ACCESS TO JUSTICE PROGRAM AND THE PREVAILING JUDICIAL SYSTEM

ACCESS TO JUSTICE PROGRAM AND THE <!--[if gte mso 10]> ACCESS TO JUSTICE PROGRAM AND THE PREVAILING JUDICIAL SYSTEM By Riaz Hanif Rahi, Advocate High Court, Rahim Yar Khan The quality of judicial services cannot be upgraded by ignoring the common man to get the fruit of justice even after accepting heavy aid of US $ 350 Million from Asian Development Bank because people were expecting that subsidized justice would be delivered to them without spending heavy cost merely on delivering the statement of facts to the office and all the rules of technicalities like payment of court-fee, receipt fee, stationery, extra photo copies, copy to A.G. Office, computer copy of F.I.R. would be dispensed with. In order to combat with the back logging of the cases, they were expecting that 24 hours service shall be launched by hiring new judges on appropriate pay for appropriate period. But the wish of people is nothing short of a dream because in their attempt to get justice or knowing the admitted position thorough the print and news media that the people are not getting justice, they are becoming depressed from the system in spite of providing betterment in the judicial service after getting aid, the right of people to get access to justice is being denied at office level as the office of superior judiciary is enjoying unfettered power of raising objection of academic nature in order to block the cases and this is being done under extraneous consideration but if the position is not changed, then there would not be any use of other facilities as access to justice is the basic right of human beings in the absence of which the exercise of to the rights is it possible. Livingstone Armytage in his article[1] has proposed measures for the improvement of judicial services but proper treatment requires proper diagnosis and treatment of diseases present in judicial system is not possible without independent, impartial and fearless diagnosis. It is also in the common knowledge that public opinion is normally not invited while forming the policy or if invited, even then beaurocratic point of view is usually given preference also in judiciary like other Government institution as the officers look better while sitting in their position as they have better opportunity to act according to the requirement of donors and policy makers; but without understanding the actual grievances of the-public or providing them opportunity of being heard, there would not be proper balance and correct diagnosis of the problems which would become the reasons for the failure of the program because the ultimate purpose for the use of fund would be the redressal of grievances of the public by removing the barrier in the way of "Access to justice". It is also well-recognized that aid in the form of loan is only helpful in support of some program already in progress but aid to start a new issue without scientific calculation has often resulted in the failure of program. Therefore, for experimental purpose, aid in the form of grant is feasible. Following reforms for Macro Level changes are hereby suggested: 1. Independent Fund: The dream of independence of judiciary can never be turned into reality without getting financial independence. Judiciary must not depend for finance on executive because the dependence is otherwise the death of creativity and for this purpose, Articles 78, 118 of the Constitution must be amended or forced to be amended. 2. Appointment of Judge: Although in Malik Asad Ali's case[2], Supreme Court of Pakistan has finally decided about the need to appoint the Judges of superior judiciary purely on merits but the Government is still violating this principle for its own aims and designs which is resulting in the weakness of judiciay and executive excesses remained unnoticed. It has been observed in the executive summary of Asia Report No.86 dated 9-11-2004 that "political allies now fill key judicial positions, particularly the posts of High Court wield critical administrative powers over the allocation of cases to Judges and the assignment of Judges to courts across a province. The executive's power, via certain Chief Justices to direct a case to pliant Judges undermines lawyers and litigant's expectation of fair trial when the executive is a party. The executive also has improper influence over the electoral process via certain Chief Justices because the latter appoint the Returning Officers for election from among the rank of subordinate judiciary." 3. Quality of justice: Shortage of Judges, court houses, grossly inadequate facilities, renovation of existing Court houses and a dismal system of compensation aren't only the problems of judiciary but actually strong and skilful persons are needed as described in S.P. Gupta's Case [3]:-‑ "For the appointment of Judges of constitutional Courts, constitutional requirements and his mastery on law are insufficient but some additional qualifications are required like awareness of high priority task of eradication of poverty, removal of economic disparity, destroying the curse of illiteracy, ignorance, exploitation, feudal over lordship, coupled with conscious commitment to administering socio-economic justice, establishment of just a social order, an egalitarian society, then not only the value packing is not to be frowned upon nor thwarted by entrenched establishment prone people but it must be advocated with crusader's zeal. A Judge should be stern stuff and tough fibre unbending before power and uphold the core principle of rule of law. Be you ever so high, the law is above you. Krishna Iyar further suggests that a Judge must be built in resistance against pushes and pressure. He must be an expert craftsman in order to combat with rising challenges of law." Weak decisions are not only fatal for aggrieved persons but give rise to further litigation e.g. while issuing ad interim injunction the courts write at the end of the order a routine sentence that, "however, this order