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National Judicial Policy 2012: An Analytical Approach

Unfortunately, inordinate delay in civil, criminal, rent, administrative, accountability, revenue, corporate and regulatory matters in Pakistan is raised on the edifice against substantive justice.

The two interconnected conceptions of justice may be traced in legal literature: the substantial justice and the procedural justice. For instance, Clause 40 of Magna Carta or the Great Charter of the Liberties of England (1215) asserts: ‘To no one will we sell, to no one will we refuse or delay, right or justice.’ Hence, the legal maxim ‘justice delayed is justice denied’. Likewise, the saying that justice rushed is justice crushed.

The clause implies the procedural justice. On the other hand, Islam, while assuming the temporal nature of procedural or adjective justice, ordains for the substantial justice and leaves space for different cultures and jurisdictions to legislate on procedural justice keeping in view their own set of circumstances. Perhaps this is the reason that modern leading jurisdictions clearly differentiate between the two concepts.

In International Shoe Co vs. Washington, 326 US 310 (1945), the Supreme Court of the United States while upholding the Fourteenth Amendment (about the due process) observed distinctly regarding fair-play (i.e. the due process) and the substantial justice.

Recently, in Eighteenth Amendment to the Constitution of Pakistan, Article 10-A has been inserted to underline the significance of the procedural justice. In this backdrop, the National Judicial Policy (NJP) 2012 Edition may be analysed. In this adumbration, it is being done in two parts. In part one, a brief resume of the NJP 2012 Edition has been presented; in part two, four chief analytical points are raised.

First, the NJP was launched in 2009 and was enforced the same year on June 1. Before analyzing the latest 2012 Edition of the Policy, it seems appropriate to initially take a look at the body that has issued it. The body that issued the Policy is styled as the National Judicial Policy Making Committee (NJPMC), which is a statutory body constituted under the National Judicial Policy Making Ordinance 2002. Its statutory functions are:

 The key features of the National Judicial Policy are strengthening the independence of the judiciary by its separation from the executive and ridding the courts of the menace of corruption, thereby presenting a clean and positive image of judiciary.
 (a) Improving the capacity and performance of the administration of justice;
(b) Setting performance standards for judicial officers and persons associated with performance of judicial and quasi judicial functions;
(c) Improvement in the terms and conditions of service of judicial officers and the court staff to ensure the skilled and efficient judiciary; and
(d) Publication of the annual or periodic reports of the Supreme Court, Federal Shariat Court, High Courts and courts subordinate to high courts and the administrative courts and tribunals.

The NJPMC is headed by the Chief Justice of Pakistan and its Secretary, Law and Justice Commission of Pakistan works as its Secretary. After the continuous consultation, the NJP 2009 was adopted. A similar amount of consultation took place in 2012 to revise the NJP, though with little fanfare as compared to the 2009 launch. The narrative gist of the NJP 2012 was given by the Chief Justice of Pakistan in the following words:

The key features of the National Judicial Policy are strengthening the independence of the judiciary by its separation from the executive and ridding the courts of the menace of corruption, thereby presenting a clean and positive image of judiciary. In this policy, we have set high goals for ourselves. The goals are to initially reduce and ultimately eliminate the backlog at the level of superior as well as subordinate courts and, further, to fix the timeframe for disposal of civil and criminal cases.

The criminal cases will get priority on account of the sub-human conditions in which the under-trial prisoners are kept in jails. Writs for protection of fundamental rights i.e. right to life, liberty, equality, property and freedom of thought, conscience, association etc. will also be maintained on a fast track. Furthermore, the financial/rent matters and family/juveniles cases will also receive preference, which is vital to the economic development and the protection of family values.’
Finally, Secretary for NJPMC Habib-ur-Rehman Shaikh predicted: ‘It is hoped that the Policy will have far-reaching effects on making the judicial organ of the state as a sheet-anchor at the time of serious challenges.’

There are four chief observations, which merit discussion here. They are:
First, the document of the NJP 2012 Edition primarily focuses on the procedural and adjective justice. In fact, any society needs a good mix of both the procedural and substantive justice to survive. Only procedural justice will not do the job. Unfortunately, inordinate delay in civil, criminal, rent, administrative, accountability, revenue, corporate and regulatory matters in Pakistan is raised on the edifice against substantive justice.

In the meantime, it hinges on favouring someone. Likewise, the type of substantive justice, in which adjudications are done on legal principles and in line with legal ideologies, is also no goal in itself. In the report of International Crisis Group on Reforming the Judiciary in Pakistan, 2008, the focus is entirely on substantive justice in issues like blasphemy, women’s rights, minorities etc. The NJP 2012 Edition should have offered a mix of measures aiming at contributing both procedural and substantive justice.

Secondly, the focus of Short Term Measures (STM) in criminal cases is primarily on police. No doubt, the police’s role is pivotal in the criminal justice system but does it mean singling out and squashing a component at the cost of sparing all other components. This type of treatment is distorting, whatever, system is left.

 The NJP 2012 Edition should have offered a mix of measures aiming at contributing both procedural and substantive justice.
 Nowadays, judicial officers pass frequent orders for the registration of first information reports (FIR) against police officers in issues for which they are not directly responsible. For example, if a process is not served by a constable, the chief of police of a district is ‘directed’ to register an FIR against the station house officer (SHO).

The practice is based on the principle of vicarious liability, which may not be conveniently applied to administrative matters. On the other hand, such a treatment is not meted out to Patwari, Kanoongo, Tehsildar or other revenue officers. If he fails to issue fard (mutation), no administrative, disciplinary or the criminal action is initiated against him. It is true that the orders of judicial officers referred to the above emanate from justice of peace enabling legal provisions. However, nothing stops judicial officers from holding them in contempt or for ordering their senior officers to initiate departmental actions against them. The point being made here is that synergy of criminal justice system cannot be attained without moving in one direction; the cross purpose and opposing propensities will only cripple the system further. The judiciary is the deciding agency, whereas all the processing agencies like police, prosecution and prisons look towards it for ultimate direction of the criminal justice system.

Thirdly, as mandated by the NJPMC Ordinance 2002, the performance standards for judiciary may be set by NJPMC. The NJP 2012 Edition does cater to it, but only on the quantitative side and not on a qualitative side. The problem with over-emphasis on the quantitative aspect of dispensation of justice is that it, sometimes, in the rush of achieving quantitative objectives, tramples on substantive justice.

In judicial work, the qualitative aspect may be relatively easy to introduce as there is hierarchy of authority and many a judicial order is subject to review by another senior forum through some administrative vehicle like appeal, revision, review and writ. The point has been alluded to in the NJP by referring to judgement appraisal system, without elucidating it.

Fourthly, little attention is paid to frivolous, false, vexatious and malicious litigation and the legal processes. The police have been sending reports of false cases to judicial officers under Section 182 of Pakistan Penal Code, but almost no convictions materialise. Likewise, though there is mention of the Alternate Dispute Resolution, the Small and Minor Offences Courts and Section 89-A of Civil Procedure Code, the fact is that these are not put into action.

Resultantly, the criminal law is emerging as the law of relief in Pakistan. The tendency is to criminalise an otherwise non-criminal matter and by doing so inviting role of police in non-police matters. This is not only overburdening police, but is also translating into increased corruption and abuse of process.

At the end, it seems appropriate to acknowledge that the NJP 2012 Edition is a step forward and is at least an acknowledgement of the need to improve our system of justice.

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