Inaccessible justice?
Merely passing laws is not the end of the state’s responsibility
The writer is a barrister and UK solicitor who works with Aurat Foundation on law and governance issues
Before the law sits a gatekeeper — Franz Kafka
During a recent court hearing (in which I acted for the defendant), my opponent, (who acted for the petitioner) turned to me as we were addressing the judge to complain that I was in too much of a hurry to conclude the case.
In the small district courtroom, he pointed to a large pile of case files sitting behind the judge’s chair, and proudly informed me that he was the advocate in those cases (which were also apparently property-related cases). He informed me that all of those proceedings had been in the courts for three or four years and were nowhere near their final conclusion. Taken aback by my opponents seemingly cavalier approach to what would be serious and stressful proceedings for the unfortunate clients involved, I responded, perhaps too hot headedly, by asking how as a professional he was able to sleep at night?
My opponent would have known that these delays, which he appeared to so readily accept and encourage, would be affecting so many lives, both financially and emotionally. Where was his professional duty to his client to ensure these proceedings were concluded as quickly and efficiently as possible? My opponent was taken aback by my blunt comments.
Excessive and inexcusable delays in property-related cases has resulted in the vast majority of those that have any contact with the system, having little or no confidence in the judicial system. In criminal-related matters, where the outcome of the proceedings can result in the imposition of the most severe penalties the courts can impose, the judicial system is near collapse. It would not be an exaggeration to describe this state of affairs as a travesty. However, one cannot simply point the finger at unprofessional lawyers or battle-weary judges who are either unwilling or unable to exercise case management control in these proceedings, but one must also apportion blame to the successive government going back decades who have not applied the funding the system desperately needs. Without the necessary funding for the judicial system, the type of delay that many court users experience is unsurprising, even if largely avoidable. It is safe to say that an ever growing population has not been matched with an increase in the resources needed for justice sector institutions.
The barriers to the justice system are not only the poor perception of the system and its delay, but are also the practical challenges that court users can experience. The architectural layout of most lower courts, and even some high courts, in the country are not designed to ensure the protection and necessary space is provided to the most vulnerable, either as witnesses or victims. Physical barriers include those living in rural areas having to enter an alien, daunting court building where staircases and waiting rooms are shared with unrelated men. In the courtroom itself, it is often a small and packed room with mostly men, who are listening to what can be gruesome and very personal details during cross-examination.
The legal and justice system is largely weak, uncoordinated and lacks a service delivery focus. The various institutions involved are constrained by ineffective organisational capabilities; they are rife with institutional rivalries; they possess insufficient training capacity; there is a lack of active judicial case management; they are handicapped with low-skilled and poorly incentivised staff; there is insufficient data collection and analysis; there is inadequate infrastructure; there is a lack of good and independent oversight and training bodies; and, finally, there is political interference in decision-making, which only serves to further undermine the whole system. If this was not bad enough a thread that runs common through all justice sector institutions, particularly with the executive, is the heavy and consistent patriarchy — both in mindset and conduct.
Laws and the justice system as a whole have the capacity to transform society for the better by ensuring that dispute resolution is conducted swiftly and fairly and is accessible to any citizen that needs it. However, legislation in of itself is meaningless if it is not properly implemented by the justice system in an effective manner. An illustration of the need for effective implementation of laws can be found in the recently revised rape law. It may appear to an obvious statement to make, but laws protecting women from rape passed by parliament cannot be effective if the police are either unaware of the scope of the law, or do not know how to properly apply it for the benefit for whom it was made — the victim.
The nexus between access to justice and the importance of well-implemented laws is illustrated by a provision in the rape law that makes it compulsory for the police to inform a victim of rape that she has the right to free legal representation. The police are also required to provide the victim with a list of names of lawyers, as provided by the respective provincial bar councils, who she can engage. This provision is important for two reasons; firstly, free legal representation is the first fundamental step to ensuring that a victim has access to the justice system and to ensuring that victims are discouraged by having to pay for a lawyer to get the justice they have a right to; and secondly, there is an element of institutional transformation.
The police are now required to inform the victim that free legal representation is the victim’s right. This provision attempts to transform the institutional mindset of the police from one of laying the blame for the incident on the victim — she must have provoked the attack — to one that requires that she be recognised as what she is — a victim of brutal violence because of her gender, regardless of how and why the attack took place. Further, it reinforces the fact the state recognises victimhood and the rights that a victim is entitled to. This should be a counterweight to any misguided personal bias that may be held against the victim simply because she is a woman.
Inaccessible institutions and a slow moving justice system have led us to a place where inequality and injustice has become institutionlised throughout the whole system. It is arguably the delays, the financial costs and physical inaccessibility that have turned people to resort to unconstitutional structures such as Jirgas to have disputes resolved. Merely passing laws is not the end of the state’s responsibility. Improving access and opening up justice sector institutions that serve the basic requirements of ordinary citizens is the first step in bringing the law to life. We must not let the government forget this basic and fundamental aspect that regulates the relationship between the citizen and state — the seeking of and the providing of meaningful justice.
