By
MUHAMMAD MAJID BASHIR
B.Com, M.A, LL.B, DLL, DTL, DIPL, LL.M,
Civil Judge, Judicial Magistrate Sec.30
Director (Legal) PCP
Ministry of Information & Broadcasting, Islamabad.
E-mail: judgemajid@hotmail.com
United States, Supreme Court, Chief Justice William Howard Traft stated in 1926 that “the real practical blessing of our bill of rights is in its provision for fixed procedure securing a fair hearing by independent Courts to each individual”.
An impartial, independent Judiciary is the custodian of individual rights in a civilized society. In order for individuals to have faith in their Court system, all people must have access to the Courts when necessary.
A judiciary that is seen as fair and independent is an important component in sustaining their trust and confidence. It is known “Independent of Judiciary” the confidence of the people.
Living up to this ideal is a big challenge. It requires the involvement of many people, including legal educators, legislators, legal professionals, non governmental organizations and ordinary citizens. Effects to guarantee equal justice for all take many forms within our legal system.
Our constitution provides all these guarantees, justice, rules of law, equality before law, equal protection before law, and right to a speedy and fair trial by an impartial judge.
Above all these citizens expect that when conflicts between citizens or between the state and citizens arise. There is a place that is independent, impartial, safe and protective from undue influence, that is trustworthy, and that has authority over all the parties to solve the disputes peacefully and legally that’s why the Courts are considered the place of refuge.
For this very purpose and ensuring legal protections and educating citizens of their fundamental rights and responsibilities, we have to describes how this doctrine work in practice in Pakistan and how we all will contribute to making “equal justice for all” a true reality.
Court system has the mechanism recognized and accepted by all to resolve disputes peacefully. Alternative disputes resolution (ADR) system is a well experienced and appreciated system of resolving disputes in all civil society. In United States of America 80% disputes are being resolved through ADR mechanism which is quick, confidential and friendly in nature.
Access to Justice depends upon access to the Court, access in the theoretical or legal sense is not enough, rather, it is the results that flow from the decision made by the Courts that give it meaning. For example, the value of “access” is evident when the Courts decide that no one, especially those in positions of power and holding authority, is above the law, or when access requires the right to counsel in cases where one’s liberty is in jeopardy.
For the achievement, this idea of open access needs practical application of the fundamental right to access. The Court under the constitution will have to go through this judicial mill with grace and dignity. Denying access to the Courts forces disputes resolution into other areas and results in vigilantism, violence and disorder of law.
Protecting children and disabled and mentally retarded persons, equal access to the Courts is not deserve for adult citizens only. Children, mentally retarded and disable deserve the save access to the nation’s Courts became they too are citizens and deserve their day in Courts.
In Pakistan legal system, Juvenile Courts system and mental health Courts system do not exist practically. Children can not initiate legal actions without the assistance of adults. They may not know where to turns for assistance or even that help is available, and their voices are often unheard or unnoticed. Yet improving children’s access to the justice can help strengthen families and make victims of crime more likely to disclose their victimization and to support the legal process. We have to make our judicial system more accessible and amendable to children and their special needs.
Certain amendments are required in which we have to make testifying in Courts easier for children.
1. Special procedures, such as the use of closed circuit testimony and the assistance of special child advocates preferably lady lawyers can help lessen the potential trauma to child witnesses.
2. Child friendly Court rooms, where the furniture is scaled down in size or where the judge do not sit high above every one else, can help children feel more comfortable in the Court room setting.
3. The disable should be accommodated by installing entrance ramps, special elevators, hand rails, handicapped-accessible bathroom facilities and other modifications.
4. Mental health counts for the patient special privileges should be given to the accused on the recommendations of the medical officers.
5. The legal professions commitment is the next point which can close the heart of the public with the judiciary.
Now the role of the Bar associations is absolutely different from its conventional style. Bar association have to play a role of training institute, it’s the Bar associations which grant to the councils a force to enforce their rulings on the two impartial reasons:-
- Public trust and confidence in the system and
- A strong commitment by the Bar to work with the Judiciary to establish and demand compliance of judicial decisions.
The Bar has to work hard to provide trained advocated or counsels in new laws to help the public better understand the proceedings and the reasoning behind Judges rulings in an effort to inspire public confidence and generate thoughtful public debate.
We should remember that Bar and Bench are two wheel of Judicial system but we can make our system more stronger by adding litigants/general public and Court staff as third and forth wheel respectively.
Our Judicial family is facing many problems, people from different other sectors have entered in our profession and giving wrong messages while blaming judiciary for delay in justice, corrupt in Judiciary, lawyers involvement in cases ete etc. We have to tackle this problem seriously by providing free legal services for poor persons.Bar Councils and Bar Associations are already in persuasion and trying to curb down this mafia through scrutiny and surveillance.
