National Judicial (Policy
Making) Committee: Introduction
The National Judicial Conference is being organized by the National
Judicial (Policy Making) Committee which is a statutory high profile forum
established in 2002. As an apex judicial policy-making institution in
the country, the NJPMC provides leadership for ensuring the provision of quick,
inexpensive and quality justice by implementing its mandate.
Through an Ordinance in 2002, the
Chief Justices’ Committee has been transformed into the National Judicial
(Policy-Making) Committee and mandated to ‘coordinate and harmonize the
judicial policy within the court system and ensure its implementation through
the Law and Justice Commission (its Secretariat). Its functions include;
1)
Improving capacity and performance of the
administration of justice
2)
Setting performance standards for judicial / quasi
judicial officers
3)
Improving terms & conditions of service of judicial
officers and court staff
4)
Publication of the annual & periodic reports of the
Supreme Court, Federal Shariat Court, High Courts, Subordinate Judiciary and
the Tribunals.
Holding of annual National
Judicial Conference is a step in that direction. The Conference shall also
facilitate the newly established NJPMC in its mandate to promote greater
transparency and accountability of the judicial system and shall help
facilitate in preparing plans/ strategies for strengthening the capacity and
performance of the courts in the country. It is expected that the policy input
generated at the conference should be fed into the policy making processes of
NJPMC.
The Conference shall discuss and
formulate plans and strategies to:
Although ‘singular theme’
conferences and seminars are focused and result in better quality outputs, this
Conference is proposed to have a multi-theme format to address issues
enumerated in the conference objectives. This is an appropriate and deliberate
strategy to achieve maximum benefit from this pioneer event, which affords rare
opportunity for joint consultation among members of the superior judiciary. The
themes are:
1)
Delay Reduction: Issues & Strategies
2)
Alternative Dispute Resolution (ADR)
3)
Improvements in Quality of Judgments
4)
Public Interest Litigation
5)
Legal Education
6)
Judicial
i. Delay Reduction:
Issues & Strategies
The delays in dispensation of
justice is a chronic problem and has been the main issue before the successive
Law Reform Commissions set up from time to time. The delay has tormented the litigant
public to an extent that today even those with meritorious claims are reluctant
to go to the courts for the redress of their grievances. Several reasons have
been put forward for this sluggish performance of the judicial sector, particularly
the subordinate courts, ranging from infirmities in the judicial governance and
administration to the weaknesses in the legal education, weakly disciplined
legal profession, incompetent investigation and prosecution, lack of citizens’
access to justice and legal information, to the inadequate justice sector
resource allocation. However, as mentioned before, the issues not directly
connected to or within the control of the courts, i.e. relating to the
investigation and the prosecution, remedial steps thereof and any impact on
delay reduction would also be deliberated upon. Likewise, the issue of
inadequacy of resource allocation would also be discussed to ensure adequate
finances to the justice sector.
This delay not only denies timely
justice to those entitled to it but it also creates perverse incentives for the
unscrupulous elements to abuse the process of law; and such trends are
discernible from the quantum of frivolous litigation that goes on in Pakistani
courts where the intent is to harass the other party or merely to cause delay.
Another indicator to bear out this massive abuse is the large number of cases
that are abandoned in early litigation and do not reach the decision stage.
The impact of this systemic
inefficiency is catastrophic. It has led to the sliding of many low middle
income families into the poverty trap and continues to keep many others from
moving out of the is vicious circle. The delay, in addition to exacting the
cost in terms of lost time, creates opportunities for corruption and is a
source of serious squeeze on the incomes of the poor. The dice of litigation in
Pakistani courts is heavily loaded against the poor and in favor of the rich
with greater holding power, both in terms of money and influence.
This state of affairs is neither
in the interest of the poor litigant nor in the interest of a business house;
both demand speedy justice. And the cost of delay to the society is enormous.
As mentioned earlier, the poor may not knock at the doors of justice and may settle
for unjust and socially less than optimal decisions (with consequences for the
social order not always immediately apparent); and the rich may not be willing
to invest in a jurisdiction where the delay and unpredictability do not
guarantee economically feasible outcomes. These individually rational decisions
of the rich and the poor ensure continuation of a repressive and exploitative
environment which does not allow the country to extricate itself from the
clutches of poverty and embrace social harmony and a decent economic growth
trajectory. At the conference, the participants are expected to look at the
issues and matters and hold a threadbare discussion for effective delay
reduction strategy.
ii. Alternative Dispute
Resolution (ADR)
The term "alternative
dispute resolution" or "ADR" is often used to describe a wide
variety of dispute resolution mechanisms that are alternative to full-scale
court processes. The term can refer to everything from facilitated settlement negotiations in
which disputants are encouraged to
negotiate directly with each other prior
to some other legal process, to
arbitration systems or mini-trials that
look and feel very much like a courtroom
process. Processes designed to manage community tension or facilitate
community development issues can also be included within the rubric of community
based ADR.