would not affect any legal proceedings" or sometimes Courts pass conditional decrees even in the cases like dissolution of marriage or while allowing writ petition, the public servants are not burdened with cost or the matter is again sent to the public servants for the interpretation of law. 4. Equality before the law: Mr. Justice (R.) Nasim Hassan Shah has made three things important for the purpose of maintaining "Rule of Law" i.e. absence of arbitrariness, awareness of law among citizen and equality before law. As equality before the law is an essential component of rule of law but provision for the accountability of public servants as in most of the laws are lacking. Concept of equality before the law can never be flashed without balancing the rights and liabilities by the process of legislation. The beaurocratic approach remains dominant and judicial discretion is also being slowly exercised. 5. Modernization of Laws: The main purpose for the enactment of prevailing laws is to strengthen the imperial rule and the litigants were to drag in Court still the time when the parties may arrive at compromise and the police system was also established to frighten the public in order to keep them loyal to the Government. All laws are required to be updated according to the needs of society. 6. Citizen -- Court Liaison Committee: It may not be only the function of the committee to resolve private disputes but the public must be required to point out the illegalities for the notice of Courts and if some public spirited individual may successfully prove the litigation and then they must be encouraged. Dispute resolving citizens must also be encouraged for welfare litigation so that they must have close link with Courts. Where there is no awareness of law, there is little chance of resolving in the dispute through private treaty. 7. Judges' Practice Manual: It will remain ineffective unless and until the Judges may have conscious knowledge that in case of mala fide attempts, they would be certainly answerable either before Supreme Judicial Council or before God but practically, most of the Judges do not like the law for their own conduct as predicted by Mr. A.R. Corneous:[4] "Whenever facts were brought to the notice of a Judge which contained the slightest objection to his hearing a case, he always decline to do so. It is possible that the learned Judges who heard the case under reference were annoyed at the way the objection was taken." Although, the objections are permissible to be raised before the Court in view of the above judgment and also to keep Article IV of Code of Conduct[5] in operative condition but the Judges felt annoyed. As a result of raising objection, I have been proceeded for contempt for two times. The immediate reaction after annoyance with a counsel results in the destroying of case causing the party to suffer for no wrong. Moreover, High Court Rules Vol. V is not available in libraries, law book shops but its availability is essential in order to regulate the function of High Court in lawful manner and delay in its reprinting is intentional. Apart from raising lawful objections, the Courts even felt annoyed even if their order may be challenged before them in review. Therefore, there would be no access to justice until the Judges, may not like to follow the law for their' own lawful conduct. 8. Institutionalization: A deciding Judge must cause impression to the public by his conduct that his impartiality can never be a matter of doubt and he must not permit his judgments in a case to be influenced by the irrelevant consideration of caste, creed, relationship, friendship, hostility or enmity as these things are also against the spirit of the oath and concept of institutionalization. Likewise, if the Courts are unable to invalidate an illegal act, then it means that the Courts are failing to perform their duty. Institution of justice can never be strengthened without strengthening the rule of law which requires that Government should not enjoy unnecessary privileges or exemptions from ordinary law and this rule also requires from Judges that they must remain alive to the truth that all power to prevent abuse is the acid test of effective judicial review but it would be pertinent to mention here that personal whim and choice is being used at office level and the objection form of Lahore High Court contains many objections which require academic debate. Therefore, the objections regarding maintainability, Locus Standi, entertainability, alternative remedy are in excess of power. Judiciary is impliedly and sometime expressly feel that justice is not being delivered to the public. Government functionaries have been repeatedly required in number of judgments to redress the grievance of the public within the meaning of section 24-A, General Clauses Act, 1897 and against police, the pubic has been required to seek the remedy under section 22-A while technique of A.D.R. has been introduced in order to resolve private disputes. Expressly it has been laid down [6] that "Judicial system is tottering on the brink of demolition". Again it has been said in a judgment[7] that "Poor litigants are losing their confidence in the prevailing judicial system." Therefore, it is also essential that the Judges must be capable of accepting the rising challenges. Unfit persons cannot find out the solution of a problem who. only have wish to enjoy the office and protocol less wish to yield productive service. On the other hand the Judges have complaint that the political persons have no respect for the rule of law and they have also habit of interruption as it has been written by the Chief Justice (R.) Ajmal Mian[8] that: Unfortunately, in our country on account of interruption in the political process, we have not been able to attain maturity in the democratic norms nor we have fully developed respect for the rule of law." Mr. Justice (R.) Sajjad Ali Shah has written in his autobiography[9] that: "I found that hard work and good performance in Courts were