Brining about reforms in a challenging task in any country in the world. Pakistan has struggled to bring out judicial reforms just like other developing countries. Provision of accessible, fair and reliable justice system is a basic right of citizens. Therefore, it is important to have a look at issues confronting judicial reforms. Other than insights gained into the rule of law and dispensation of justice issues due to a co-authored empirical research more than a decade ago, we refer to a key piece of literature (Siddique 2011) in addition to incorporating learning from other writings (Nasir Aslam Zahid nd; Mariana Mota 2010) in this article.
In terms of citizens’ rights, Part II of the Constitution has two chapters: chapter one has Fundamental Rights protected by the Constitution, while chapter two has Principles of Policy. The latter comprise of various socio-economic rights. Amongst other rights, the State is bound to provide “inexpensive and expeditious justice” under Article 37 (d). However, unlike the Fundamental Rights that can be enforced by approaching the courts; the Principles of Policy cannot be enforced with the help of the courts. If the PTI government is able to bring in a constitutional amendment with the help of opposition parties to make the Principles of Policy enforceable through the recourse to courts, it would add a new milestone in the legal protection of socio-economic rights.
Pakistan has been trying to reform its judicial system since the 1950s as various commissions and committees have been set up and published their reports from time to time. However, as the literature points out that any effort at achieving a piecemeal judicial reform can potentially block more comprehensive reforms in the future. Osama Siddique (2011) has given taxonomy of various approaches to judicial reforms in Pakistan ranging from the Institutional Malaise, the Efficiency Plus, the Human Capital Development, the Islamization of Law and Legal System, and last but not the least, the Judicial Activism.
In the recent past, some major donor-driven interventions have been made in the judicial reforms in Pakistan. However, those efforts have either largely provided ‘brick and mortar’ and ‘equipment purchases’ support or made such similar efforts to enhance the ‘efficiency’ of the way the courts work
There is a certain paradox in the citizens’ relationship with the justice system: on the one hand (as pointed out by someone not covered in the literature referred above), Pakistan is an over-litigated country that illustrates the fact that citizens drive some utility in approaching and using the justice system; while on the other hand, there is a strong view that the justice system does not work too well. Even when it works in certain instances, it benefits differentially citizens on the basis of their class, social networks, and wealth status. The justice system is considered slow, costly, prone to misuse and exploitation, complex and often unintelligible to the majority of litigants, even to the point of being coercive. Problems of the judicial system are further compounded due to weak regulation of the legal profession. It has been hard to reform justice system.
One of the main issues with the judicial reforms has been the overwhelming focus on the “delay reduction”, in other words an over-reliance on the role of the way the courts and judges function rather than looking into the nature of disputes and more so the structural factors that provide impetus to these disputes. Rather than a singular focus on efficiency, or lack of it, in the way courts function; there is need of a multi-disciplinary focus to analyse the underlying causes that drives litigants to courts in the first instance. There is also the need to analyse why other avenues for dispute resolution are not being systemized as alternative and credible options. The litigants often use informal dispute resolution mechanisms; however, they are also structured around the local power structures.
There is also need to critically look into the role of lawyers as both the litigants and lawyers misuse the justice system to prolong the litigation and create delays. Legal education is poor and regulation of the legal profession is weak. Hence, any judicial reform effort has to restructure the way the legal training is imparted and legal profession works. There is also less than adequate oversight of the lower trial courts by the higher courts both due to the lack of capacity and inclination. There are also the issues of the justice sector being under-resourced as well as over-burdened with huge backlog of cases and its functions marred due to corruption.
In the recent past, some major donor-driven interventions have been made in the judicial reforms in Pakistan. However, those efforts have either largely provided ‘brick and mortar’ and ‘equipment purchases’ support or made such similar efforts to enhance the ‘efficiency’ of the way the courts work. These donor-driven projects promised the sky, however, their main concern has been to augment the free ‘market economy’ and protect the ‘private businesses’ and ‘foreign investments’. Needless to say that donor-driven efforts for reforming the justice system largely failed and did not deliver.
For any future work on justice system reform, the focus needs to be on the quality of justice. Once quality of justice along the principles of impartiality and fairness is established, the rest would follow. Any future justice system reform efforts should also be indigenous. We have seen the purpose behind the donor-driven reforms has been to promote their own agendas and they failed at that too. Unless, we own the justice system reforms and institutionalize them in the way that best reflects the interests of majority of citizens of this country, they are not going to succeed. Though, the present Chief Justice might have the needed institutional legitimacy needed to push the justice sector reforms, the legal community alone cannot achieve it. It needs the buy-in and support across the societal and political divide at the larger level.
The writer has a social science | background and can be reached on Twitter @FoqiaKhan