Does Pakistan require foreign loans to improve the functioning of its courts and the quality of justice delivered there? The Asian Development Bank, at least, thinks so and has already approved three loans amounting to $350 million for a project aimed at reforming the country’s judicial system, strengthening the independence of judiciary and the rule of law, and creating opportunities of access to justice for the downtrodden.

Islamabad has accepted the package but a section of judiciary has shown some jitters to swallow the strange product from a multilateral institution which happens to be a part of the Washington Consensus. The loans which were approved on December 20, 2001 by the bank in Manila were initially seen with suspicion and hence resisted. These were interpreted as amounting to interference in the independent functioning of the courts.

The most vocal had been the Lahore High Court and its erstwhile chief justice, Justice Falak Sher, had refused to allow the implementation of the ADB’s project called “Access to Justice Programme” within LHC’s jurisdiction saying he would not let anybody interfere in the judicial affairs of the province. He has since been promoted as a judge to the Supreme Court.

The LHC has now agreed to ADB’s programme after a meeting between the Court’s administrative committee, consisting of seven judges, and an ADB delegation comprising Project Director Livingstone Armitage, Consultant Justice (retd) Shafiur Rehman and Justice Fazal Karim held in Lahore on September 14. Since the loans happen to be a unique event — something unheard of hitherto — there still persists anxiety and confusion about how the funds will be spent and what could be the motive behind these loans. It is widely believed that the ADB representatives will sit in all the high courts to monitor their working and the way the cases are decided.

But the Asian Development Bank has no illusions about the purpose of its “Access to Justice Programme” (AJP) for which the three loans are being given. It says the programme will give “meaning” to the rule of law by providing resources to reform its main institutions — the judiciary and the police. It will “strengthen judicial independence” and ensure that the “judiciary is adequately funded to meet its mandate”.

The objective is also to improve the quality of governance in the country. The AJP, the bank says, will ultimately become a key part of Pakistan’s nation-wide efforts to “positively influence the exercise of political, administrative and judicial power” so as to improve the accessibility of “public entitlements” for all citizens particularly the poor, women and the minorities. (It seems that the bank is to join the democratic forces’ struggle to radically change the Pakistani society.)

The ADB claims the AJP will enable the poor to “exercise their rights guaranteed under the law” and to protect their property from being “taken away by the bureaucratic or political elite.” But a more forthright and relevant intention has been stated by a spokesman of the bank in these words:

“A legal and judicial system that can uphold the rule of law, check bureaucratic excesses and enforce contracts will contribute to an enabling environment for private sector-led growth.”

There are two policy loans amounting to $ 330 million and a $20 million technical assistance loan to translate AJP’s legal and policy framework into institutional and organizational arrangements.

These loans will also be utilized for reforming the police system and to give funds to civil society groups, NGOs and lawyers through a “Legal Empowerment Fund” so that they could provide free legal advice and advocacy to the poor, women and the minorities and other vulnerable groups, since the latter are unable to protect their rights owing to high cost of seeking justice.

The AJP will promote opportunities which may go a long way in encouraging the appointment of women judges. It will organize training courses in “gender sensitization” for the judiciary and the police. The AJP will actively promote critical public and professional debate over important social issues and the bank expects “no adverse social impact”.

The programme also aims at creating an “independent, accountable, transparent and professional” police force which is free of political interference, establishing an independent prosecution service and an independent police complaints authority.

In addition, the AJP will improve police-citizen relations and raise awareness of gender and human rights issues. It will promote research and debate on the quality and equality of existing laws by mobilizing the (reformed) Law Commission and the Women’s Commission, and through this measure “build constituencies for change and consensus for reform.” Concrete steps will be taken for “revision of service rules for judges to remove gender biases and facilitate induction of more women judges.”

One policy loan of $243.2 million will be from ADB’s ordinary capital resources with amortization over 15 years, including a grace period of three years, carrying an interest rate determined in accordance with ADB’s LIBOR-based facility, a commitment charge of 0.75 per cent per annum and a front-end fee of 1.0 per cent.

Second policy loan of $86.8 million will be from ADB’s Special Funds resources with a term of 24 years,including a grace period of 8 years. Interest of 1.0 per cent will be charged during the grace period and 1.5 per cent per annum thereafter.

The technical loan of $20 million will have a term of 32 years with 8 years as grace period. It will carry an interest of 1.0 per cent (grace period) and 1.5 per cent during the remaining period. It will be implemented in three phases.

The first phase will focus on

(1) governing structures, systems, and capacities to articulate policies/laws,

(2) public knowledge and empowerment,

(3) performance and accountability,

(4) policy impact, and

(5) supporting further legal and policy reform.

The ministry of law, justice and human rights will be the executing agency of this programme while it will be implemented through the Law Commission, the Federal Judicial Academy, Ombudsman and ministry of interior. At provincial level, the high courts and public safety commissions will also be associated. The programme is due for completion by end-2004.