CONCEPT OF PRIMARY JUSTICE IN OUR JUDICIAL SYSTEM

CONCEPT OF PRIMARY JUSTICE IN

OUR JUDICIAL SYSTEM

By

Dr. Zafar Ahmed Khan Sherwani, Ph.D.(Law)¹

Annual International Judicial Conference, 2013 was held from 19-21 April, by the Law and Justice Commission of Pakistan (LJCP) with the purpose to provide an opportunity to the stakeholders of justice sector to share experiences and evolve strategies for addressing the problems which are being faced by the judicial system. The declaration of the conference issued on the conclusion includes the recommendations of the group on Alternative Dispute Resolution, (ADR) which inter alia says that the "Lok Adalat" system as introduced and developed in India should be examined to see how it can be used for our mutual benefit and the ADR mechanisms already available in the law should be highlighted and fully enforced.

The Supreme Court is conscious of the huge pendency of cases before the courts of the country. It is an uphill task for a common man to get justice from courts in a speedy and inexpensive way. It's one of the responsibilities of every democratic polity to provide quick and inexpensive mechanism for dispute resolution for its people. Cropping of disputes amongst members of any society is a human phenomenon. Quick and inexpensive resolution of such dispute shave strong nexus with good governance. EveryState is responsible to provide aframe work to its government to cater for their need of quick and inexpensive dispute resolution, which should match their cultural and traditional mindset and universally accepted democratic standards as well.

Pakistan on getting its independence from the British Raj inherited an adversarial judicial system based on Anglo Saxon Laws. It has shown little change since then. This system has failed to deliver to the people at the grass root level. It has inbuilt technicalities and is prone to delays. It is almost impossible to get justice during one's life time after filing a case for any relief. Unfortunately no exercise has been made to improve it and to make it inexpensive, speedy and user friendly for the majority. The court's language is neither local nor national. People also have serious reservations on efficiency and capacity of their presiding officers. There is no proactive, quick and cost effective dispute resolution mechanism at the grass root level to cater for the needs on the subject; therefore common people have lost confidence in the system. I will not hesitate to observe with caution that if political leadership of the country does not take on this egregious issue seriously there will be a complete collapse of the system leading to anarchy. Any improvement in legal and judicial institutions especially in justice delivery system promotes the rule of law and good governance which is a sine qua non requirement for sustainable development.

Supporters of status quo argue that increase in the institution of cases before the existing courts shows public confidence in the existing court system. In fact this is the dilemma of people of this country. They have no choice but to approach these courts knowing that they would not get justice from them during their life time. Had there been an alternative system of dispute resolution in the country their choice for the courts would have been the last one. The Punchayt/Jirga system though in vogue in the country for centuries and serving as an alternative platform for resolving internal disputes amongst communities and their members at the grass root level has been declared illegal by the courts and is losing its credibility.

For this reason, majority of population does not get justice in an effective and speedy manner, on one hand, and there appears no move to bring about a paradigm shift, on the other. It is said that an increase in judges' strength is the only solution of the problem. This paradigm has made all the past initiatives and reforms in the judicial sector ineffective. Billions of rupees have been spent since decades to improve the system but the status quo prevails. An outdated system cannot be made productive through any investment. The loss of billions of rupees in the name of reforms such as "Access to Justice Program" is a criminal act of the rulers of the particular time. If an increase in the number of judges could result in access to justice for the masses perhaps India would have been the first to follow suit, therefore it has introduced "Lok Adalats" and "Court Annexed Mediation Centers" as an Alternative Dispute Resolution mechanism to complement and strength entheir court system.

Now, the question of vital importance is how the State can fulfil its constitutional obligation to provide a system for the masses in Pakistan to get access to justice to meet their need of resolution of disputes under the concept of Primary Justice System which should not only be effective, efficient, inexpensive but also user friendly within their cultural bounds?

Primary justice system helps communities to live in peaceful coexistence. (http://www.ccip-lilongwe.org) Primary justice is synonymous to primary health facility in the healthcare sector. People in case of any sickness do not immediately consult any specialist but they first try self medication and if it does not work then they go to their nearby poly clinic or general practitioner and as a last resort when all their earlier efforts fail, they go to specialists or hospitals as in door patients. "In health we recognize the wisdom of having general practitioners, community nurses, midwives and a primary care system which focuses on catching problems early, treating minor illnesses and keeping people healthy so they stay clear of hospital. Justice needs GPs. It needs a system that stops problems before they start - that catches symptoms and dispenses fixes that keep the community healthy and whole. This must be local, because it must be what the community needs, depending on what that community is like. It must depend on local knowledge and local people who know your street, your neighbour, your history and your family".( http://www.lgiu.org.uk )

In legal sector also a person in need of legal assistance before going to the court, should have a facility of legal clinic where his problem can be tackled at the local level in his village or town without resorting to the formal court system. At present he can only approach the formal court system without resorting to an alternative way. When legal clinics will be available he can resort to them for the resolution of the dispute through ADR mechanism i.e. informal arbitration, conciliation and mediation. Most of the disputes will be resolved at the inception at the local level inexpensively and swiftly without burdening the formal courts. These clinics can be established at local council level under our local body laws for which proper legislation can be made in support of the system by the provincial assemblies. The huge lawyers' fraternity mostly belonging to rural areas can be best utilized for these legal clinics on regular basis. Their connections with their local communities can be utilized to understand the real issues between the parties/disputants and enforce credibility and successful implementation of settlements. The local village heads and other educated persons of the area including women folk can also be utilized along with the members of legal fraternity wherever needed. A brief training from our Federal and Provincial judicial academies or at the law colleges in informal arbitration, mediation and conciliation would only be required for their capacity building. Civil society organizations and Non Governmental Organizations working in the legal field can also play their important roles in this area. A fee structure for the staff of these legal clinics can be a good incentive for rendering their services. In this way a platform can be made available for inexpensive and speedy justice at the grass root level to the needy people. This will improve the quality of life of our people, on one hand and improve the governance level in the country, on the other. Besides this our legal fraternity at large will be empowered by involving it proactively in the process of justice delivery system. This will also develop an environment befitting for the development of legal profession in the country. As an example I may refer to the honourable Chief Justice of Singapore who in his keynote address on the occasion of announcing work plan, 2013 for subordinate courts, announced the introduction of the Primary Justice Project at subordinate courts level to institutionalize early referral of disputes to ADR before case was filed in court. (www.subcourts.gov.sg).

The honourable Chief Justice of Pakistan who is also an ex-officio Chairman of the Law and Justice Commission of Pakistan may perhaps like to refer this proposal to the Commission for deliberations by the stakeholders and to recommend a comprehensive legislative framework to the provincial assemblies to make the Primary Justice Program a part of our formal judicial system to ensure speedy, inexpensive and effective dispute resolution mechanism at the grass root level and strengthen the country's formal justice delivery system.

Note:- The worthy readers specially from the legal sector may start a debate on the issue to challenge the status quo by presenting a new perspective on the justice system in Pakistan.