Published in The Express Tribune, August 27th, 2017.
During a recent court hearing (in which I acted for the defendant), my opponent, (who acted for the petitioner) turned to me as we were addressing the judge to complain that I was in too much of a hurry to conclude the case.
In the small district courtroom, he pointed to a large pile of case files sitting behind the judge’s chair, and proudly informed me that he was the advocate in those cases (which were also apparently property-related cases). He informed me that all of those proceedings had been in the courts for three or four years and were nowhere near their final conclusion. Taken aback by my opponents seemingly cavalier approach to what would be serious and stressful proceedings for the unfortunate clients involved, I responded, perhaps too hot headedly, by asking how as a professional he was able to sleep at night?
My opponent would have known that these delays, which he appeared to so readily accept and encourage, would be affecting so many lives, both financially and emotionally. Where was his professional duty to his client to ensure these proceedings were concluded as quickly and efficiently as possible? My opponent was taken aback by my blunt comments.
Excessive and inexcusable delays in property-related cases has resulted in the vast majority of those that have any contact with the system, having little or no confidence in the judicial system. In criminal-related matters, where the outcome of the proceedings can result in the imposition of the most severe penalties the courts can impose, the judicial system is near collapse. It would not be an exaggeration to describe this state of affairs as a travesty. However, one cannot simply point the finger at unprofessional lawyers or battle-weary judges who are either unwilling or unable to exercise case management control in these proceedings, but one must also apportion blame to the successive government going back decades who have not applied the funding the system desperately needs. Without the necessary funding for the judicial system, the type of delay that many court users experience is unsurprising, even if largely avoidable. It is safe to say that an ever growing population has not been matched with an increase in the resources needed for justice sector institutions.
The barriers to the justice system are not only the poor perception of the system and its delay, but are also the practical challenges that court users can experience. The architectural layout of most lower courts, and even some high courts, in the country are not designed to ensure the protection and necessary space is provided to the most vulnerable, either as witnesses or victims. Physical barriers include those living in rural areas having to enter an alien, daunting court building where staircases and waiting rooms are shared with unrelated men. In the courtroom itself, it is often a small and packed room with mostly men, who are listening to what can be gruesome and very personal details during cross-examination.
The legal and justice system is largely weak, uncoordinated and lacks a service delivery focus. The various institutions involved are constrained by ineffective organisational capabilities; they are rife with institutional rivalries; they possess insufficient training capacity; there is a lack of active judicial case management; they are handicapped with low-skilled and poorly incentivised staff; there is insufficient data collection and analysis; there is inadequate infrastructure; there is a lack of good and independent oversight and training bodies; and, finally, there is political interference in decision-making, which only serves to further undermine the whole system. If this was not bad enough a thread that runs common through all justice sector institutions, particularly with the executive, is the heavy and consistent patriarchy — both in mindset and conduct.
Laws and the justice system as a whole have the capacity to transform society for the better by ensuring that dispute resolution is conducted swiftly and fairly and is accessible to any citizen that needs it. However, legislation in of itself is meaningless if it is not properly implemented by the justice system in an effective manner. An illustration of the need for effective implementation of laws can be found in the recently revised rape law. It may appear to an obvious statement to make, but laws protecting women from rape passed by parliament cannot be effective if the police are either unaware of the scope of the law, or do not know how to properly apply it for the benefit for whom it was made — the victim.
The nexus between access to justice and the importance of well-implemented laws is illustrated by a provision in the rape law that makes it compulsory for the police to inform a victim of rape that she has the right to free legal representation. The police are also required to provide the victim with a list of names of lawyers, as provided by the respective provincial bar councils, who she can engage. This provision is important for two reasons; firstly, free legal representation is the first fundamental step to ensuring that a victim has access to the justice system and to ensuring that victims are discouraged by having to pay for a lawyer to get the justice they have a right to; and secondly, there is an element of institutional transformation.
The police are now required to inform the victim that free legal representation is the victim’s right. This provision attempts to transform the institutional mindset of the police from one of laying the blame for the incident on the victim — she must have provoked the attack — to one that requires that she be recognised as what she is — a victim of brutal violence because of her gender, regardless of how and why the attack took place. Further, it reinforces the fact the state recognises victimhood and the rights that a victim is entitled to. This should be a counterweight to any misguided personal bias that may be held against the victim simply because she is a woman.
Inaccessible institutions and a slow moving justice system have led us to a place where inequality and injustice has become institutionlised throughout the whole system. It is arguably the delays, the financial costs and physical inaccessibility that have turned people to resort to unconstitutional structures such as Jirgas to have disputes resolved. Merely passing laws is not the end of the state’s responsibility. Improving access and opening up justice sector institutions that serve the basic requirements of ordinary citizens is the first step in bringing the law to life. We must not let the government forget this basic and fundamental aspect that regulates the relationship between the citizen and state — the seeking of and the providing of meaningful justice.
Published in The Express Tribune, August 27th, 2017.