Strengthening Governance through Access to Justice Editors AMITA SINGH Professor of Law and Governance Centre for the Study of Law and Governance Jawaharlal Nehru University New Delhi NASIR ASLAM ZAHID Former Chief Justice of Sindh High Court and Judge Supreme Court of Pakistan Currently, Dean Hamdard School of Law Hamdard University Karachi New Delhi-110 001 2009 STRENGTHENING GOVERNANCE THROUGH ACCESS TO JUSTICE Editors: Amita Singh and Nasir Aslam Zahid © 2009 by PHI Learning Private Limited, New Delhi. All rights reserved. No part of this book may be reproduced in any form, by mimeograph or any other means, without permission in writing from the publisher. Cover PhotosCourtesy: Malavika Singh and Raza Ahmad ISBN-978-81-203-3697-1 The export rights of this book are vested solely with the publisher. Published by Asoke K. Ghosh, PHI Learning Private Limited, M-97, Connaught Circus, New Delhi-110001 and Printed by Rajkamal Electric Press, B-35/9, G.T. Karnal Road Industrial Area, Delhi-110033. Contents Preface v INTRODUCTION Amita Singh 1 Section I JUST SPACE FOR THE POOR IN JUDICIAL SYSTEMS 1. GRAM ADALAT IN BANGLADESH Theory and Practice M. Abdul Wahhab 17 2. PANCHAYATS AND JIRGHAS (LOK ADALATS) Alternative Dispute Resolution System in Pakistan Irum Ahsan 27 3. LOK ADALATS AND JUDICIAL REFORM IN INDIA Archana Agarwal 38 4. FORMAL PERCEPTIONS OF INFORMAL JUSTICE Village Councils and Access to Justice Kripa Ananth Pur, Anirudh Krishna 52 5. POVERTY AND ACCESS TO JUSTICE Dimensions of Public Interest Litigation Anindita Pujari 65 6. REVITALIZING JUDICIARY Enhancing Access to the Poor Pallavi Bahar 76 7. JUSTICE WITHOUT LAWYERS Getting Ideas from China Xiong Ying 88 iii iv u Contents Section II PROCEDURAL FAIRNESS AND RESTORATIVE JUSTICE 8. GENDER, VIOLENCE AND POWER Retributive versus Restorative Justice in South Asia Ferdous Jahan 103 9. ALTERNATIVES TO THE JUDICIAL MESS Suggesting Mediation Dale Bagshaw 115 10. ISSUES OF EQUITY AND JUSTICE IN CLIMATE CHANGE A South Asian Perspective Angela Williams 126 11. JUDICIAL INTERVENTION FOR THE ENVIRONMENTALLY DISTRESSED IN PAKISTAN Saima Amin Khawaja 141 12. ELUSIVE JUSTICE Denial Frame for the Tribal Poor in India Priti Singh 151 13. GOVERNANCE AND JUSTICE Challenge of Weaving the Severed Bond in South Asia Justice Nasir Aslam Zahid 166 About the Editors 177 About the Contributors 179 Preface This book is an outcome of a series of meetings amongst senior researchers from South Asia starting at Beijing under the auspices of Network of Asia-Pacific Schools and Institutes of Public Administration and Governance (NAPSIPAG). A mutual sharing of concerns inspired a commitment to poverty reduction through an in-depth analysis of problems faced by all countries in this region. It was the realization that South Asia despite an enormous potential to lead the world witnessed a failing governance and a very high rate of policy backfiring. An obvious and yet a mysterious distancing of governance from concerns of justice perplexed researchers on South Asia and a glorified implantation of legal liberalism of the West explained most of the judicial reform efforts. Even committed drives to achieve pro-poor governance turned out to be nothing more than illuminating a ruined graveyard. In the end most formal frontiers of justice were obstructive and unapproachable. This inadvertently gave way to more informal or so-called people-driven locally-based arrangements which despite a possibility of their controls with the local dominant groups, which protected narrow vested interests of caste, religion and patriarchy, provided some hope for justice. The poor had no support in seeking justice. India, Pakistan and Bangladesh became the notorious front runners in failing the justice systems in the midst of a very active and alert civil society. This book brings together practising lawyers and activist academicians from Pakistan, Bangladesh, India, China and Australia. While an actual scale of the debate on access to justice is difficult to figure out at this stage when even the literature on vulnerabilities is half baked, yet the status of institutions of justice is firmly targeted in the book. These institutions are committed to restore basic equality enshrined in the Constitution to enable the fulfilment of basic needs by governments. This links governance more intricately with issues of justice to the poor. The journey to good governance navigates through the access channels available in any system. This book is also a journey into the history of administrative innovators who thought of a system which could advance without injustices to, or alienation from, the ordinary people. Justice Nasir has evoked concerns on betrayal of governance starting right after independence through early leadership in the post-partition land. He mentions a first-hand account of the role played by his father, (Late) Mr. Zahid Husain, who remained Vice Chancellor of Aligarh Muslim University, became Pakistans first High Commissioner to India, and then the founder and first