami: Florida International University, Center for the Administration of Justice, 1991.

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