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Law and Justice Commission of Pakistan |
Strengthening
the Capacity and
Expanding
the Functions of
Report No. 45
Strengthening
the Capacity and
Under an MoU signed between the Government of Pakistan and the Asian Development Bank, the Bank has extended a loan of US $ 350 million for the Access to Justice Programme to strength the capacity of the relevant institutions namely superior/subordinate courts, Federal Law & Justice Ministry, Provincial Law Departments, Pakistan Law Commission, Federal Judicial Academy, Federal/Provincial Police Departments, Federal/Provincial/District Public Safety Commissions, Federal/Provincial/ District Ombudsmen and Bar Councils/Bar Associations, etc. The Programme also envisages the reformation and modernisation of civil/criminal laws, delay reduction strategy for courts and raising the quality of legal profession and legal education.
The
Access to Justice Programme envisages certain amendments to the Law Commission
Ordinance to strengthen its capacity and assign it some additional functions
including the management of Access to Justice Development Fund (AJDF). A sum of
US $ 25 million has been allocated as a seed money for the AJDF, and only the
interest accrued on the said amount, is to be expended on provision of amenities
to the subordinate courts, training at Federal Judicial Academy, improvement of
legal education, legal empowerment, legal/judicial research and legal
aid/assistance. The Asian Development Bank document (RRP: PAK 32023) Report and
Recommendation of the President to the Board of Directors on Proposed Loans and
Technical Assistance Grant to the Islamic Republic of Pakistan for the Access to
Justice Program (November 2001) speaks of expanding the role and mandate of the
Law Commission in promoting access to justice. Para 68 of the document states:
It
is stated that to support national policymaking for the administration of
justice, the mandate of the Law Commission will be expanded to include the
administration of justice and its composition expanded to include chief
justices, as ex-officio members, and adequate representation of other
stakeholders. Among other things, the Law Commission (LC) will focus on issues
relating to the administration of justice, such as (i) the working of the civil
and criminal justice systems; (ii) penal policy; (iii) initiatives, including
research on existing laws and regulations, to reduce the vulnerability to the
poor; (iv) from a public perspective, issues of finance and administration
relating to the justice system, to support adequate funding of justice
institutions and their efficient working; and (v) a special purpose fund called
the Access to Justice Development Fund (AJDF). The LC will be able to access the
research and development fund of the AJDF. In addition, to promote regular
review and coordination of judicial policy, a national judicial policymaking
body will also be formed for policies within the exclusive sphere of the courts.
This body will be formed in consultation with the chief justices of the superior
courts so the principle of independence of the judiciary is fully respected.
The
Asian Development Bank document also contains a letter, Development Policy
Letter of the Minister for Finance, Government of Pakistan addressed to the
President of Asian Development Bank, which affirm the commitment of the
Government of Pakistan to bring about necessary amendments in the Law Commission
Ordinance with a view to strengthening its capacity and improve its performance.
The letter states:
The
Government affirms the constitutional provisions relating to the independence of
the judiciary. Accordingly, the Government has taken a historical decision to
fulfill the constitutional mandate of separating the judiciary from the
executive by placing all executive magistrates under the control and supervision
of the judiciary. The Government also recognizes that in the past inadequate
attention has been given to administration of justice and judicial policymaking.
Accordingly, the mandate of the Law Commission will be expanded together with
its composition to include the chief justices of the High Courts as ex-officio
members. The reformed Law Commission will be provided adequate financial and
human resources to carry out its mandate. In addition, a national judicial
policy making body will also be established that is acceptable to the Chief
Justices of the superior courts.
An
envisaged in the Access to Justice Programme, the Secretariat prepared a Working
Paper on the proposed amendments in the Commission’s Ordinance for
consideration of the Commission. The Commission in its meeting held on 30 March
2002 discussed the Paper and after deliberations set-up a Committee comprising
the Chief Justices of 4 High Courts and Secretary, Law & Justice Division to
further examine the proposal and present report to the Commission. In the light
of observations of the Commission, a revised draft was prepared for the
Committee. In the revised draft, the present composition of the Commission was
by and lartge retained and some additional functions, as envisaged in the Access
to Justice Programme, assigned to the Commission. The salient features of the
revised draft were:
(1) The name is changed from “Law Commission” to “Law and Justice Commission of Pakistan”.
(2) The present composition of the Commission remains intact.
(3) The membership of the Chief Justice, Federal Shariat Court and 4 Chief Justices of provincial High Courts has been formalised by mentioning them as ex-officio members.
(4) A Chief Justices’ Committee, headed by the Chief Justice of Pakistan and comprising the Chief Justice of Federal Shariat Court and 4 Chief Justice of provincial High Courts, has been constituted to coordinate and harmonise judicial policy, and in coordination with the Commission, ensure its implementation.
(5) The Commission may constitute committees of one or more of its members to consider any matter and report to the Commission.
(6)
The following functions have been added to the draft in respect of
judicial administration:
(a) improving the capacity and performance of the administration of justice;
(b) setting standards for Judicial officers and persons associated with performance of judicial/quasi judicial function
(c) co-ordination between the judiciary and executive authorities of the Federal Government and provincial governments on administrative, financial and other related matters;
(d) set management information system for the courts and develop human resources for efficient court administration and management of case flow;
(e) improvement in the terms and conditions of service of judicial officers and court staff, to ensure skilled and efficient judiciary;
(f) prepare and operate schemes for access to justice, legal aid and protection of human rights; and
(g) publication of the reports of the Supreme Court, Federal Shariat Court, High Courts and Courts subordinate to High Courts, Administrative Courts and Tribunals.
(7) The Commission will manage the Access to Justice Development Fund of US $ 25 million. Only the income generated from this amount is to be expended under the following heads:
(i) 67% has been allocated for providing amenities in subordinate courts, facilities for litigants and financial incentive to judges, as determined by the respective High Court;
(ii) 5% for legal empowerment;
(iii) 5% for legal and judicial research;
(iv) 5% for Federal Judicial Academy
(v) 5% for improvement/innovations in legal education;
(vi) 3% for the Law Commission, as expenses for managing the Fund;
(vii) The Commission may also receive grants/donations and raise sums for utilization in discharging its functions.
(8) The reports of the Commission requiring legislative/executive action shall be placed before the Federal or Provincial Cabinet, as the case may be, and
(9) The Commission and the Chairman may, subject to such conditions and limitations as may be specified, delegate their powers under the Ordinance to a Member or an Officer of the Secretariat.
The Committee in its meeting on 18 May 2002, chaired by the Chief Justice of Pakistan considered the draft and approved the same with appropriate changes. The report of the Committee was also considered by the Commission on the same day and approved with minor modifications. The approved draft (Annex-I) was forwarded to the Government for implementation.
AN
ORDINANCE
to amend the Law Commission Ordinance, 1979