ADR systems may be generally
categorized as negotiation, conciliation/mediation, or arbitration
systems. Negotiation systems create a
structure to encourage and facilitate direct negotiation between parties to a
dispute, without the intervention of a third party. Mediation and conciliation
systems are very similar in that they interject a third party between the
disputants, either to mediate a specific dispute or to reconcile their
relationship. Mediators and conciliators may simply facilitate communication,
or may help direct and structure a settlement, but they do not have the
authority to decide or rule on a settlement. Arbitration systems authorize a
third party to decide how a dispute should be resolved.
Two kinds of ADR have been
practiced in
Recent Initiatives regarding ADR in
a. Code Of Civil Procedure (CPC) which is the primary
procedural law for civil matters in
b. Small Claims and Minor Offences Ordinance 2002 has been
promulgated for providing exclusive forum (at the district level) for
facilitating the resolution of smaller disputes. This law also provides ADR
mechanism for facilitating the resolution and settlement of disputes within the
framework of the formal court system. This could be transformed into an
excellent forum for addressing disputes in the emerging justice sector in
c. Under the Access to Justice Program, the review of
Arbitration Act represents a significant policy action. This review needs to be
undertaken and capacity building initiatives put in place to promote effective
arbitration regime in
d. A new local government system has been introduced in
The conference will explore the
opportunities to promote and encourage use of ADR and highlight its importance
in strengthening good governance.
iii. Improvement in the
Quality of Judgment
Judgment is the outcome of evaluation
of facts and evidence submitted by the court. A well written and succinct
judgment based on thorough analysis of facts and law is not only proof of the
intellectual strength of a judge but also reflects the quality of the judicial
system. In
The issue of writing a quality judgment is not merely important in improving the efficiency of judicial performance but it also plays an important role in gaining public trust in the justice system. It further provides evidence of professional standards in maintaining the reputation of the court in dispensing justice as litigant public expect a just, fair and quality justice and much depends on the content, structure and presentation of facts-the key elements in judgment writing processes.
Many research studies conducted in the past have underlined the need for quality judgment by superior courts to explain and elaborate the Constitution and interpreting other statutory laws. There is pressing need to develop jurisprudence. Art of writing a judgment is contingent on the knowledge, skills and expertise of the judge. The process of writing a judgments involves not only close attention of the judge but also the experienced professional court staff to assist the court in delivering a judgment which clarifies ambiguities, if any, to help develop jurisprudence.
Also the issue in hand is linked with strength of the constitutional framework and the legal system as good judgments will contribute to the image and perception associated with the justice delivery process. A judge delivering a quality judgment will do a great service and enhance the outlook of judicial system by securing quality. Clearly, unless judgments are drafted, formulated and presented in a just, succinct, and accurate manner, the process of dispensation of justice will suffer invariably. The reform efforts must mobilize technical and financial resources towards improvement in the quality of judgments at the level of constitutional courts.
An important strategic intervention to improve the skills and techniques for writing a good quality judgment entails the provision of adequate research facilities so that judges are equipped with trained staff well versed in assisting the judge with modern research techniques.
The conference will provide an apt opportunity to suggest ways and means to
enable the superior courts in particular the Supreme Court to give time to hear
important cases so that quality of judgment could be maintained. Drawing on
their years long expertise, knowledge and skills, the participants will examine
the issues related to quality of judgment in the light of their association
with judgment writing process. It is expected that with the valuable input
coming forth from worthy judges, prominent jurists, distinguished lawyers, the
conference will come up with key recommendations to improve the quality of
judgments at the level of the superior courts.
iv. Public Interest
Litigation
Public interest Litigation, in simple words, means, litigation filed in a court of
law, for the protection of "Public Interest". The concept of Public
Interest Litigation is not defined in any statute or in any act. It has been
interpreted by judges to consider the intent of public at large. Although, the
main focus of such litigation is only "Public Interest" there are
various areas where a Public Interest Litigation can be filed. e.g.
·
Violation of basic
human rights of the poor or the vulnerable groups;
·
Content or conduct of
government policy;
·
Compel public authorities
to perform a public duty; and
·
Violation of basic
fundamental rights.
Public Interest Litigation is a
desirable and indeed selfless and noble undertaking. It helps deliver civic
justice through speedy, adequate and effective redress upon violation of
constitutionally guaranteed rights. Public Interest Litigation is meant to
protect the rights of public as it brings questions of public importance before
a court of law which otherwise may not have been the case and the abuse
underlying public interest litigation might have remained unaddressed.