The Bar Associations should give citizen a voice and take in the Justice system in their respective Districts and areas. Bar Associations rule of law activities support local efforts to improve access to justice by developing legal aid and public defender programme, improving case administration, developing clinical legal education initiatives. Bars Associations should educate the public as well as the members of the association through training programme, seminar and workshop in the field of advance housing rights, Environmental law, Intellectual Property (IP) laws, combat, domestic violence, Consumer Protection law, cyber law, Electronic Crimes, Maritime law, Public interest litigation, WTO, ADR, Child protection law, Mental health cases, specially when child is involve in these cases, human traffic king, judicial ethics, Bar and Bench role. The Bar Association may conduct and hold training sessions in these fields by inviting resource person from other countries and then may recommend the trained lawyers to judge for Mediation, Arbitration and local commissions. On going sessions and training programme should be continued and will remain the pivotal role of the Bar Associations.
Rights to representation in criminal cases, it has been seriously observed that the assistance of an attorney in criminal proceeding has not been provided to an accused whereas it is a constitutional protection and in all criminal prosecutions the accused shall enjoy the right to have the assistance of counsel for his defence. Government should arrange funds for the engagement of an attorney in criminal cases.
Bar associations may provides assistance to low and moderate income people in its jurisdiction, through its own staff attorneys, neighborhood legal clinic and an extensive panel of volunteer lawyers.
Clinical legal education (CLE) is another step to access to justice. Clinical legal education is a programme which enable law students to provide legal assistance to person and groups usually too poor to hire lawyers, working under the supervision of law faculty and sometimes other lawyers in their communities, law school clinic students learn how to practice law and solve client problems while providing access to the Courts for those in need.
Office Bearer of Bar Association such as the Lahore Bar Association, Karachi, Peshawar and Quetta and Islamabad should start a pilot programme on these directions with the help of local law schools. The leaders of Bar Association and the Judges should support clinical legal education because clinical programmes play an important role in ensuring that access to the Courts. CLE is one of the most effective way of teaching law students layering skills and the values of legal profession. The trainee may be received as law Clarks, Court officials and law researcher, assigned counsel witness and evidence keeping record, private investigation process serving etc legal writing and drafting etc.
In many countries of the world the legislation in high Courts would have to adopt laws or rules to permit students in clinical legal education courses to perform the work of lawyers. Even if, students are not given the license to practice law, clinical courses designed so that students may do as much of the work as possible under existing law and rules will be a huge step forward in these countries. In our country law students will feel more secure, confident and interestingly work in law field. We may remove this sign of frustration which normally exists among young lawyers and ultimately eliminates poverty and unemployment through implementation of clinical legal condition.
Educating the public and reforming the judicial system. Most citizens knowledge of their Court system is limited to their experiences as litigants, witness there should be a programme from Government to educate the public at large and to improve the quality and administration of justice.
Govt. may engage civic organizations, Bar Associations, Media and Government watch dog groups in its efforts to effect Court reform and to increase public confidence, it is very difficult to place a label on the relationship Pakistani citizens have with their Courts. Although, the Courts exist to serve the people, the judge’s duty is to apply the law in a fair and even handed manner. Education is the best way to resolve this tension, both of the citizenry and of the people who staff and run the Courts. Bar Association, media and non governmental organization can fill the role of educators, communicator and facilitator, bridging the gap between citizen’s expectation and the counts role.
We seek to engage citizens in all of our work. We speak to community groups, design programme for schools and publish and distribute citizens guides about the Courts.
Citizens must be educated about the Courts, the importance of Courts and the need for change only with such knowledge can they be fully engaged in the effort to achieve reform. Good Judicial system is the need of the hours. Bars Associations and judiciary will have to work very hard to carry on this system, in this programme we may design programme on judicial ethics, equality and fairness, programs for witnesses, legislating changes, Court fee, process of summonses and notices. I believe that initiating the separate sphere of the public and the Courts will enable us to improve the Courts and restore public confidence in the judiciary and the Court system.
Another step towards that direction would be Street Law. We should introduce street law for the service to the community, street law is a course in practical law, its focus is on the law that affects persons and every day lives more than 30 years ago, Georgetown University in Washington DC created a programme for its law school students to teach a course in a few local public high schools in the fundamental of law, democracy and human rights. The project became known as street law and eventually was extended to all public schools in the nation’s capital. Street law materials have grown from loose-leaf binder of lessons to a unique text book, now used in school districts in all 50 U.S states.
Street law, in which law students worked with community groups and somebody had the idea not only to work with community groups but also to actually teach in high school classes.
The street law book contains a general introduction to law and chapters on specific topics such as criminal law, consumer protection law and individual law. The book also is filled with problems, case studies and hypothetical solutions which are meant not to be just read as information but to be participated in by the reader and to be taught in an active way.
Street law helps the students become critical thinkers and participators in government. The street law class develops analytical thinking, expressive writing and logic types of skills.
In role plays, debates and trials the students are doing the thinking and the talking in a well taught street law class, you engage the students in more writing and more articulation which enhances their literacy skills. If, we chase the history, it is quite clear that how role of Judiciary had been remained very effective on all sector of the society. The more you involve masses in understanding of law or in judicial system, the more you produce sensible citizens.
Effective Judicial System has an impact on economy, democracy, culture, communities and building up of societies. This pillar of state is very strong which creates civic sense among the masses which leads to safety culture. The safety culture is the real difference between developed and developing countries.
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