Foqia Sadiq Khan
foqia@sdpi.org
For Pakistan, access to justice for the common man has remained an elusive goal. Similarly, dispensation of justice has also remained flawed, delayed and in some cases, non-existent. Some link this sorry state of affairs to lack of resources and capacity, others to the lack of political will of state.
The Government of Pakistan has come up with a large body of commissions and committees on judicial reforms since 1956. They include the:
Only a few of the recommendations of the bodies enumerated above have been implemented. They include the ones related to the Family Laws Ordinance, establishment of the Federal Judicial Academy and Pakistan Law Commission, and separation of the executive from the judiciary.
However, other substantive recommendations have not been implemented despite their repeated articulation in various commission reports. Examples are the ones concerning day-to-day dispensation of justice such as the ones related to court facilities, buildings, salaries of the judges, changes in the process-serving, production of witnesses, improvements in criminal investigation and prosecution, implementation of rules and codes to cut down delays and prison reforms. (Yasin and Shah, 2004)
Voices from civil society have also come up with judicial reform ideas. One such recommendation called for the revamping of the judiciary through improvements in incentives, institutions, infrastructure and information. This analysis says judicial officials need to be motivated through better incentives, appointments through a national Federal Public Service Commission, better internal and external accountability and monitoring by a trial by jury system as well as the appointment of an external 'parliamentary protector of citizens' rights.'
Furthermore, the analysis calls for changing infrastructural facilities such as provision of professional court clerks, computation facilities, law interns, libraries and facilitating a better quality of decision-making through proper law education and training for judges that would require improvements in law colleges' curricula. (Banuri, 2004)
The Asian Development Bank (ADB) has funded extensive studies on judicial reforms in Pakistan. These studies have fed into the ongoing Access to Justice Program (AJP) funded by the ADB and implemented by the Government of Pakistan. The program was started in 1999 and is one of the most extensive programs on judicial reform undertaken in Pakistan. The predominant approach of the program is management-oriented. The research phase has been completed and the project is in its implementation phase. It still remains to be seen how successful this effort to overhaul the dispensation of justice is going to be. The key elements of the AJP are improving the management of the judiciary through:
In this context, the innovative idea of case flow management is quite interesting. The proposed software could handle functions from case institution to case fixation, as well as compilation of the cause list till the judgment is announced. Such case flow management can improve case tracking to a large extent and also feed into a public inquiry system. (The Asian Development Bank, 2003 and 2001)
Insofar as the direction of legal reforms is concerned, a better management of the judicial system is a welcome step. However, the benefits of such an approach, if and when it is implemented, are likely to be limited. It may not be possible to fully ensure justice for the poor and the marginalized groups by better management of the judicial system alone, unless steps are taken to transform the local power structure (related to dispensation of justice), to a more just and equitable one.
A strong critique of AJP questions whether the program will only end up increasing Pakistan's indebtness. The lack of reference to the state's role in ensuring constitutional rights of citizens of Pakistan is highlighted in the critique and so is the absence of an analysis of the exploitative and 
oppressive socio-economic systems that incubate poverty. It states that ADB's reports promote management-oriented apolitical reforms whereas 'the most constraints are found in the political culture,' because politics and political culture/ power are part and parcel of the structures under which justice is dispensed in Pakistan. Moreover, AJP's implementation through the Federal Ministry of Law, Justice and Human Rights as well as its monitoring raises concerns and skepticism about its ultimate efficacy. (Ercelawn and Nauman, 2004)
Some of the recommendations are:
1) Since the influential are able to buy or manipulate justice, the only long-term way to reform state institutions is to decrease inequality of financial, social and human development. Realization of social justice is closely linked to the dispensation of justice and it can be realized through ensuring a more equitable socio-economic distribution of wealth and assets through land-reforms, employment generation, education, economic growth and provision of opportunities to the poor and less influential sections of society.
2) Allocating more funds for human and physical infrastructure of judiciary as a percentage of annual government expenditures so that judicial reforms are not seen as a one off expenditure acquired through external loans.
3) Implementation of AJP recommendations.
4) Revamping of police prosecution services is critically important for criminal cases. There is also a need to set up a permanent district commission at each district headquarter to monitor the registration of FIRs, police harassment and hear citizens complaints. Such district commissions would take the required action and report to the respective High Courts on a regular basis.
