Security and justice challenges

Pakistan's regulatory systems are weak, legislation is passed but not implemented, public officials are generalists.

Based on perception surveys, World Bank analysis suggests that rule of law declined quite sharply in Pakistan between 1996 and 2009 — from 33:100 in 1996 to around 20:100 in 2007-09. In the region, Pakistan’s score was marginally better than that of Nepal and significantly better than Burma’s and Afghanistan’s. Much of this decline predates the dramatic rise in militancy in 2007-10 and indicates an acceleration of perverse incentives within the political economy of the legal and law-enforcement systems.  Women’s access to justice is particularly poor, although legislation from 2006 indicates some progress. Conflicts can arise among the three recognised legal traditions: English common law, British-Indian legislation and Sharia. Customary systems of justice (predominantly based upon tribal practice) provide vital services and are more credible in border areas, indicating alternative dispute resolution systems that have sprung up in response to poor regulatory frameworks.  According to the Supreme Court, unresolved legal cases increased year-on-year from 1995 to 2004, before the current chief justice came into office. By 2006, the number of petitions lodged at the Supreme Court had been reduced by 44 per cent over the previous year. A further decrease was recorded in 2007 (11 per cent) but the backlog has increased, once again, since the 2008 elections (12 per cent in 2008).

Doing the ‘thana-katchery’ rounds — to be caught between district courts and police stations — has become a running joke in Pakistan. The police are paid off to arrest people and the lawyers paid to spring them from prison. Many disputes end in deadlock: never-ending litigation while defendants languish in police cells. Local leaders, who deploy patronage to resolve disputes outside the legal system or help their constituents negotiate the complex system gain political stature, which they can trade for electoral loyalty. One consequence of patronage politics is that people’s direct experience of the state is extremely limited. The public education system, land revenue administration, courts and police remain the primary interfaces. Yet, incorporation of the law and order system into local patronage networks has created a market for a dispute resolution system running parallel to the security and justice sector.

The limited capacity of the security and justice system places grave stress on human rights as well. The 2010 Freedom House Index rated Pakistan relatively poorly on civil liberties at five (on a scale of one to seven). According to the Human Rights Commission of Pakistan’s 2009 annual report, at least 76 prisoners died and 163 were injured in jails across the country in 2008. Pakistan’s prisons are severely overcrowded: for example, 20,000 prisoners are incarcerated in Sindh, which has prison capacity for only 9,000. Women are also major sufferers, even though there has been legislation that tries to tackle their precarious legal status. The 2006 Women’s Protection Act is considered a major step forward, although its effective enforcement and impact — especially in more remote parts of Pakistan — is still to be proven.

Pakistan’s poor record in upholding human rights has only marginally improved since 2008; controversial legal arrangements that affect the rights of minorities and women have not been removed from the statute (other than by the 2006 Women’s Protection Act). The escalation in natural disasters and insecurity and the displacement of millions of civilians, rising sectarian and ethnic conflict and insurgency represent additional challenges to achieving improvements in the observance of human rights and civil liberties.

Many of the problems faced by the security and justice sector are the same as those encountered across the whole spectrum of laws; Pakistan's regulatory systems are weak, primarily because regulations are often poorly specified, regulatory agencies lack capacity, policy is inconsistent and there is a lack of transparency. Legislation is sometimes passed but then not fully implemented. These challenges are aggravated by the lack of technical specialisation in many sectors. Many public officials are generalists — and have to deal with vague legislation in addition — making robust development and enforcement of standards, and effective regulatory reform difficult to achieve. Regulatory reform proves difficult as specialisation, role separation and coordination is perceived as threatening or unnecessary. Regulation is a hot issue in all sectors in Pakistan and the challenge is to move the exploration of reforms beyond the tendency to think either of departmental silos or large additional bureaucracies, including enhancing the role of citizens and civil society in regulatory processes. In this environment, successful implementation of the Eighteenth Amendment will be determined by the ability of the legislators and the bureaucracy to properly align incentives, especially within the security and justice sector.

Published in The Express Tribune, January 20^th, 2013.