The rule of law is underpinned by four universal principles. First, government and private actors should be accountable to law. Second, laws should be clear, published and applied without discrimination, protecting fundamental rights, including the security of people and property. Third, the way in which the law is made and executed should be accessible, just, and efficient. And, finally, justice should be delivered by those who are able, ethical, neutral, independent, and within the reach of ordinary people. The World Justice Project (WJP) Rule of Law Index 2019 ranks Pakistan 117 out of 126 countries using these parameters regarding ‘the rule of law.’
This ranking is made against eight factors: constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice. I draw the attention of our judicial policymakers on two important themes: civil justice and criminal justice.
With reference to civil justice, Pakistan ranks 118 out of 126 countries, despite constitutional promises regarding access to inexpensive and expeditious justice (Articles 4 and 37). The claims of our government and the aspirations of our chief justices and lawyers have not helped much. The WJP considers several factors. First, it considers whether our civil courts are accessible and affordable without unreasonable fees or physical and linguistic barriers. It also measures the extent to which people are aware of civil remedies and able to avail legal advice or representation. It assesses whether our civil courts are free from corruption and independent of private or political influence. And, finally, it examines whether our civil justice system tends to discriminate on the basis of “socio-economic status, gender, ethnicity, religion, sexual orientation, or gender identity.”
On the criminal side, an efficient criminal justice system guarantees the protection of life and maintenance of peace and order in society. Again, the right to life and liberty is protected in our constitution (Article 9). However, Pakistan’s criminal justice system ranks 92 out of 126 countries. This should alarm several stakeholders: our police, lawyers, judges, prosecutors, and prison administrators. The WJP measures whether the perpetrators of crime are effectively apprehended and charged, prosecuted and punished; whether judges are competent, impartial, and able to deliver speedy justice; whether the police, prosecutors, and judges are free from corruption and criminal influence; and whether our criminal justice system is independent from political or government influence. It also reviews whether prisoners’ rights are respected and whether our correctional institutions are safe. It gauges whether criminal suspects are given adequate legal assistance and an opportunity to challenge the evidence presented against them. Above all, in keeping with our own constitution, it assesses whether criminal suspects are protected from abuse, arbitrary arrest, and unreasonable pre-trial detention.
The fragile state of the rule of law and poor performance of our justice systems indicate an urgent need for the judicial and legal reforms. It is universally recognised that the rule of law is essential for the protection of basic legal rights of the citizens and economic stability of the state. Considering poor condition of the underprivileged segment of the society and a challenging economic situation of Pakistan, the government should prioritize justice-sector reforms as a key feature of rule of law and good governance.
Chief Justice Asif Saeed Khan Khosa has repeatedly emphasised the need of judicial reforms. More recently, he has established model courts to conduct daily trials in criminal cases. It is a welcome step. Such model courts may also be set up for concluding civil cases within a reasonable time. It is hoped, however, that given the low ranking of the rule of law indicators, right to a fair trial and the due process of law is not compromised for the sake of “speedy justice.”
In order to promote rule of law, the bar councils should restore interest in legal reforms. After all, the basic duty of the bar is the promotion of the rule of law and the protection of legal rights. The Pakistan Bar Council and each provincial bar council should help the government and the judiciary to launch a national drive for the rule of law and the reformation of our justice system. In this context, the law schools should also conduct intensive courses on the rule of law and judicial reform. Theories regarding the rule of law and judicial and legal reform should be included in both law school and judicial training curricula.
Similarly, both the Law and Justice Commission of Pakistan (LJCP) as well as the National Judicial (Policy Making) Committee (NJPMC) – a body composed of every chief justice and charged with bringing about judicial reforms across the country – should focus on improving the rule of law through effective judicial reforms.
It goes without saying that our government should support comprehensive judicial reforms providing adequate funds to bar councils and the judiciary to strengthen our lagging justice system.
The writer is a lawyer