There is widespread agreement that justice sector reform is long overdue. But despite the many reports authored by distinguished individuals and bodies such as the National Judicial Policy Making Committee’s (NJPMC) National Judicial Policy 2009, the Senate’s Committee of the Whole, the NACTA recommendations formulated pursuant to the National Action Plan, and many other efforts, we are still struggling to progress from a justice system that was designed for a by-gone era and is clearly struggling to cope.
So why have we not made progress? And what are the lessons to be learned.
Firstly, weak political will for reform. A review of the historical budgetary allocations reveals both the priority allocated to the rule of law sector and the individual justice and security organisations, and from their expenditures precisely what individual justice organisations were prioritising. It is tempting to conclude that the justice and security sector has been deliberately kept less developed and incompetent.
But unlike earlier governments, PTI has come into power on the basis of change — the promise of a New Pakistan (Naya Pakistan). Its manifesto promises to transform governance including strengthening accountability, depoliticising the police, criminal justice sector and civil service reforms. As usual, taskforces have been formed to make recommendations. We may therefore with some caution presume that political will exists to take the difficult decisions, overcome bureaucratic resistance and resist vested interests to prioritise reform. In any event, on the face of it, the PTI government is the most bankable option that we have.
The second trap is the narrow focus on law. Whenever we talk about reform, the legal mind — judges, lawyers — tends towards legislation for reform. Laws are of course important and we need to ensure that laws are fair and based on current knowledge, learning and citizens’ needs. And where legal frameworks are not serving the purpose, laws need to be reformed as repeatedly urged by the Mian Saqib Nisar CJP. In our case there is no doubt that we need to critically evaluate the quality, relevance and impact of our legal frameworks and update them accordingly. But legislation is only part of the challenge, arguably the easier part — the real test is to ensure effective implementation.
Third, lack of information on justice needs. Since we have never conducted a rule of law needs survey, we actually have no idea about the scale and scope of citizens’ justice and security needs that we need to plan for. Our policy and planning is very much like shooting in the dark and resources are totally unrelated to actual needs. We are thus resigned to working without the necessary rigor. We are simply content with the anecdotal, the intuitive and the “I know better approach” to reform offered by those more senior. Our reforms need to be grounded in citizens’ actual needs that are empirically assessed.
The justice sector is a multi-organisational, interdependent and complex sector. The performance of each organisation is dependent on others. Judicial performance, for example, is dependent on the effective and efficient functioning of investigations, prosecutions, prisons and the legal profession working together seamlessly
Fourth, the absence of key value factors for justice services. We also need some idea of what we are aiming to provide as acceptable quality of justice and security services. If we believe that delays should be reduced then we need to track time as a critical value factor. Other such factors might include access, cost, fairness — both procedural and substantive, impartiality, outcome and effectiveness/impact. Presently, we only collect limited raw quantitative data — the number of cases at any given time moving through individual organisations — police, prosecution, judiciary, prisons, probations and parole. There is no qualitative data and analysis. Further, there is no consolidated justice sector level data. We need to therefore develop national justice information reporting standards and system.
Fifth, strengthening organisations for implementation: Laws are implemented by organisations — and for most, the real crisis is in implementation. Our reform efforts therefore need to focus on strengthening local service delivery units and evaluating the impact of reforms, trainings and services on target communities such as the most vulnerable.
Local police stations, courts, are often the least resourced — technically, infrastructure, human and financially. They are also subject to diverse local pressures and influences, incentives and dynamics that affect service delivery that need to be factored in the reform design and implementation. Mid-level supervision and oversight functions, and senior policy and planning tiers should be supportive of local service delivery but consume significant resources. Greater focus is required on organisational development covering technical, financial, political and socio-cultural aspects. The allocation of resources also needs to be rationalised to strengthen core functions such as investigation and connect inputs with delivery through for example medium term budgetary frameworks that have supposedly been operationalised.
Sixth, the capacity challenge: Capacity deficit is a critical challenge due to which the quality of investigations, prosecutions, adjudication are weak. Professional training is outdated, ad hoc and insufficient. When costly foreign training is provided, it is lost when trainees return to the same workplace where the prevailing local organisational culture and operational practices reinforce the existing norms and patterns of behaviour+ and conduct. Trainings need to be suitably aligned with the necessary workplace practices and reforms.
For this, training organisations need to be revamped with professional trainers providing quality trainings based on current learning and methodologies that will incubate and mentor the required professional skills as per their functions and job descriptions in the organisational and workplace context. It may be that our leading management schools can be encouraged to develop suitable expertise in public sector management and governance to support the public sector trainings and service delivery.
Seventh, lack of functional specialisation: Our organisations are not designed on the basis of the required level of functional specialisation. The Police Order 2002 attempted to reorganise the police on the basis of functional specialisation but failed miserably due to departmental/bureaucratic resistance, lack of resources and absence of wider commitment to police reform. A qualitative shift is required in both organisations and trainings to create the necessary level of specialisation within the rule of law sector.
Eighth, capturing the information technology advantage: The judiciary, police and prisons are gradually introducing information technology-based solutions to enhance capacity but their application and effectiveness needs to be evaluated, coordinated and integrated functionally. The Law & Justice Commission of Pakistan’s situational analysis report, Towards a National Policy & Strategy for the Application of Information Technology in the Justice Sector (February 2016) recommended a national justice sector automation plan that covers both operations and performance analysis, and ensures a “joined-up” sector-wide approach that connects the various organisations through a single process. There has been no progress to formulate such a policy.
Ninth, another trap is, to miss the “big governance picture”: The justice sector is a multi-organisational, interdependent and complex sector. The performance of each organisation is dependent on others. Judicial performance, for example, is dependent on the effective and efficient functioning of investigations, prosecutions, prisons and the legal profession working together seamlessly. In addition to organisational strengthening, we need to therefore develop a systems-sector approach to reform that addresses both demand and supply-sides, the forward and backward linkages and feedback loops for each organisation as part of a single process.
The writer is a UK-trained lawyer, ex-Federal Secretary and worked as Senior Legal & Governance Specialist at the Asian Development Bank
Published in Daily Times, November 26th 2018.