Governor v vi u Preface of the State Bank of Pakistan. It was that productive period of his career during his attachment with the State of Hyderabad in pre-partition India, as its Finance Minister, which infused in him the intrinsic awareness of the substantive problems facing the teeming millions of the sub-continent. It goes to his singular honour, that Mr. Zahid Husain in his capacity as the first Chairman of the Planning Board, was the architect of Pakistans first five-year plan. He recommended massive land reforms, asserted the recognition of the rights of women, and highlighted the crucial and critical importance of education in Pakistan through the proposed reforms. It tragically portrays the mind of the early leadership that none of these recommendations were implemented by the government. The truth of his vision bore fruit when the same five-year plan was later adopted by South Korea and the results became quite visible. However, his dream came to be imbibed in his son, the co-editor, who during his tenure as judge, and later after his retirement took up the mission of a full-scale reform of the criminal justice system in Pakistan. This included prison reform, compassionate arrangements for juveniles and women convicted by courts, shelter homes and raising informal and local level judicial arrangements which could work in consonance and resonance with the mainstream judiciary. The editors of this book are particularly grateful to Mr. Kapil Kapoor, the Head of the Poverty Reduction and Economic Management Section of the World Bank in Washington and Mr. Raza Ahmad presently the Governance Specialist, South Asia Governance and Finance Division of the Asian Development Bank and previously a Capacity Development and Access to Justice Specialist. The theme of this book has been particularly influenced by discussions with the former Judge of Delhi High Court, Justice Rajinder Sacchar, and meetings with Mr. M.C. Mehta of the Supreme Court of India and of the Indian Council of Enviro-Legal Action who is also one of the most ardent advocates of sustainable development in South Asia. It is also worthy of mentioning here that the enormous storehouse of sensitivity and a wholesome understanding of this region as provided by Dr. Karan Singh the President of Indian Council of Cultural Relations in his various public lectures, has given a direction and a mission to complete this work. The indomitable courage and energy of Ms. Sreerupa Mitra Chawdhury, the National Advisor to the National Legal Services Authority of India (NALSA), a statutory body of the Government of India Act of 1987 for providing access to justice to the poor, has enabled many researchers to study intricacies of justice dispensation systems in India. She has been able to evolve a participatory community-driven approach for the poor in seeking justice especially to women in leadership roles in some remote regions of India. This also provided an insight into alternative dispute resolution systems working amongst the poor. Dr. Farhat from Pakistan who is the leader of an NGO, which is aptly called PANAH (shelter), works for women prisoners in Karachi and Lahore. Her participation and experience sharing has consistently enlightened the ephemeral and unreal shades of safety nets provided in terms of legal support to the paralyzed voices of the poor languishing in jails. The editors also recognize the valuable contribution of Professor Akmal Wasim of Hamdard School of Law, Hamdard University, Karachi, Pakistan, and Ms. Haya Emaan Zahid, LL.B., University College London, in the compilation of this work. Preface u vii It would also be appropriate here to mention a close encounter with the problem which has become the basic argument for this book. In February 2007 a group of twelve MPhil/PhD researchers from the Centre for the Study of Law and Governance visited Nithari, a village in NOIDA where more than forty children belonging to poor migrant dalit (the downtrodden in caste hierarchy) families were killed by a rich man and his caretaker over an alleged period of one year. It was a research trip that unveiled the death mask over the runway to development and knocked the researchers out of an academic slumber. They were convinced that governance failure has a very acute relationship with justice slippages. Three researchers Sylvia Yambem, Chetan B. Singai and Sahar Shah joined in to help the editorial team in a preliminary editing of papers contributed by the authors. The editors wish to acknowledge Ms. Sylvia Yambems consistent and painstaking editorial support right till the end of this project. Both editors also share their appreciation towards the CSLG faculty members, especially Dr. Jennifer Jalal for sharing her special skills in evaluating research methodologies in applied research areas. Her generous and unsparing support whenever required has facilitated work on this volume. Finally, the editors dedicate this book unhesitatingly to the potentially powerful movement for access to justice across South Asia.