To Overcome Institutional Challenges, Make Justice System More Accessible | Nida Usman Chaudhary
First Published by NayaDaur on May 4 2019
Pakistan’s justice system needs to be more accessible, gender-sensitive and equal so that people don’t need to resort to other informal platforms for getting their grievances heard. The trust deficit among public must be bridged, writes Nida Usman.
In an ideal world, there would be rule of law and a justice system that is effective in maintaining law and order in the land in a way which seeks to eliminate miscarriages of justice and ensure due process and a fair trial.
In an ideal world, people will access justice with faith and belief that justice will not only be done but be seen to have been done and its delivery will not be marred by a perception problem and a trust deficit that would make its users wary and skeptical of the system in place to resolve disputes and convict criminals for their crimes.
This will be preceded by effective laws and constitution and an impartial investigation and implementation regime rooted in notions of rights and liberties and operating in the backdrop of duties and responsibilities. The law will take its course as it would be expected and a desired, just and a proportionate outcome within the parameters of the law will be handed down, which it will be hoped will act as a deterrent for others and so on and so forth, the society will have an effective and efficient redressal mechanism for situations where human beings fall short of their legal duties.
Alas! In an ideal world we live not and so, in many countries the world over, people often resort to other forms of dispute resolution and retribution. These could take many different forms; some which have found acceptance within the formal legal systems such as the alternative dispute resolution methods (ADR) including arbitration and mediation, and others that are more informal and their acceptance more debatable for instance, the local justice systems such as ‘jirgas’ or ‘panchayats’ – the standing of which is at times contested and their decisions often controversial for being in violation of basic human rights and fundamental freedoms as we saw in Mukhtaran Mai case or in case of compensation marriages under practices of ‘swarah’ or ‘wani’.
There is yet another kind of ‘justice’ that, even though the civilized societies have mainly long abandoned in favour of a more formal justice system purportedly rooted in rules of natural justice, still surfaces in many parts of the world, including in developed nations for instance in the context of racial crimes but particularly in societies which are under-developed or developing in shape and form of ‘mob justice’, ‘jungle justice’ or vigilantism.
Pakistan too, has experienced its own share of vigilante cases including that of Mashal Khan and Asia Bibi where we saw what mob justice looks like and why it is grossly wrong for people to take the law in their own hands. The values of the formal justice system including that of due process, fair trial and innocence until proven guilty, no matter how tedious and cumbersome, are the fundamental principles of any civilized society and even though their implementation may be riddled in controversy, these are the basic and core principles of rule of law as well.
At all times, when need be, efforts should be made to strengthen the laws and their implementation within the formal justice process as opposed to jumping on a bandwagon that encourages vigilante justice because that has the potential to do more harm than good and it has the potential to be unconstrained and be out of control, like wildfire.
It further has the potential to hold people accountable for being ‘morally’ wrong and dilutes the idea of punishment and culpability rooted in law. It is polarizing and divisive. There is no objective benchmark or threshold against which to weigh vigilante’s call for justice and it boils down to a game of influence, power and control that empowers certain persons or groups of people over principles.
We have in the recent years seen the tendency to convict people in media trials and then feel angry at courts and judges when the prosecution failed to establish the crime. Unfortunately, this kind of moral vigilantism has become a hallmark of our society.
But why do people resort to this idea of justice? As mentioned earlier, ours is not an ideal world and the lack of trust in the formal justice sector, its numerous delays, inherent loopholes and internalized biases often leave people disgruntled with the system such that they resort to find their voice and solace on other platforms. With the advent of the internet and social media, such platforms are increasingly more accessible to people, they are decisively cheaper and simpler to access and are far more efficient, robust and swift than any of their counter-parts in recent past. At the touch of a button and with as simple as a ‘click’ or ‘enter’, people can type and/or project their voices to millions around the globe in an instant.
As in all scenarios where people’s voices are being suppressed or justice not being done, there is revolt and resistance, so to with social media, the scale of that revolt and resistance as a result of being let down by formal justice system, is on a magnitude that is unprecedented.
The trickle-down effect of viral hashtags as in the Arab Spring matter or the more recent #MeToo movement are prime examples.
Why is #MeToo so popular among feminists for instance? Because it gives a voice and platform to victims and survivors which the traditional formal justice system has been unable to. Perhaps because it is rooted in patriarchy, male-dominated and inherently misogynist or simply because it is ineffective and inadequate to accommodate the changing dynamics and culture of gender parity, equality, access and inclusion that seeks equal civil, social, political and economic rights for all people, especially women and other marginalized classes.
In this way, it may be said that a new medium of ‘justice’ in shape of social media has now emerged which in many ways has redefined ‘vigilante justice’ as an avenue in the online world. Whether that is a desirable end or not remains questionable in face of growing redundancy of our formal justice system.
While these online forums do provide an avenue of catharsis and an outlet because of our increasingly archaic and ineffective formal legal system, they do not provide justice as envisaged in the law and constitution of the land. Furthermore, it must be said that these online forums are also susceptible to abuse, misuse and create violence. In the absence of justice from the proper forums people feel frustrated and rely on them to vent their anger and call for alternative forms of accountability, often with disregard to rules of natural justice which must apply for any serious access to justice.
In this way, traditional human rights principles such as ‘innocent until proven guilty’ are not only called out for serving the accused but rather they are completely turned on their head and people are accused based on media talk shows and are considered guilty without evidence and are forced to prove their innocence because the burden of proof is sought to be reversed and placed on the accused instead of on the prosecutor.
While reversal of burden of proof is not in itself entirely unprecedented and while this may very well be the only option in some legitimate cases but, as a matter of principle, it is a very dangerous precedent in practice because it is such a thin line to tread.
People shouldn’t have to resort to online forums and accessing justice should never have to be a social media movement every time a victim or a survivor is let down by the formal system.
It is the duty of the state to ensure that its subjects have equal and inclusive access to the formal procedures and forums which are effective so that justice that is supposed to be seen to be done, is in fact actually done as well.
Might it be that if we had a more equal, gender-sensitized and accessible formal justice system that people would not feel the need to resort to these other platforms for redressal of their rights and claims? And this is an important consideration because, in absence of this connection and realization, we are failing to address the bigger institutional challenges that growing movements on social media and online vigilante justice are posing for our formal justice systems and consequently, for those principles of due process and natural justice that we study in our law schools.
If we do not wish for those principles to become aspirations of a by-gone era and truly wish to improve our justice system in line with social developments and global trends so that it remains relevant and effective as a forum, a few steps need to be taken. It is crucially important that we do some introspection for providing justice in a more effective, gender-sensitive and inclusive manner so that it retains the trust of its users and they resort to it as the appropriate forum for their dispute resolution.
The writer holds LL.B (Hons) and LL.M in Law & Development from University of London. She is the founder of Lahore Education and Research Network and the Women in Law initiative Pakistan and is currently serving as the Chairperson of Gender Equality and Diversity Committee of Lahore High Court Bar Association. She can be reached at firstname.lastname@example.org.