Diagnostic Study and Policy
Recommendations for the Justice
Sector Institutions in Pakistan

Alternative Dispute Resolution for Equitable Access to Justice

The Asia Foundation

Diagnostic Study and Policy Recommendations for the Justice Sector Institutions in Pakistan

Terms of Reference

Background:

The Pakistan justice system has been ranked as 106^th out of 113 countries with regard to access to justice for its citizens under the World Justice Project annual Rule of Law Survey in 2017.^[1]  Massive backlogs in the courts and endemic delays in the dispensation of justice have progressively diminished the confidence of the public in the formal justice system. 1.8 million cases are reported as pending.^[2] Moreover, corruption, inefficiency and lack of investment in capacity building of police and prosecution services have aggravated to a conviction rate of less than 10%.^[3] This is primarily because of structural weaknesses that remained unaddressed with the result that the current system is commonly described as “weak, poorly administered, under-funded, insufficiently transparent, low in morale and burdened by exceedingly slow court proceeding”.^[4]

There is no supervisory body in Pakistan entrusted to collect and monitor data on judicial performance. Under the National Judicial Policy-Making Ordinance, 2002, the National Judicial Policy Making Committee (NJPMC) is vested with the responsibility of publishing annual or periodic reports for the Hon’ble Supreme Court of Pakistan (SCP), Federal Shariat Court (FSC), subordinate and administrative courts. However, NJPMC does not appear to be exercising these functions. The Law and Justice Commission of Pakistan (LJCP) has sporadically published national data on pendency, institution and disposal of cases. The data is disaggregated in terms of different High Courts and each district.^[5] Additionally, the provincial High Courts also publish data on institution, pendency and disposal of cases before them and respective districts that fall under their administrative purview. In the absence of uniformity between data collection tools and methods employed by different courts, the data is published in an ad hoc manner.

It is also noteworthy that the way data is currently collected i.e. with a focus on institution, disposal and pendency of cases does not provide the actual number of cases in the system. A lack of uniformity in the ways High Courts count this data also contributes to its limitation as a basis of determining policy. For instance, it is not clear whether interlocutory applications are being counted separately as institutions, disposals and pendency. Therefore, a single case may be counted multiple times. There are no time standards or benchmarks against which a case can be classified as delayed. Accurate calculation of what is considered as timely is critical to make decisions regarding how many judges are required to address the current problems of delay and backlog. The systemic problems are further exacerbated because of COVID-19 and the lack of Information Technology (IT) solutions.

Rationale:

Evidence reveals there has been an increasing backlog of cases in the past few years. Consequently, the judiciary, particularly, the district judiciary has been strained with accumulated backlog. The cost of litigation has increased by manifold. Access to equitable justice is a fundamental right of every citizen. But there are impediments in exercising fundamental rights, especially for the vulnerable segments and under-resourced populations. In 2019, The Honorable Supreme Court of Pakistan (SCP) introduced the facility of video conferencing for recording of evidence and arguments by lawyers. This was a commendable step in judicial policy reforms as the intervention saves time, expense and resources. Similarly, the model courts established by SCP produced tremendous results throughout the country in speedy disposal of criminal cases. Some districts achieved zero pendency. While some progressive policy level steps have been taken recently. But there is a lot more that calls for attention. In the absence of advanced IT solutions, mandatory ADR in select category of cases and digitization of court records, the pace of justice sector institutions has slowed down. Therefore, it is imperative for the superior judiciary to formulate a viable policy to deal with extraordinary number of lawsuits in post COVID-19 scenario.

The Asia Foundation (TAF) believes that in the midst of COVID-19, it is much needed now than ever before to make the justice system responsive enough to enable the citizens to continue exercising their legal rights. TAF identified the following key factors that continue to obstruct efficient and effective delivery of judicial services in Pakistan:

(1) Large case backlog and inordinate delay in disposal of cases;

(2) Lack of IT solutions in court information systems and processes;

(3) Revision of the judicial structure to expedite resolution of cases;

(4) Lack of standards and benchmarks to measure judicial performance and

(5) Limited judicial capacity and expertise in referring cases for ADR.

TAF, therefore, intends to conduct a diagnostic study of the Pakistan’s justice sector institutions to inform the judiciary's approach by identifying systemic shortcomings and tabling innovative policy recommendations for inclusive and equitable justice sector services. The study will also discuss broader Rule of Law issues, structures and demand. It is envisioned that the study will be disseminated to increase understanding and awareness among the stakeholders, such as, the Honorable Supreme Court and Provincial High Courts of Pakistan of the key challenges facing the justice sector, as well as the importance of IT for case management in Pakistan; and will propose potential solutions for overcoming the identified challenges. The diagnostic study will conclude with a set of concrete policy recommendations to help promote improved mechanisms for judicial leadership to follow during and after COVID-19.