5) The so-called 'honor' killings need to be discouraged through all possible means. The Qisas and Diyat Ordinance 1984, that makes murder a pardonable offence, needs to be amended, particularly in cases related to 'honor' killings so that the perpetrators of crime cannot be pardoned.
6) A system must be evolved to check the abuse of powers of the revenue department. There is also a need to make land revenue data accessible, reliable and secure. A good way to save people from being dependent on the local revenue officer (patwari) could be the automation of the land revenue record, provided the automated data could be protected with security.
7) Since a greater number of people approach the informal justice systems such as panchayat and jirga rather than the formal judiciary, the informal justice system needs to be reformed.
8) The conferring of the right to divorce to women in the nikahnama needs to be popularized to save the women who want divorce from the hassle of languishing in courts.
9) Judges need to monitor application of the relevant provisions of the Civil Procedure Code, Criminal Procedure Code and High Court Rules that cut delay such as affidavit of patwari's statement rather than wasting time on the appearance of these officials in court.
10) Judges can also separate the cases where the accused are present from the ones where they are absconding to cut delays.
11) Various laws such as Ehtaram-e-Ramzan (Sanctity of Ramzan) and price control laws amongst others need to be amended or repealed to stop them being used as leverages of police harassment.
12) The sardari (feudal) justice system, despite appearing swift and effective, is not desirable because it is capable of systematically discriminating against the women and poor. Such systems need to be phased out from the tribal areas.
13) Dispensation of justice and police performance needs to be an integral part of the human development indicators of the UNDP and other development institutions for on-going monitoring.
14) There is a great deal of inter-provincial variation in disputes and their resolution patterns. Loosely, patterns in rural Sindh and Balochistan are more similar to each other. This is an important finding for public policy as devolved institutional mechanisms for more effective service delivery continue to grow. 
15) Some of the other relevant issues that need more research are the blooming population of under-trial prisoners, the deteriorating conditions of prisons, police brutality and issues of habeas corpus.
However, the key question is whether these recommendations can/will be implemented or not. Any discussion on these reforms should be carried out in the context of the following key trends in judicial reform approaches:
1) Since the modern judicial system is alien to our culture, so litigants and other stakeholders act to delay the proceedings and subvert the dispensation of justice to fill the gap between local tradition, politics and formal law. This view, as briefly discussed in the issues section, indirectly suggests that delay in the judicial process cannot be reduced through improvements in management structures only. Efficiency clashes with litigants' hidden preferences, therefore, it is difficult to achieve.
2) As discussed above in detail, ADB and others have come up with a management reforms approach based on improved incentives for the judiciary and efficient management systems. Though most of the reforms proposed by ADB are much needed to improve the physical, human and information infrastructure, the most obvious flaw lies in it being apolitical in nature.
3) There is another critical approach that flows out of SDPI's research that views the issues of access and dispensation of justice in context of the structural basis of power structures. Service delivery can never be improved and the poor can never be empowered until the power structure that impedes such service delivery is altered in favor of the poor.
The most obvious of such reforms include land and other asset redistribution and human and social capital formation required to undermine the power of the feudal system. In fact, to achieve the desired objective of diffusing power, the implementation of land reforms is critical and merely passing Acts is meaningless.
However, the importance of local culture and traditions in addressing the issues of law-and-order and the dispensation of justice cannot be ignored. Informal justice systems and other conceptual constructs such as socio-economic status, gender and, at least in an informal sense, quoms (caste), and beraderis (clan/tribes) have a strong bearing on the dispensation of justice. A holistic analysis of justice systems includes the role of inter-related factors like social institutions (caste/tribe), determinants of influence (land, wealth), factions (based both on local socio-political interests), social mobility (achieved through education and migration) and gender.
Rule of law is the pivot to the transformation from feudalism to capitalism. From this perspective, rule of law is not only a service but it is the lever through which capitalist transformation is achieved. One strong academic view is that unless the transition towards dynamic capitalism fully takes place in post-colonial countries like Pakistan, rule of law and dispensation of justice cannot be achieved by apolitical governance related reforms.
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