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Providing access to justice?

IN December 2001, the Musharraf regime signed a $350m loan contract with the Asian Development Bank (ADB) to initiate a set of composite reforms in the judicial governance of the country.

This four-year initiative called the `Access to Justice Programme` (AJP) aimed at improvements in the justice and police sectors and was supposed to be completed by 2004. Owing to the lack of capacity of the implementing agency, namely the ministry of law, justice and human rights, the project was extended to June 2008.

Against the backdrop of recent events that focused on the judicial landscape of Pakistan, it makes an interesting case to evaluate the impact and implications of this expensive reform project in a justice-deficient country.

Gen Pervez Musharraf, as the self-appointed chief executive of Pakistan, had outlined his seven-point agenda at the very outset of his regime in a midnight speech on Oct 19, 1999. Speedy justice — justice at the doorstep — was one of his pledges to the nation when he seized power. As a follow-up to the chief executive`s public declaration, the former prime minister, Mr Shaukat Aziz, who was holding the portfolio of federal finance minister in Nov 2001, wrote a policy letter to Tadao Chino, the then president of ADB in Manila, requesting him to provide financial assistance to carry out judicial reforms with a core objective to enhance poor peoples` access to justice in the country.
While referring to the proposed reform initiative, Shaukat Aziz in his letter to the ADB president stated, “Mr President, the AJP (Access to Justice Programme) is a first step on a long road to reforms that will strengthen the rule of law in Pakistan and make a qualitative difference to governance.”

In a swift response to this high-profile request, the ADB president presented his report and recommendations to the Bank`s board of directors in Nov 2001 in which he persuaded the BoD to approve the solicited loan by stating that the AJP will deliver benefits in many domains, which included (i) greater judicial independence, transparency and accountability; (ii) better citizen-state relations; and (iii) more durable public institutions responsible for delivery of justice.

Subsequently, the requested loan of $350m was approved by the bank in Dec 2001. However, the AJP`s internal evaluation, done by the ADB`s review mission and released in May 2006, observed a number of critical gaps in the project implementation and loan management by Pakistan`s ministry of law. The review report described the process of project implementation as “disappointing” and “uneven”. The 2005 Annual Performance Review observed that “The ministry of law, justice and human rights (MOL) and key implementing agencies (IA) lack experience in leading and implementing complex reform processes.” It further noted that though it had neither the experience nor resources, the Law and Justice Commission of Pakistan was assigned responsibility to manage the Access to Justice Development Fund. “This was a design flaw and the management would have been better outsourced to a professional managing agency as was agreed in the 2004 annual review mission and endorsed by the prime minister but never implemented,” the review report conceded.

According to official sources, less than two per cent of the technical assistance fund had been utilised since 2001. In early 2005, after a number of meetings between the ADB and MoL, key activities and timelines were agreed to address critical management issues. However, these agreements were not met during 2005. Therefore, the project duration was extended till June 2008 through a memorandum of understanding — signed on May 15, 2006 — between the ADB`s resident mission in Pakistan and the secretary ministry of law.

Now as the closing date of the AJP draws near — in June 2008 — the justice sector is in the grip of an acute crisis that has hit its internal governance. If the AJP is reviewed for the benefits that were envisioned against the backdrop of the judicial fiasco wrought by the Provisional Constitutional Order of Nov 3, it emerges as a Shakespearian `dramatic irony`. The regime in Islamabad has become the victim of its own claims and desires. Principally aimed at ensuring `efficient` and `inexpensive` justice, the AJP has instead cultivated the entrenched executive hold over the judiciary through extrajudicial means and measures.

One of the main objectives of the AJP was to strengthen judicial independence by implementing the policy of separation of the judiciary from the executive at all levels and ensuring that mandates of the judiciary are adequately funded. Contemporary realities speak otherwise. A judiciary that was spontaneously emerging as an affirmative and independent institution under the leadership of deposed Chief Justice Iftikhar Mohammad Chaudhry was packed home and a bench consenting to serve the dynastic interests of the ruling clique was invited to take over.

Subsequently, 63 out of 95 judges refused to subscribe to the dictates of Musharraf`s autocracy. Machiavellian treatment was meted out to the elected representatives of the lawyers` community, who came to the support of the defying judges. The protesting crowds that included journalists, intelligentsia, students, political workers and rights activists were silenced by the authorities through resort to brutal force under emergency-cum-martial law. The right of habeas corpus was denied to judges, lawyers and other detained political activists. The induction of new judges was made in contravention of a policy of transparency and merit, which was hardly what the AJP had aimed at.

At the conceptual level, a rigorous critique of the AJP was offered by the groups overseeing the strategic interests of international financial institutions in the internal governance of indebted countries. One objective of the AJP was to create “conducive conditions for pro-poor growth by fostering investors` confidence”. This was interpreted as the bank`s long-standing agenda to mould local judicial systems into guarantors of the flow of global capital through foreign direct investment (FDI). However, the Supreme Court`s verdict which nullified the privatisation of Pakistan Steel was officially termed as a shock to FDI prospects, undermining the strategic objectives of the AJP in the macroeconomic policies of the regime.

Moreover, the first out of 64 policy actions recommended by the AJP document was to “improve policymaking for a more efficient and citizen-oriented judicial and legal sector that promotes access to justice”. In terms of the legal entitlements of citizens regarding their right to be produced in and heard by the respective competent court, the issue of `missing people` was another deviation by the executive, which renders the objectives of the AJP a self-defeating convenience. The so-called terrorist suspects were kept out of the mainstream judicial dispensation. In fact this became one of the crucial points of contention between the judiciary and the executive.

Ironically, the AJP has enhanced the debt portfolio of the country while no impact has been made on judicial governance. It has failed to achieve its proposed objective of ensuring the access of poor people to justice. It has, however, succeeded in financing the executive`s whimsical undermining of the bar and the bench. Ironically, the common people of Pakistan will be required to pay back the loan, which eventually subsidised the political expediencies of the powers that be. Thus the programme has promoted the elitist interest in controlling and manipulating institutional powers for short-sighted political gains.

Source: Dawn

Byline: Amjad Bhatti

January 2, 2008

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