Objective:

Given the pressures on Pakistan’s judiciary, the superior judiciary needs to adopt innovative mechanisms to case management, procedures during trial and streamline ADR to reduce the burden on courts. This will lead to creating an enabling environment for speedy and efficient disposal of cases. Therefore, judicial reforms are critical to ensure equitable access to justice in Pakistan; the structure of the justice sector institutions must be adapted to (i) help accelerate the pace of case disposal in a speedy manner without compromising the efficiency and effectiveness of adjudicative process; (ii) promote the use of IT and enhance efficiency through supply-side and demand-side measures; (iii) support Alternative Dispute Resolution (ADR) to reduce the case backlog that strains the judiciary; (iv) devise mechanisms for better case management through digitization of case files and court records; and (v) chalk out the role of superior judiciary in taking essential measures during and after COVID-19. The main objective of the diagnostic study is to review and analyze the structural gaps and bottlenecks and showcase the international rule of law best practices, learnings and lessons to bridge the structural gaps in Pakistan’s judiciary.

Terms of Reference:

The Asia Foundation will hire a consulting firm to work with Technical Advisor – Rule of Law to undertake the following tasks:

• Critically analyze the shortcomings, gaps including the capacity gaps of judicial officers and administrative bottlenecks that either decelerate or encumber the efficiency of judicial system.  
• Present a set of recommendations for a New Direction for the Honorable Supreme Court of Pakistan and National Judicial Policy Making Committee (NJPMC)on the role of superior judiciary in the current situation, including:
• How the model can reinforce the viable mechanisms of Alternative Dispute Resolution (ADR) and what categories of cases can be best dealt with through ADR
• How the model can utilize IT solutions for better case management and speedy trials
• How the judiciary can improve the capacity of judicial officers to apply the law and serve efficiently
• How the model can institutionalize mandatory training for lawyers with focus on ADR and professional lawyering skills  
• How the model can discourage frivolous litigation
• How the model can ensure equitable access to justice for the poor either through pro-bono/low-bono mediation or legal services
• Demonstrate the applicability of the model by deriving international best practices for the judiciary and justice sector stakeholders such as, the Federal as well as provincial judicial academies, Law and Justice Commission of Pakistan (LJCP) and academia
• Demonstrate the effective methods for capacity building of judges and lawyers
• Disseminate learnings to the government (including relevant ministries, public officials and LJCP), members of the Pakistan Bar Council (PBC), Federal Board of Revenue (FBR), Federal Investigation Agency (FIA), Expeditious Justice Initiative (EJI) and academic institutions and individuals
• Present an analysis of the current justice sector governance in Pakistan and its progress towards Sustainable Development Goals
• Review the models adopted by foreign jurisdictions as a response to COVID-19  
• Identify lessons learned and policy points for effective justice sector governance in an evolving democracy and judicial system and suggest how this model can be adopted to enhance the efficiency of justice sector service delivery
• Propose a model for improved and advanced services, such as, mainstreaming of ADR, use of IT, digitization of court records amongst other, for superior judiciary and NJPMC and give implementation mechanisms to evolve into such a model
• Frame policy recommendations and present to SCP and NJPMC

Qualifications and Credentials:

The Consultant (Legal Expert)/Firm should have proven experience of:

•  Working with superior judiciary, governance and justice sector institutions in Pakistan and internationally.
• Undertaking similar assignments/projects with development sector.
• Presenting legal/judicial reforms to the Honorable Supreme Court of Pakistan, National Judicial Policy Making Committee (NJPMC) and Ministry of Law and Justice and Justice Sector Stakeholders.
• International law and rule of law related projects.

Methodology:

1. Literature Review and Research

• Review and analyze the present substantial and procedural laws as well as existing judicial policy of Pakistan
• Review successful international models that promote the rule of law
• Review innovative approaches in justice sector governance internationally

        2. Consultations and Interviews

• Hold meetings and consultation with a range of actors including but not limited to Judges of the Honorable Supreme Court of Pakistan, Honorable members of NJPMC, LJCP, FBR, FIA, EJI, Judicial Academies, Pakistan Bar Council, academia, civil society and rule of actors

       3. Diagnostic Study Report

• Analyze the structural gaps and shortcomings in both civil and criminal justice systems of Pakistan
• Derive policy points by identifying learnings and best practices
• Propose utilization of IT solutions to improve the working of courts
• Propose corrective measures such as, digitization of court record and how case management can be improved by use of technology
• Propose a viable model to contribute to National Judicial Reforms agenda and its implementation mechanism
• Prepare final report containing findings, analysis and proposed recommendations and present it to the Honorable Supreme Court and NJPMC

Implementation Plan:

The Consultants will rely primarily on desk research, telephone/skype interviews, and video conferencing to complete the study.

Deliverables and payments:

1.            Annotated outline (week one) [18.75 percent payment]

2.            Preliminary - zero draft (week four) [31.25 percent payment]

3.            Final Presentation Report (week six) [25 percent payment]

4.            Submit recommendations and final report to SCP and NJPMC [25 percent payment]

Deliverables:

1. Diagnostic Study (40-50 pages, with executive summary)
2. Policy Recommendations (presentation format, with pictorials/graphics)

Management Arrangements

The consultants will have the responsibility of work planning and implementation in close consultation with and under the guidance of TAF Pakistan Rule of Law Advisor.