Economic constraints are arguably the most crucial stumbling blocks in the way of a comprehensive judicial overhaul
When the Supreme Court of Pakistan recently took exception to the inordinate delays in the adjudication of graft cases by the National Accountability Bureau, it raised fundamental questions about the efficiency of the judicial institution in Pakistan.
A recently published Rule of Law Index 2020 by the World Justice Project only lent credence to the widespread perceptions about the state of judicial affairs in the country. Out of 128 countries analysed in the report, Pakistan ranked 120th. The eight countries which lagged behind Pakistan were Bolivia, Afghanistan, Mauritania, Cameroon, Egypt, Democratic Republic of Congo, Cambodia, and Venezuela. Denmark, Norway, and Finland topped the Index.
Like Pakistan’s unenviable position in the global ranking, its poor standing in the region also highlights the need to do some serious soul-searching. Pakistan is ranked 5th among six countries in South Asia. It is ranked 25th among 30 countries classified as a low-income group.
It may be noted that Pakistan has been virtually locked up at the bottom of the index and that its pathetic performance in this regard is not specific to the PTI government.
The Rule of Law Index aggregates information about eight factors and several sub-factors. To minimize biases in the data, the World Justice Project collects data from a representative sample of the general population and the legal experts. Each of the identified factors contributes to the construction of the index. A brief description of the eight factors and the subfactors associated with those may help understand the nature of the institutional problems in Pakistan.
The first factor relates to the constraints on government powers. It asks if the government powers are limited by the legislature and judiciary. If the government officials are sanctioned for misconduct, and if independent media, civil society organisations, political parties, and individuals are free to report and comment on government policies without fear of retaliation.
The second factor is the absence of corruption. It measures the degree to which government officials in the Executive, Judiciary, Police/Military, and Legislative branches of the state use public office for private gains. Misconduct by public officials may involve bribery, award of contracts through shady deals and embezzlement.
This component also measures whether judges and judicial officials refrain from soliciting and accepting bribes to perform duties or expedite processes and whether the judiciary and judicial rulings are free of improper influence by the government, private interests and criminal organizations. It also measures whether members of the legislature refrain from soliciting or accepting bribes or other inducements in exchange for political favours or favourable votes on legislation.
The third factor relates to the openness of government. It asks whether information on legal rights is readily available. It measures the extent to which people are aware of their right to information and relevant records are accessible to the public upon request. It asks whether or not the freedoms of opinion and expression, assembly and association, and the right to petition the government are protected under law.
It also examines the complaint mechanism, that is, whether people can bring specific complaints to the government about the provision of public services or the performance of government officers in carrying out their duties.
The fourth factor is related to fundamental rights. This asks whether individual citizens are free from discrimination— based on socio-economic status, gender, ethnicity, religion— with respect to public services, employment, court proceedings and the justice system. It also measures whether the police inflict physical harm upon suspects during arrest and interrogation and whether political dissidents or members of the media are subjected to unreasonable searches, arrest, detention, imprisonment, threats, abusive treatment or violence.
It also measures whether independent media, civil society organizations, political parties, and individuals are free to report and comment on government policies without fear of retaliation. It also measures whether members of religious minorities can worship and conduct religious practices freely and publicly. It asks if the freedom to privacy and association and labour rights are guaranteed.
Speedy justice is not just an economic imperative: it also guarantees law and order. The adverse consequences of the denial of justice (which includes, by construction, the delay in justice) are no secret.
There is a vast gap between Pakistan’s score on this factor and the global average. Abduction of Matiullah Jan and the opposition to the construction of a temple in Islamabad are only recent reminders of the state of fundamental rights in Pakistan.
The fifth factor is related to order and security. This measures the effectiveness of crime control, particularly homicide, kidnapping, burglary and theft, armed robbery and extortion. Citizens’ general perceptions of safety in their communities are also factored in the index. It also asks whether or nor people are effectively protected from armed conflict and terrorism.
Most importantly, it measures whether people resort to intimidation or violence to resolve civil disputes amongst themselves or seek redress from the government and whether people are free from mob violence.
The sixth factor relates to regulatory enforcement. This factor measures whether government regulations are effectively enforced without improper influence, and if administrative proceedings are carried out without unreasonable delay; if due process is followed in the enforcement of government regulations. It also measures whether the government respects the property rights of people and corporations, refrains from illegal seizure of private property, and provides adequate compensation when a property is legally expropriated.
The seventh factor relates to civil justice. It measures the accessibility and affordability of civil courts without incurring unreasonable fees and encountering unreasonable procedural hurdles. It also looks into whether the civil justice system discriminates based on socio-economic status, gender, ethnicity, religion, national origin, sexual orientation, or gender identity. It also measures whether the civil justice system is free of bribery and improper influence by private interests or government or political influence and if civil justice proceedings are conducted, and judgments are produced promptly without unreasonable delay.
Additionally, it asks whether alternative dispute resolution mechanisms are affordable, efficient, enforceable and free of corruption.
The eighth factor relates to criminal justice and measures whether perpetrators of crimes are effectively apprehended and charged, prosecuted and punished. It grades judges and other judicial officers in terms of competencw and producing speedy decisions. It sees whether correctional institutions are secure, respect prisoners’ rights, and are effective in preventing recidivism. It sees whether the police and criminal judges are impartial, whether the police, prosecutors, and judges are free of bribery and improper influence from criminal organizations or government or political influence.
It also measures whether the basic rights of suspects - including the presumption of innocence and the freedom from arbitrary arrest and unreasonable pre-trial detention - are respected.
Economic constraints are arguably the most crucial stumbling blocks in the way of a comprehensive judicial overhaul. When the Supreme Court expressed concern over the delay in the prosecution of the accused in the cases instituted by the National Accountability Bureau (NAB), the top court asked the bureau to furnish a report highlighting reasons behind the delay in trials. In the report submitted by NAB, the way the judicial system works was cited as a major reason behind the failure in the timely adjudication of the cases.
The report also said an amount of Rs 2.86 billion per annum was required to establish 120 accountability courts for the timely adjudication of graft cases. To keep things in perspective, Rs 2.443 billion was earmarked in the federal budget 2020-21 for the Supreme Court, and Rs 6.937 billion to run the subordinates courts. It would be interesting to see if the incumbent government is willing to spend this additional amount to stamp out corruption considering the PTI government made transparency the lynchpin of its electoral manifesto in 2018.
Above and beyond the economic constraints, successive governments have turned a blind eye to the overhauling of the judicial system. In connection with one of his court appearances, former prime minister Nawaz Sharif ruefully stated that “the justice is so expensive that I am tired of paying the hefty fees of the lawyers. Had I only known about these problems when I was the prime minister, I would have fixed this problem.”
Speedy justice is not just an economic imperative: it also guarantees law and order. The adverse consequences of the denial of justice (which includes delay in the administration of justice) or miscarriage of justice are no secret.
The writer is an Assistant Professor in the Department of Economics at COMSATS University Islamabad, Lahore