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November 4, 2015

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When laws are not enforced, courts are bound to intervene: CJ

When laws are not enforced, courts are bound to intervene: CJ

ISLAMABAD: In a rare speech to the Senate committee of the whole, Chief Justice of Pakistan Justice Anwar Zaheer Jamali on Tuesday asked parliament to play its role in checking corruption and crimes.
He said Pakistan has an abundance of laws, perhaps it is even over-legislated in some areas, but there is a crisis of implementation which must be addressed as a matter of priority.
The Law and Justice Commission of Pakistan, he contended, had been tasked to focus on developing a national narrative on strengthening the rule of law as a public good that is critical for the realisation of the ambition that is Pakistan. “There is little point in having fine laws when the organisations responsible for implementation are essentially dysfunctional,” he said while expressing his views in Urdu on the subject of ‘Ensuring Speedy and Inexpensive Justice,’ here at the Senate committee, chaired by Senate Chairman Mian Raza Rabbani.
It was for parliament, he noted, to check the quality of the rule of law and justice and services and take necessary steps to ensure the enforcement of constitutional imperatives and ideals supported by the judicial branch that is independent and objective in its examinations, interpretations and findings. He made it clear that Pakistan’s future lay in the independence of the judiciary and for this the supremacy of the rule of the law was imperative. It was for the first time in the national parliamentary history that the chief justice of the apex court had addressed the Senate’s special panel.
Justice Jamali said everyone was equal before the law and this should be seen as such. He contended the judicial system in Pakistan was genuine and that no one should be disappointed with it. However, he pointed out that Pakistan faced two major challenges: a lack of education and limited resources for its massive population, saying all the state institutions should unite to ensure inexpensive justice to the masses.
About the lawmakers, he contended, “as the Constitution provides, it is the primary responsibility of the chosen representatives of the people to ensure that the constitutional mandate is effectively implemented and citizens’ lives and interests protected and promoted effectively in line with public welfare and the common good. This brings me to talk about the need to strengthen oversight to ensure that the Constitution and the rule of law are effectively enforced”.
Clad in a two-piece suit, Justice Jamali said that the Law and Justice Commission of Pakistan had been directed to conduct a justice needs assessment, strengthen the information base and monitoring and evaluationof the justice services to ensure timely, effective and fair justice provision responsive to citizens’ needs.
He pointed out lack of administrative and technical capacities, lack of functional specialisation, mis-allocation of scarce resources and mal-administration, including corruption and criminality, were undermining the quality of justice services and constitutional fabric and values.
Justice Jamali noted there were no standards of good administration, transparency and integrity and said it was a matter of considerable concern that there was no quality assurance of the justice service provision: “there was no monitoring and evaluation of what we are delivering and there is no determination of justice needs and levels of satisfaction,” he said.
“Whilst we recognise that implementation is primarily an executive function, it becomes a matter for judicial consideration when rights are denied or violated, at which point, the judiciary is compelled to order organisational reforms. It is more appropriate that governments lead this effort but due to the often grave consequences of poor implementation and weak administration, courts have been compelled to delve into organisational matters. Indeed, the Law and Justice Commission of Pakistan has been engaged to support the Supreme Court of Pakistan to examine such matters, negotiate organisational reforms and ensure compliance,” he noted.
He said that one consequence of weak implementation was legal exclusion. It had been estimated that the State justice sector only catered for about 20 per cent of disputes and that 80 per cent were dealt with by an unregulated informal justice sector such as jirgas and panchayats.
“This may be interpreted as evidence of massive legal exclusion-a widening of an increasing distance between the State, society and citizens. The State’s failure to provide for the vast majority of citizens’ justice needs, which undermines the legitimacy of State institutions, and weakens the State’s writ and authority resulting in law and order situations, ungoverned or ungovernable spaces, and instability,” he observed.
Justice Jamali continued, “Society has its legitimate expectations, demands and needs that need to be timely addressed to maintain public confidence and legitimacy in the State institutions. There has to be a conscious investment in society in terms of their justice, security and development needs to ensure social cohesion and harmony, which is foundational for a stable state’.
He said indeed the Constitution recognised the need to strengthen the ‘local state’ and local governance as foundational for a more inclusive state and essential for resolving political contests and these wider policy matters were for parliament and the respective governments to deliberate upon and address.
Justice Jamali said an unjust state and society was an unstable state and society, it could not sustain in the long-term. “We need to appreciate the rule of law as a value and, that laws have a distributive effect. Do they meet the constitutional imperative of creating an egalitarian society? Hence, legal policy needs to be studied rigorously to inform law making so that we understand their probable and actual impact and to ensure that laws are fair and impartial to maintain their acceptability and legitimacy. And, of course, ensuring that laws are impartially enforced”.
He observed, “unfortunately, since we have not developed legislative drafting into a specialised skill, the incorporation of constitutional policy and objectives in state policy and legislation remains problematic and weak”.
“Critically, the rule of law derives its moral content and social legitimacy by being responsive to citizens’ sense of justice and fairness. The Constitution provides (w)herein shall be guaranteed fundamental rights...social, economic and political justice”.
The prevailing culture of impunity, he noted, and lawlessness evidenced by corruption and crime had serious consequences for state stability, public confidence in and legitimacy of state institutions, and ultimately social cohesion.
“Judicial oversight and review alone are insufficient and may be inappropriate to deal with these matters effectively. It is primarily for Parliament to examine, invest and innovate to improve the quality and reach of justice services based on its oversight functions, representativeness, to legislate and budget for change.
“We are committed to working with all state institutions to strengthen the rule of law as the foundation of a modern and progressive Pakistan as envisaged by the Constitution,” he said.
The chief justice thanked the Senate chairman for the honour to address the august House. “I hope, I have in some small way contributed to the effort to strengthen the rule of law in Pakistan, which is our shared obligation. I hope that you will receive the judiciary as a partner in this endeavour,” he said referring to the Senate’s initiative for provision of speedy and inexpensive justice to people.
Earlier, Rabbani welcomed the chief justice and said it was the maiden occasion that he had graced the Senate committee of the whole. He said his arrival was a major breakthrough in efforts to strengthen the relationship among the State institutions and this would also help cement roots of democracy.
Leader of the House Raja Muhammad Zafarul Haq also thanked the chief justice for sparing time for the Senate committee despite his pressing engagements. He added his speech was the essence of his experience spread over 50 years and this would benefit the committee in furnishing its recommendations.
Meanwhile, PPP Senator Farhatullah Babar welcomed the appearance of the CJP before the Senate. “The CJP appearing before the Senate to give his views on speedy and inexpensive justice is the first of its kind in the history both of the Parliament and the Supreme Court,” he said.
He noted, “it is a most welcome and timely initiative that is full of symbolism as well as of practical value. It holds the promise to arrest from further widening the imbalances in relations between the Parliament and the judiciary”.
“In practical terms the observations of honourable CJP will act as force multiplier for the recommendations of the Senate to streamline the criminal justice system that has dogged us for too long and which has alienated the citizen from the state and its institutions,” he believed.

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