Notwithstanding the need and
urgency to take up issue of public interest through exercise of judicial
activism, the notion of public interest litigation should be encouraged and
promoted in respect of legal rights; because it is not always possible for
vulnerable individuals to litigate to protect their or public rights.
It is an established fact that Public
Interest Litigation strengthens the rule of law, furthers the cause of justice,
helps in securing civil liberties and accelerates the pace of realization of
the constitutional objectives. In
At the conference, the experts
will deliberate upon the benefits/merits of Public Interest Litigation and to
recommend measures to further promote it including the need to draft rules,
determine procedural requirements and raise public awareness on the subject.
v. Legal Education
The modern day society is experiencing fundamental institutional changes due to ever changing global trends and transformations compelling the governance machinery to change its outdated practices, procedures and approaches. The legal education sector is no exception. No doubt, the system of legal education assumes a critical significance in ensuring a stable, orderly and just social order. To substantiate the need for reforms in legal education, many a Law Commission reports have emphasized, from time to time, that access to justice can not be improved without substantial improvements in the quality of legal education. When lawyers, judges, legal scholars, governmental legal official and other law trained personnel are not well-trained in performing their jobs professionally, they become a hindrance rather than supporter to the delivery of justice. Recently, the Supreme Court taking notice of the abysmally low quality of legal education imparted by the public and private law colleges issued directions for proper planning of syllabi and teaching of law subjects to raise the standard of legal education.
The law students of today are the
judges and lawyers of tomorrow. In fact, the performance of the justice sector
is dependent on the quality of their professionalism, skills and knowledge.
Thus there is a strong linkage between the quality of human resources available
to judiciary and the functionality, integrity and legitimacy of the courts
system. In
Moreover, the progress on the
development and implementation of professional standards in legal education
system has been abysmally slow. There is need to see what makes it difficult
for us to introduce professional standards in legal education. Most law
colleges are run without any independent charters with part time faculty. Institutional arrangements for budgeting,
accounting, and financial management are poor.
All these issues necessitate formulation of a uniform legal education
policy. Innovative methods and activities will indeed help law students not
only in enriching their knowledge but also enhance their learning capacity,
make informed decisions and participate effectively in the justice system.
These activities are expected to eventually contribute to ensuring that country
has an accessible and responsive justice system that meets the needs of its
citizens.
The conference will discuss the
state of legal education in
vi. Judicial
The Judiciary acts as an arm of government and not as an opposition to the Legislature or the Executive but it has to be bold enough to set and declare the constitutional limits of the Legislature and the Executive. The Judiciary keeps watch and ward over the Constitution, rigid or flexible, written or unwritten. Judiciary stands between the State and the individual to supervise a regime of the Rule of Law and not the rule of men. Judiciary exists to ensure and act as a custodian and bastion of liberty and stands for the dignity of the individual –the guardian of the Constitution as it is rightfully described as the citadel of Justice.
a)
Lack of interference in the administration of justice;
b) Absence of interference in causes or matters before the Courts;
c)
Provision of adequate resources to the courts;
d)
The personal integrity of the Judge;
e) The Executive should not be allowed into a situation which enables or
offers the Executive the temptation to exert pressure on the Judiciary;
f) Appointing process in judiciary must ensure to select men and women
of the requisite caliber and integrity to the Bench;
g) Promotion Process is to ensure that those who make the grade are not
frustrated by arguments of seniority –the progressive Judges should not be held back by those who grow stale on the Job;
h) Discipline Process needs to allow those who do not make the grade to
honourably make way for those who are prepared to get on. The process should weed out the bad and thus leave the character of the Judiciary as a whole unblemished; The process if wisely used would avoid the disgrace that attaches to removal;
i)
Removal Process in judiciary should be the last resort
–but must be resorted to on account f judicial impropriety or misconduct.
Competence and integrity of a judge can be measured through his/her performance on the bench. Public satisfaction with performance and integrity of judiciary is extremely important for the judiciary itself.
Power of judiciary viz a viz the government requires proper management. None of the three pillars of democracy, the executive, the legislature and the judiciary should be provided with unbridled powers. Our system of government is a democracy. Judicial independence is an essential pre requisite for a judicial system in a democratic society however not without judicial accountability. Ideally there should be an inbuilt accountability mechanism in the judicial system so that its independence and integrity is not comprised.
The Conference is scheduled to
take place on 9-11 February 2007 in
This conference will provide a
forum for judicial leadership represented by all the Superior Courts of
Pakistan. Accordingly, invitations are being extended to all Chief Justices and
Judges of the Supreme Court,