Access to justice in Pakistan | By Wajahat Ali Malik

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Access to justice in Pakistan 

EVERY year on 17 July, World Day for International Justice is observed all around the world. It is also known as International Criminal Justice Day or International Justice Day.

This day is celebrated to support access to justice, to promote the rights of the victims and also to prevent crimes that threaten peace, security and well-being of the world.

Access to justice is a fundamental right as provided in the Constitution of Pakistan 1973. Article 10(a) of the Constitution guarantees the ‘right to fair trial’ as a fundamental right.

‘Equality before the law’ is another fundamental right guaranteed by article 25 of the Constitution.

For promotion of social justice and eradication of social evils,’ inexpensive and expeditious justice’ by the State to its citizens is guaranteed in article 37(d) of the Constitution.

Although the Constitution of Pakistan guarantees the provision of access to justice for every citizen equally, practically on ground reality is very different from reality.

For example, in the civil justice system of Pakistan, it takes between two to three decades to eventually resolve any moderately complex civil suit through the litigation system after exhausting numerous rounds of appeals, revisions, reviews and remands.

Similarly, in the criminal justice system, the situation is also very awful in Pakistan. Unusual delays occur in the disposal of criminal cases by the courts.

For example, Ghulam Sarwar and Ghulam Qadir, two brothers, were executed by prison authorities a year before the Supreme Court eventually pronounced them innocent.

They were acquitted by the apex court after having endured 24 and 11 years in prison respectively.

They might not know that article 10-A of the Constitution of Pakistan guarantees them a “fair trial and due process” while article 37(d) promises them “inexpensive and expeditious justice”.

Injustice in the dispensation of justice by courts, not only erodes people’s trust and confidence in the administration of justice, but also hampers the socio-economic development of the society.

It serves as a disincentive to foreign investment in our economy and affects our trade relations with foreign governments and multi-national companies.

The term access to justice is not confined to any reform program relating to judiciary only.

It has rather a broader horizon to include all the justice sector stakeholders like police, prison authorities, prosecutors, court staff, investigators, witnesses and bars.

Litigants or parties are a focal person in access to justice doctrine so their fundamental rights as guaranteed in the Constitution of Pakistan must be fulfilled in pre, during and post justice processes.

Some key suggestions for provision of inexpensive and expeditious justice to parties and for overhauling of existing justice system are inter alia as follows; Firstly, the criminal procedural law (Criminal Procedure Code) and criminal substantive law mostly known as Pakistan Penal Code (PPC) are 123 years and 161 years old respectively while the civil procedure code (CrPC) is 113 years old.

These laws are products of the colonial era and were enacted according to the requirements of one century ago.

At that time, the nature of civil and criminal disputes was altogether different, and the state-of-the-art resources and technologies were not available to courts, lawyers and the litigant public.

These laws provide many technicalities by allowing endless rounds of appeals, revisions and reviews and do not fulfil the requirements of today’s era.

So, there is dire need of enacting the laws according to the requirements of the modern era in order to speed up the pace of pending cases.

This is where the legislature must act. Secondly, the time periods specified in various general and special laws for different stages of civil and criminal trials should be strictly observed by the courts.

Thirdly, lawyers should avoid unnecessary and frequent adjournments, so that litigants could have final decision earlier.

In a similar manner, the Bar Councils and Associations should abstain from strikes on trivial issues for the sake of an efficient and fair justice process.

Fourthly, scarcity of judges also contributes to the delayed justice process. A few judges are deployed to adjudicate thousands of cases in the country.

So, all current judicial vacancies need to be filled and the number of judges should be increased in district and apex courts with high case pendency.

Fifthly, enhancing the capacity of the legal profession and the judiciary for providing quality legal services and access to justice.

To strengthen this domain, the existing system of legal education and judicial training in Pakistan needs to be addressed.

Lastly, it would be wrong to assume that the entire blame for injustice in dispensation of justice by courts and sluggish justice system is solely attributable to defects in procedural laws/rules, non-appearance of lawyers, bar associations’ strikes, agencies responsible for completion of investigation and submission of challans or the incapacity of judges etc.

A factor responsible for unfairness in the justice system is also slack supervision and lack of adequate monitoring mechanism on the part of superior courts.

There are no organised and methodical arrangements of supervision over the subordinate courts, because of which inefficiency and misconduct among the judicial officers are on the increase.

In respect of the performance of the judges of lower courts, the respective High Courts and District and Sessions Judges must monitor the functioning of the subordinate courts.

Regular visits of the Chief Justices, judges of the High Courts and the inspection teams should be scheduled at district courts.

Cases of corruption and inefficiency in the justice process should be taken up promptly and appropriate punishment be awarded.

There should be a system of reward and incentives in respect of those judicial officers whose performance is exemplary.

Such awards may be in the shape of special increment, preference in promotion or choice of posting etc.

—The writer is an Advocate High Court and Co-Chair — National Action & Coordinating Group against violence against children, Pakistan (NACG-Pakistan).

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