Workshop on Access to Justice Development Fund

WORKSHOP ON ACCESS TO JUSTICE DEVELOPMENT FUND <!--[if gte mso 10]> WORKSHOP ON ACCESS TO JUSTICE DEVELOPMENT FUND Address by Mr. Justice Ejaz Afzal Khan, Chief Justice, Peshawar High Court [January 15, 2010] Hon'ble Judges of Peshawar High Court; Hon'ble Secretary Law and Justice Commission of Pakistan; Respectable Registrar and Officers of the Peshawar High Court; Hon'ble Members of the Bar; Learned Judges of District Judiciary; Distinguished representatives of the NGOs, academia, media and Civil Society Organizations, ladies and gentlemen! Asslam-o-Alaikum! I welcome you all at this orientation and consultation workshop on Access to Justice Development Fund organized by Law and Justice Commission of Pakistan. This type of workshop is destined to blossom and bloom, and shall contribute towards the independence and strengthening of judiciary. Movement of the lawyers as you all know added to the glamour of the judiciary. Heroic leadership of the Chief Justice of Pakistan in this movement ever since March 2007 added another glorious chapter to the history of this country. In any case the role of the Access to Justice Programme assumes much greater significance in as much as it contributed a great deal and still contributes in strengthening the judicial system of Pakistan and providing justice to weak and vulnerable segments of the society at their doorsteps. Not only that it also provided basic amenities to the litigants who hithertofore were left in the lurch. They were treated even below animal level but not caring for their instinctive compulsions. It is very strange that they contribute a huge chunk of money to the exchequer but unfortunately we don't spend anything on their comforts, we don't take care of their comforts, if and when they come to the court of law. Comfort is something too high-sounding in this connection even their basic needs are not attended to and it is really very delighting to note that Access to Justice Programme has contributed a lot in this connection. Hats off to this Programme which really raised the litigants to a human level, which is almost at par with any other developed country of the world. Dialogues discourses, discussions are always very important, man cannot think creatively so long as he sits in isolation, he thinks the moment he is contradicted, this is only possible when we get together, when we join our heads together and discuss our problems. This programme has provided us an opportunity. It is a psychological fact that association and interaction multiplies normal man's power of perception, deepens his insight and dynamises his will. This orientation and consultation workshop is an effort towards that end. It not only brings clarity of view vis-a-vis the identification of the problems but also provides means and resources for their solution. Many obscure and hidden regions come under light when people join their heads together. Let us use this occasion to identify the problems we face and let us deliberate to find ways and means to solve those problems. Ladies and Gentlemen! As you all know that under the AJDF sufficient financial resources are available on permanent basis to address these problems, all efforts are required to be made for the achievement of objectives set forth by this programme. Detailed presentation of Dr. Faqir Hussain on various areas of the Fund needs no further elaboration; therefore, the participants while seizing this opportunity are requested to focus on windows of the Fund relating to: * Legal Empowerment; * Federal Judicial Academy; * Innovations of Legal Education; * Legal and Judicial Research; * Management Window; and * Underdeveloped Regions. However, the window that directly concerns the district judiciary is Provincial Judicial Development Fund. An amount of Rs.30.60 Million has been received by Peshawar High Court out of which an amount of Rs.28.22 Million has already been allocated to the district judiciary for meeting their pressing needs within the framework of the Fund. A reference to an anomaly between the Law and Justice Commission of Pakistan Ordinance, 1979, and the rules relating to Fund, cannot be glossed over because it causes many hardships in the achievement of purposes of the Ordinance under which the allocated funds can barely be spent for improving the capacity and performance of the subordinate courts and providing amenities and facilities to courts and litigants, as may be determined by the High Court; but the said rules regarding the Fund restrict the expenditure to five areas only that are; automation, storage space for records, provision of court related conveniences and amenities to the litigants; and performance based incentives to the subordinate judiciary. But it may not be ignored altogether that as far as the parent statute is concerned, it gives power to the High Court to spend money on many other related projects but strangely enough the rules which have been enacted, have restricted that power and because of that, serious difficulties are faced by the courts. Though it is something too settled to be reiterated yet if and when there is a conflict between the parent law and the subordinate legislation, it is the parent law which prevails. Anyway this aspect has to be attended to. Either the rules are to be suitably amended, or the precedents of the superior courts are to be followed which provide that in case of conflict between the two, it is the parent statute which prevails and not the rules. So this matter in any case has to be taken up at higher level so that no impediment and no odd is created in the way of doing the things which are highly desirable and which are necessary in facilitating the cause of Access to Justice. Another important window of the Fund is legal empowerment. Who doesn't know that this is not possible unless the people are made aware of their rights and liabilities? They can only have recourse to the process of law when they are aware that they have certain rights and that they can be enforced if and when violated by anybody. It has been my consistent stance ever since our restoration that lawyers can play very important role in this and I often say that in the UK and in all other well-developed countries legal profession has been taken as a gateway to the politics. The lawyers who join the legal profession, they practise in law a few decades, with that practice they come to know the ins and outs of the law. They are better equipped to know what are the laws which are to be legislated afresh what are the laws which are to be repealed what are the laws which are to be revamped and updated and what are the laws which are to be exercised from the books of the statute and what are the laws which are required to be