Authentic discourse on reform

February 1, 2015

A path-breaking study on the intricacies of justice sector reforms in Pakistan

Authentic discourse on reform

It goes without saying that the judicial system of Pakistan is extremely deficient and is in dire need of fundamental and immediate reforms. However, so far, there is not a single comprehensive study which systematically analyses the root causes of the problems faced by the system of the administration of justice in Pakistan. This is despite the fact that many foreign funded projects were undertaken and a plethora of research work was produced to reform the Pakistani judicial system in the recent past.

Given the complexity and severity of the challenges faced by the legal and judicial apparatus in Pakistan, any piecemeal approach is predestined to fail. In this context, Dr. Osama Siddique’s study is both timely and to the point. The study employs a wide range of methodological techniques such as historical, empirical and sociological to analyse the judicial reform discourse in Pakistan. It also makes comparative references to the legal reform discourse in India.

The book is built around four inter-related themes: colonial context of the Pakistani legal system; problems faced by litigants in civil courts; crime perception; and critique of foreign funded legal reforms. It is divided into six substantial chapters and a final chapter titled ‘Toward a new approach’, which provides a conclusion along with recommendations. Each of the substantial chapters is packed with dense information based on qualitative research and quantitative data to the extent that each chapter is equivalent to a doctoral thesis in its own right.

The first chapter emphasises the need to link the judicial reform discourse in Pakistan with its colonial past because, according to the author, "in many significant ways, Pakistan’s colonial past and its post-colonial present are contiguous eras that seamlessly flow into each other in the historical continuum…" (p5). He then classifies the existing literature regarding "narratives of colonial displacement" of local legal traditions into three broad categories: desirable modernisation, inevitable modernisation, and radical displacement.

He highlights the complex and often contradictory process of colonialism by arguing "while violence and coercion may have at times played a role in pursuit of certain policy objectives, so did compromise, cooperation and acceptance." (p57). This chapter provides the most comprehensive overview of colonial legal history.

Chapters 2 and 3 are based on empirical data collected from various parts of the Punjab between 2009 and 2011. At the outset the author observes the poor quality of judicial and legal statistics maintained by the state officials. He then goes on to fill this gap by conducting an extensive survey regarding civil and criminal litigation by looking into the background of litigants, lawyers and judges, the cost of litigation, causes of disputes and delays in adjudication, alternative modes of dispute resolution, perception of the prevalence of crime, nature of various crimes, and crime reporting.

The depth of insights and the incisive nature of the questions raised in these two surveys are admirable. For instance, the author goes on to ask follow-up questions regarding the nature of litigation and whether the respondents would choose litigation if confronted with future disputes and thus come back to the courts to seek remedies. Surprisingly, 48 per cent respondents said that they would come back to the court in case they have a dispute in future. However, when they were interviewed further, out of this number, 77 per cent said that they did not have any other option.

Regarding the criminal litigation survey, the author observes that there is a causal relationship between the failure of the system of administration of justice and violence in society, as in many cases, failure to resolve a civil case led to criminal litigation. It also forced litigants to search for alternative mechanisms for dispute resolutions which included not only a recourse to extended family, panchayat and influential landlords, but also local crime lords and even local police and bureaucracy. (p165)

Chapters 4 through 6 provide a critique of various judicial reform projects in Pakistan including the Asian Development Bank’s $ 350 million Access to Justice Programme -- the largest externally funded judicial reform programme in the world todate.

It is observed that the reform discourse is ahistorical and decontextualised as it fails to take into account history, social realities, culture, political and economic realities and popular aspirations. This myopic approach is due to the monopoly of the ‘legal community’ who forms the ‘reform club’ in Pakistan, which includes judges, lawyers, policy-makers, and consultants. They focus primarily on formal law and legal institutions, and totally ignore the wider socio-economic, cultural and political environment in which the judicial institutions operate. This also exposes the weakness of the democratic system in Pakistan because politicians and legislators play a minimal role in the judicial reform discourse. As a logical consequence of this arrangement, the whole project of judicial-cum-legal reforms become bureaucratic and unaccountable. This also results in ignoring the alternative modes of dispute resolution, which could not only be efficient and cheaper, but also reduce the case-load of the judiciary.

Dr Siddique recommends a broader multidisciplinary approach which is able to "shift the focus of justice sector reform from a purely technocratic/legalistic perspective to a legal-sociological viewpoint". (p434) This is because the causes of many problems faced by the ordinary litigants in society "lie far beyond the adjudicative and corrective capacity of the courts". This requires "a deeper understanding of what causes societal dispute and resulting litigation". The book concludes with the prescription, "… the ‘cultural hegemony of law’ will have to give way to a larger, more democratic, and richer consultation…"  (p436-7)

This is a path-breaking study both in terms of its content and methodology. The author has made full use of his academic and professional background to boldly engage with the intricacies of justice sector reforms in Pakistan. His empirical analysis is informed through insights drawn from such diverse theoretical frameworks as law and development, comparative law, legal anthropology, sociology of law, Indian legal history, legal theory and legal realism.

The next line of our national inquiry should focus on the issue of the political economy of judicial reforms in Pakistan, which will expose the impediments at local, national and international levels, and our future research should further specifically explore the process of the culmination of academic research into policy-making. This book has succeeded in providing the groundwork for such further research.

Pakistan’s Experience with Formal Law: An Alien Justice
By Dr Osama Siddique
Publisher: Cambridge University Press
Pages: 485
Price in Pakistan: Rs 1695

Authentic discourse on reform