ROLE OF JUDICIARY IN DEVELOPING WORLD

ROLE OF JUDICIARY IN DEVELOPING WORLD

By

Mr. Justice Abdus Sattar Asghar,

Judge, Lahore High Court, Lahore

Former U.N. Secretary General Kofi Annan once stated "good governance is perhaps the single most important factor in eradicating poverty and promoting development." Development of a country revolves in seven arenas:

(i) Civil Society, i.e. the way citizens become aware of and raise political issues;

(ii) Political Society i.e. the way social interests are aggregated in politics;

(iii) Economic Society i.e. how state-market relations are structured;

(iv) Legislature; i.e. commands of the sovereign or the Constitution based on the will of the people;

(v) Judiciary i.e. the rules for how disputes are settled;

(vi) Executive i.e. the rules for stewardship of the system as a whole; and

(vii) Bureaucracy i.e. the rules guiding how policies are implemented.

The judicial arena is an integral part of a political process approach to governance, but it is also somewhat different from others.

2. Each society whether developing or developed, requires institutions and structures that can resolve disputes of private or public nature between contending parties. Administration of justice has a key- role in the development of the society. Administration of justice in a society is evolutionary process. In pre-modern societies vital organs that we consider separate today i.e. legislation, implementation and adjudication were controlled by a King, the sovereign authority. As societies became more complex and spanned over larger territories legal system also evolved with the growth of social, political, economic and administrative systems. As this transition continued, old rules were recast in a new combination. Nature became the property; economic relations became contract; and conscience became will and intent. Regardless of trivial differences, the role of law throughout remained subjecting human conduct to the governance of rules. Emphasis therefore remained not only on the rules themselves but also on the ways in which rules were applied in the society. Today we have reached stage that the way judicial institutions operate have an impact on a country's economic and development performance. The legal reforms advance freedom, a crucial and constitutive quality of comprehensive development.

3. Development depends on people being able to enjoy basic legal rights. A recent study of the poor conducted under the auspices of the World Bank confirms that these people have the issues of safety, security and access to justice as high priority. The institutional approach to these dimensions certainly affect development performance. Economic theory suggests that the judiciary might affect economic outcomes. Long time ago Adam Smith argued "a tolerable administration of justice" along with peace and low taxes, was all that was necessary to "carry a state to the highest degree of opulence". Ever-since, however, scholars have argued about the ways in which administration of justice may make a difference to development. The question is, what is more important; upholding property rights, enforcing contracts between economic actors, checking abuses of government power, or ensuring the rule of law? A recent World Development Report brings much of the recent evidence together and concludes that income and the rule of law encompassing the collective importance of property rights, respect for legal institutions and judiciary are highly correlated. It also shows that the absence of formal contract enforcement mechanisms has limited the growth of firms and the development of financial institutions. It envisages a direct relation between independent courts and the expansion of trade. Another study finds a strong co-relation between the legal protections to creditors and investment. Studies of like nature also indicate that widespread legal reforms are not necessary to attract foreign investments and that legal reforms are inherently slow. However, positive impact of solid legal frameworks on economic performance cannot be denied. For instance, work in Asia indicates that legal empowerment can improve circumstances of the poor and that a vibrant civil society and laws that protect it, are important for legal empowerment strategies.

4. Obviously much-vaunted role of economic growth has brought prosperity and high standard of living in all societies, however it has also brought unwanted spill-over effects. Judiciaries have, and will most certainly continue to play a pivotal role both in the development and implementation of fundamental human, social, economic, political, legislative rights and rules for sustainable development in the developing countries through fair, impartial and independent administration of justice. Access to justice, due process, fair trial and judicial autonomy are the key factors to achieve the goal of effective administration of justice to contribute in the development of a country. An independent judiciary is a haul-mark of a developing country.

5. The judiciary acts as an arbitery not only in a dispute between the executive and the individual but also between the executive and the legislator, the executive and the judiciary. Sometimes these disputes may be of a political nature, but Judges cannot avoid making decisions on them. The role of judiciary therefore in Politically Sensitive Areas becomes highly crucial. In politically charged cases the courts have generally shown excessive self-restraint. In a Constitutional State personal and property rights of individuals inter se as well as against the governmental institutions invoke the various jurisdictions of the courts. These rights are to be protected against private as well as public invasion. A threat to fundamental rights may come from private individuals or group of individuals. The constitutional guarantee of rights may be of no avail if private invasion of such rights is allowed. Blackstone in his Commentaries had assumed that fundamental rights were rights not only against government but also against private coercion. The judiciary, as a custodian of the rights of individuals has a duty to protect against private and public encroachment upon these rights. Sometimes threats to fundamental freedom may come from centers of private economic power. Monopolistic tendency in an industry may affect the freedom of trade or right to property to small businessmen. Even certain measures on the part of the government may effect rights of big or small businessmen. Role of judiciary becomes important to resolve such conflicts in developing countries.

6. Corruption is also a human right concern for development and good governance. Corruption hurts the poor disproportionately by diverting funds intended for development, undermining of government's ability to provide basic services, feeding inequality and injustice, and discouraging foreign investment and aid. Judiciary in the developing world has a revolutionary role to control the menace of corruption a crime against society. Growing behaviour of intolerance, fanaticism and terrorism in the developing world is a serious threat to the growth of socio-economic areas. An effective administration of justice on the basis of due process and fair trial is the best answer to such threats to life, liberty, equality and dignity of the human being.

7. Needless to say the judiciary cannot stand aloof and apart from the mainstream of the society. Judges must be sensitive to the "policies and the set economic and social goals of the nation, its economic and political pressures, and social stresses existing within the society". Failure to understand socio-political realities of a particular society may on occasion lead to unhappy conflict between the judiciary on one hand and the executive and general public on the other. At times, Judges may face very difficult and delicate choices. Cases before them may have international political overtones and may involve highly sensitive issues, or policy matters to which a particular nation is fully committed. In such situations, the mark of utility of a judicial decision is not the soundness of its logic, but its role in stabilizing the social and political activity of the nation.

8. In Third World countries judiciary may come across to the most difficult problem of constitutional breakdown seriously affecting its independence in case of imposition of martial law, army rule or declaration of emergency etc. Such unconstitutional or constitutional steps undermine independence of judiciary. Judiciary in developing countries has also to face such legal and political problems. An independent judiciary having the support of public opinion therefore is inevitable to wriggle out from such problems in order to restore and protect the fundamental rights, constitution and democratic political system. Judiciary in developing world cannot remain indifferent to national goals and aspirations. Justice Georges has summed up this perspective quite aptly when he said: "We in the Judiciary have sought without sacrifice of principle, to remain independent though not isolated, impartial but not indifferent, positive but not inflexible." He also said that Judges should lead but not from too far ahead"

BOOKS AND REPORTS CONSULTED

* Human Rights in 21st Century Changing Dimensions: By Gurdip Singh V.K. Ahuja

* The Judiciary and Governance in 16 Developing Countries: United Nations University Survey: By Julius Court, Goran Hyden and Ken Mease

* The Role of the Judiciary in Promoting Sustainable Development: The Experience of Asia and the Pacific: By the Honourable Justice Brian J. Preston Chief Judge of the Land and Environment Court of New South Wales Australia

*. The Independence of the Judiciary: A third World Perspective: By Yash Vyas

*. Corruption in Developing Countries: Its causes and Economic Consequences: By Edgardo Buscaglia, Ph.D. Crime Research Expert., Global Programme against Corruption (GPAC), Centre for International Crime Prevention, Office for Drug Control and Crime Prevention, United Nations Office at Vienna.