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September 21, 2018

Towards inclusive justice


September 21, 2018

Justice is not only about having an eloborate book of law to define individual and collective obligations, and duties and rights as citizens of a state. Justice is more about the institutional mechanims to enable the poor and the marginalised to participate in legal decision-making and have access to equitable and affordable services of a free and fair trial.

In reality, political empowerment is the first vital step towards enabling citizens to realise their full potential as participants of governance. Justice is not about delivering services in accordance with some predefined legal framework. It is about participating in a way so as to influence the process of legislation. Hence, it is about political and legal empowerment to participate in formulating policy to ensure access to justice and rule of law.

In conventional legal frameworks, laws and their interpretations rest with court authorities – in that they enjoy unrestrained discretionary powers to determine the veracity of a legal matter. The key challenge for modern democracies in striking a balance between the essence of citizens’ participation and discretion of legal authority is the disconnectedness of the legal system from political empowerment.

The path to attain political and legal empowerment is through engaging in a long-term process of civic engagement and socio-political mobilisation. There has to be a well-designed and formal process, with defined objectives, that can then create institutional mechanisms which are founded on the principles of inclusiveness, participation, transparency, accountablity and sustainablity. These principles are the universal values that can bring about effective socioeconomic transformation to empower the poor and marginalised segments of society. Inclusive institutional mechanism gives voice, political wherewithal and bargaining power to the poor and to disadvantaged social groups like women and children, who in turn assert their rights over authorities that dispense justice.

One of the key dimensions of legal empowerment is access to justice and rule of law on equal terms. This may include, but is not limited to, influencing policymaking through grassroots social movements. In the context of patriarchal and tribal societies like Pakistan, the poor have limited access to the justice system due to a lack of formal identity or lack of knowledge about the system or illiteracy. There is also a lack of legal services available to them. Laws that affect the poor are often ambiguous, contradictory, outdated or discriminatory in their impact. Access to formally documented and legitimate legal identity, and the existence of institutional mechanisms for implementing rights, is key to providing access to justice for the poor.

According to the estimates of the United Nations Commission on Legal Empowerment, “there are 4 billion people in the world who live outside the protection of the law mostly because of poverty and stigma. For these people the law is an abstraction, or a threat, but not something they can use to exercise their basic rights. ‘Legal empowerment’ is about reversing that trend: about giving people the power to understand and use the law. Legal empowerment is the process through which the poor become protected and are enabled to use the law to advance their rights and their interests in relation to the state and the market. Legal empowerment is about strengthening the capacity of all people to exercise their rights, either as individuals or as members of a community. It’s about grassroots justice – about ensuring that law is not confined to books or courtrooms, but rather is available and meaningful to ordinary people.”

The World Justice Project has analysed 113 countries and found that Pakistan ranks 97th in the ‘absence of corruption’ list and 79th in terms of open government (whether basic laws and information in legal rights are publicised). The country ranks 113th out of 113 countries on order and security (that is: various threats to order and security including conventional crime, political violence, and violence as a means to redress personal grievances); 101st for protection of the fundamental rights of citizens; 106th on provision of civil justice and 81st on provision of criminal justice.

Pakistan ranks among countries that have the lowest performance in dispensing justice and protecting the legal and human rights of citizens. There is a lack of institutional mechanisms to enable the poor and the marginalised to participate in the process of defining equitable and affordable justice to all. More importantly, the justice system in Pakistan is marred by structural and policy barriers in instituting an inclusive legal system. The institutional mechanisms of justice and legal processes are predicated on a colonial structure and outdated; so, they do not cater to the needs of the 21st century. The legal system grants unprecedented powers to the authorities and there is a huge gap between emerging legal needs and functional justice. While there seems to be a palpable sense of urgency to introduce institutional reforms and ensure the devolution of institutions dispensing justice, the government must also support small initiatives that are underway to bridge the gap between the justice system and the poor.

In light of the aforementioned advantages of empowerment through access to services, civil rights and an enhanced role of the community in establishing rule of law, it is vital for the government to incorporate state and citizenship as the core function of the local government structure. The local government structure, being the bedrock of genuine democracy, must have strong footprints in all the provinces and administrative regions of Pakistan.

Through its devolved institutional structure, the government must focus on transferring knowledge and expertise to local institutions and to people who can reach out to others in distress and engage them by spreading consciousness of their rights and responsibilities. The realisation of having legal protection is rooted in uninterrupted support to local organisations/institutions which help vulnerable groups to remain conscious of their duties and of a possible violation of their rights as citizens.

Investment for effective local citizenship is far less costly than spending billions to combat extremism, which is a direct result of the absence of strong and responsive local governments. In conflict-hit areas like Balochistan, Fata and marginalised regions like Gilgit-Baltistan, the new government must invest in citizenship initiatives to overcome the dwindling writ of law. Civil-society organisations, with their technical expertise and institutional outreach at the grassroots level across Pakistan, can help the government improve the writ of law.

The new government, therefore, has viable options to extend its governance reform agenda to strengthen local governance by investing in the already existing inclusive community institutions rather than establishing parallel structures of its own. The civil society can help the government come up with a cost-efficient, speedy, pragmatic and tangible local empowerment policy and action plan to help build an inclusive and peaceful new Pakistan.

It is now up to the new government to spare a part of its resources for institutional reforms and channel them through local civil society for the long-term transformation of the lives of common citizens. Justice, peace, prosperity and development are interlinked and investing in attaining them is a prerequisite both to improve our ranking on the Human Development Index (HDI) and meeting our commitments towards sustainable Development Goals (SDGs).

The writer is a freelance columnist based in Islamabad.

Email: [email protected]

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