This paper on the judiciary in Pakistan focuses on issues of access and dispensation of justice, particularly at the local level (also known as “subordinate” or “lower” level judiciary). The paper has three sections. The first broadly introduces the debate on dispensation of justice and discusses the judicial system. The second takes into account issues regarding access to justice systems and their functionality vis-à-vis citizens. A brief analytical summary of reform efforts and recommendations form the concluding section.
In a broad conceptualization, “rule of law” (and dispensation of justice inter alia) is a defining characteristic of the modern nation-state. Since the nation-state stands on the edifice of a “social contract” between citizens and the state, the state is bound to function by the “rule of law” to ensure individual and collective rights and responsibilities of citizens. In the context of this broader conceptualization of the relationship between the citizen and the state, the constitution of the state represents the social contract since it is a document that binds citizens to the state and upholds the rule of law. The rule of law and the establishment of the nation-state are linked to the rise of modernity in the Enlightenment period in Europe from the 16th century onwards. Modernity is reflected, among other things, in feudalism being replaced by a capitalist mode of production and impersonal market relations, barter trade by an invisible exchange and communitarian values by individualism.
Access and dispensation of justice are thorny issues in Pakistan’s governance paradigm and in the day-to-day reality of its people. The situation is particularly alarming at the level of the district judiciary where “common” people approach courts to get justice. Dispensation of justice is quite a complicated issue and can be viewed from many angles:
Article 25(1) of the Constitution of Pakistan says, “All citizens are equal before law and are entitled to equal protection of law.” Despite this constitutional guarantee, the poor and the less influential sections of society face problems while accessing the institutions of justice. The common perception is that “there is no justice for the poor.” It is reflective of the fact that influential, rich and resourceful people can buy justice and deprive the poor of their property as well as their socio-political and legal rights.
Service-delivery and Governance:
Dispensation of justice is a basic service which the state provides to its citizens. Like provision of education, health, water, shelter, basic infrastructure and town and municipal services, it is obligatory. Its near dysfunctional status in the country is comparable to the performance of other public services such as public education and health. It is seen as a governance issue and the inability of the state to provide a credible and accessible justice system is interpreted as in indication of weakness of governance structures in the country.
Poverty, Justice and Growth:
Poverty can be defined not only in terms of low income (income poverty), but also as a lack of assets and opportunities, and the vulnerability and risks faced by the poor (poverty of opportunity). Access to justice and its fair dispensation provide an institutional asset that the poor need. Certain quarters, like the International Financial Institutions (IFIs), is of the view that rule of law serves the interests of both the business community as well as the poor. It is, therefore critical for economic growth as well as poverty reduction. In other words, the parameters of growth in business activity and addressing the institutional gaps of poverty are not mutually exclusive. Access to justice and its fair dispensation are critical both for economic growth (in terms of ensuring the validity of contracts) and realizing the rights of citizens, particularly the poor.
On the basis of these assertions, it is obvious that there is a need to reform the justice system in Pakistan, particularly from the point of view of the rights of the poor and less influential sections of society. The questions to address are :
How can this possibly be achieved?
What are the problems in the prevalent systems of justice?
What are the prevalent mechanisms of dispensation of justice in the formal and informal justice forums?
What is the nature of disputes?
What are the differences across the urban-rural divide?
What are the differences between various types of disputes, such as property, criminal and family?
What is the behavior of courts, members of the Bar and litigants?
How is the dispensation of justice related to existing power structures? And also, what happened to recommendations for reforms in the last five decades and where do we stand today?