legislated to bring about betterment in the society; so to my mind lawyers can play very, important role in this; and they've demonstrated in this historic movement that they possess all the qualities a leader is expected to have. You know amongst Greeks there were three main qualities for a leader; one was LOGOS; the power to speak, it is also known as Oratory; that they had the powers to sway the people with the power of oratory. Second requirement was ETHOS; that Character that could move the people that could impress the people. Third was PATHOS; power to inspire the people, and this movement has proved that our lawyers fortunately possess all these qualities and if this quality and if this skill is used to make the people aware of their rights, I think the purpose of Access to Justice Programme can be achieved within a shortest possible span of time. None of these objectives can be achieved unless we concentrate on legal and judicial training. Yes! This is again very important which cannot be underestimated. What a judge is required to do when he sits on the bench. I recall a letter which was written by Hazarat Ali (Karamallah Wajhu) to the Governor of Egypt. In that letter he said: "Appoint those persons against the onerous slot of administering justice who are honest and upright, who are open to conviction and amenable to logic and argument, who never get weary by listening to the mass of details, who leave nothing unturned in exploring truth, who are never restrained by fear of loss of face to admit their mistake if and when it becomes manifest and who after arriving at truth pronounce it without any fear and favour." These are the pearls studded in our books but unfortunately we have either thrown them to the oblivion or racked them in the archives of libraries, where our visits are few and far between. It is high time for the lawyers to discover that heritage. They would come to know who should be a judge, what a judge should do, how should he conduct himself in the court and how should he decide a lis before him. All these things can be found in our books including those of Islamic jurisprudence. The books on Anglo-Saxon law also provide alike principles because it is based on principles of Roman Law, which also owes its origin to the holy scripture. We can have access to those books, we can read them and we can discover the ways and means as to how a judge should behave. Although Access to Justice Programme has provided an opportunity for training the judges, yet they should on their own make efforts to know how a judge is to behave, how he should explore the truth while administering justice, how a lawyer is to assist the court to enable it in arriving at a just conclusion. What are their allocated fields. How far a lawyer can go and how far a judge can go. They have their own spheres. A judge is supposed to be sober, as sobriety is characteristic of him. The adage that "he is as sober as judge" illustrates his that attribute. We both have our spheres; we can operate in that sphere and while operating in our spheres we can contribute a lot to the betterment of the society and to the harmony in the society. We can do a lot if we try to have an integrated outlook and make collective and concerted efforts. A sum of 12-million dollars, meant for Technical Assistance under the Access to Justice Programme, was, no doubt, frozen in June 2008, but it must be borne in mind that it was not because of our incapacity to spend it but because of the crises which overtook all the judicial institutions of the country. It thus has to be revived. Therefore, the matter be taken up with all the concerned in the Finance Division, Economic Affairs Division and Asian Development Bank for the revival of the said Technical Assistance in terms of its approved PC-II at least till the expiry of the main Access to Justice Programme till June, 2011. The revival of the said Technical Assistance would 'definitely augment the activities being presently conducted under the AJDF. Once again I thank all the honourable guests and Secretary Law and Justice Commission of Pakistan. Thank you very much! NATIONAL JUDICIAL CONFERENCE: ISLAMABAD DECLARATION (2010) 1. Every organ of the State should function within its own domain, working in harmony with each other so as to advance public good. Confrontation is counterproductive and hampers progress and development. The Judiciary of Pakistan being the third pillar of the State stands committed to faithfully discharging its functions as prescribed by the Constitution. 2. There is broad consensus with the objectives of the policy. It has been noted though that effective implementation of the policy requires strengthening the policy ownership, increasing its awareness among stakeholders, and a constant review process. The procedures for achieving policy objectives need to be reviewed. 3. For successful ADR, concrete steps, such as formal rules, a governing council, and professional training for all stakeholders is necessary. Trial Courts should support and encourage ADR, Importance of the subject requires the holding of an exclusive workshop. 4. Legal education being the foundation of the justice system requires to be imparted at all levels of society. In particular, law colleges and faculties require allocation of greater resources and an independent central supervisory body. For enhancing the quality of dispensation of justice, continuing legal education is essential for all tiers of the bench and bar. 5. To increase expeditious disposal of cases and for enhanced transparency, Court proceedings and records should be automated and made user friendly. For this purpose, sufficient funds should be allocated and relevant laws should be amended. 'A model `E-Court' should be established in each High Court and District Court. 6. For expeditious disposal of cases, it is imperative that manpower, infrastructure and resources are brought to at least the minimum required and allocated level. Frivolous and vexatious claims and defenses must be strictly penalized using the relevant provisions of civil and criminal laws. 7. A wholesome review of procedural enactment is required to simplify and modernize outdated and cumbersome procedures. Courts should utilize latest tools, including E-forms and biometric devices for expeditious filings and scrutiny of evidence etc. Scattered provisions in procedural/substantive laws should be consolidated. Pleadings, serving of process and recording of evidence needs updating. 8. Judges, lawyers, prosecution/police, witnesses and litigants, must all assume responsibility to ensure smooth functioning of the justice system and consequent dispensation of equitable justice. Each stakeholder must ensure faithful and timely compliance with the duty imposed on him.