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June 13, 2004
REVIEWS: In quest of justice
The Sustainable Development Policy Institute (SDPI) of Pakistan has become a major centre of research and debate on sustainable development, and its focus has been on the management of the environment and the conservation of national resources. A less well known aspect of its activities has been to address the problems of governance, and it has given special attention to the role of the judiciary by sponsoring research on the subject.
This book is a collection of papers by prominent scholars. Divided into three parts, the chapters cover the role expected of the judiciary, its actual performance in Pakistan and the course of action that needs to be adopted to improve the dispensation of justice.
At a time when the government is attaching importance to improving governance, the publication of this book is opportune, and its contents thought provoking.
The first article takes up the topic of accountability and judicial review and stresses the desirability of decentralization to make the judiciary more effective. After taking up the experience of several countries, including Pakistan, India, the US, Britain and Japan, Dr Banuri suggests reforms to strengthen the role of judicial officers in Pakistan. Instead of senior officers supervising local councils, the electorate should take greater interest to ensure that their members function properly, while the judiciary should ensure that the local authorities follow the law of the land.
The next two chapters have been contributed by Faqir Husain, who is secretary for law and justice in the federal government. One deals with reforming the law of adultery (Zina) which operates to the detriment of women in Pakistan. The other takes up public interest litigation in Pakistan and India. Both countries have witnessed increasing interest in the goals of social justice that enables the judiciary to prod the legislatures into enacting new laws, and the executive into enforcing them.
The second part dealing with the performance of the judiciary in Pakistan makes depressing reading. Rooted in the system of justice during the Mughal period, the judicial system was organized properly only after 1857, when the Crown took over from the East India Company. The British administration adopted codes of criminal and civil procedures in 1898 and 1908 respectively, and the system continues to this day, with some modifications, such as the introduction of shariat courts in 1980. The judicial structure has its basis in the 1973 constitution, which provides for a supreme court, high courts in each province, and such other courts as may be established under the law.
The constitution also provides that the judiciary will be separated from the executive progressively over a period of fourteen years. In actual fact, this process has been delayed considerably. Indeed, the system operates so slowly and inefficiently, that it usually takes years to settle cases that require only a few hours of hearing. Though modeled on the British system, the judiciary has operated since British times in a manner that favours the rich and the influential. A proper system for training judges is lacking and the lawyers, who are not organized into firms, constantly seek adjournments thus delaying and even denying justice.
Three chapters take up the system of justice, the traditional/alternative dispute resolution mechanisms, and the history of attempts at reform. Although the procedure for recourse to the police or the courts for justice appears simple, in actual fact the time taken and the costs involved far exceed expectations. The causes for delays are partly procedural, with the police denying registration of offences, and the courts not rendering speedy justice, so that sometimes the parties take the law into their own hands. The other cause for delays is “attitudinal”, with police, courts and potential witnesses showing lack of interest or concern. There is indifferent supervision of the police and ineffective monitoring of the lower judiciary by the high courts. The real need is not so much for a major overhaul of the system as for a change in attitudes to ensure speedy justice.
The chapter on traditional or alternative mechanisms for resolving disputes takes up the traditional institutions such as panchayats in Punjab and Sindh and the jirgas in NWFP and Balochistan. The effectiveness of these bodies has suffered, and other efforts to encourage settlement of disputes through arbitration have also run into difficulties. Even the institution of the Ombudsman, or Wafaqi Mohtasib, has serious weaknesses, as its decisions are not always binding and important segments of the official machinery are exempted from its jurisdiction.
There is a useful history of attempts at reform most of which have suffered from poor implementation. Even the constitutional provision for the separation of the judiciary from the executive has not been fully implemented.
Dr Tariq Banuri has written the last chapter entitled “Improving the provision of justice in Pakistan”. His aim, he states, is not to create a parallel judicial system, but to “begin the long process of overhauling the existing mainstream system at the lower level”. His proposals focus on four problem areas, which are referred to as the four “I”s. These consist of providing incentives, ensuring accountability through institutions, improving efficiency by strengthening the infrastructure and facilitating decision making by the provision of information. He suggests an action programme, to be tried first in some districts, to be expanded gradually.
This is a very useful book, which contains a wealth of material on the state of the judicial system as well as suggestions and proposed remedies to improve the present system of justice, notably by enhancing the role of higher courts. It deserves to be made compulsory reading for lawyers, and for the large number of judges, law officers, and police high-ups, all of whom can play a role in reforming this vital sector of national life.
The Dispensation of Justice in Pakistan
Edited by Mohammad Yasin and Tariq Banuri
Sustainable Development Policy Institute of Pakistan and Oxford University Press, Plot # 38, Sector 15, Korangi Industrial Area, Karachi
Tel: 111-693-673
Email: ouppak@theoffice.net
Website:
www.oup.com.pk
ISBN 0-19-579799-X
229pp. Rs375
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