report from the adb symposium on challenges in ... · deavor, its access to justice program in...

26–28 JANUARY 2005

Challenges inReport from the ADB Symposium on

ImplementingAccess to JusticeReforms

LAW AND POLICY REFORMAT THE ASIAN DEVELOPMENT BANK

This volume has been edited by a team comprising Kamal Ahmad,Christine Lao and Kirsten Weisenberger of the Law and Policy Unitof the Office of the General Counsel, Asian Development Bank.

© 2005 Asian Development BankAll rights reserved

The views expressed in this publication are those of the authors and donot necessarily reflect the views and policies of the Asian DevelopmentBank, or its Board of Governors, or the governments it represents. TheAsian Development Bank does not guarantee the accuracy of the dataincluded in this publication and accepts no responsibility for anyconsequences for their use. The term “country” does not imply anyjudgment by the Asian Development Bank as to the legal or other statusof any territorial entity.

Cover photo: Anamul Haque Anam

ContentsForeword..................................................................................................................................... 7

CHAPTER 1. Law and Policy Reform: An Overview .................................................................... 9An Introduction to ADB’s Law and Policy Reform Program........................................................................... 9Challenges in Law Reform ....................................................................................................................... 12

CHAPTER 2. Neglecting Law Reforms: Social and Economic Costs and Consequences ......... 14Costs and Consequences of Neglecting Judicial Reform ........................................................................... 14The Need for Judicial Reforms: A Look at India ......................................................................................... 17COMMENT: The Role of Judicial Reform in Good Governance and the Fight Against Corruption ............... 20Toward a Gender-Just Rule of Law ........................................................................................................... 26

CHAPTER 3. International Collaborations in Judicial Reform ................................................. 31EBRD’s Role in Judicial Reform and Training ............................................................................................. 31IDB’s Efforts in Legal and Judicial Reforms ............................................................................................... 33

CHAPTER 4. Improving the Police’s Role and Performancein Protecting Human and Economic Security .......................................................................... 36Ideas in Police Reform: General Overview ............................................................................................... 36

Police Reform: The Indonesian Context ............................................................................................. 36Police Reform: A Bangladesh Concept .............................................................................................. 39Looking Back, Moving Forward: A Brief History of Ideas and EventsRelevant to Pakistan’s Police System ................................................................................................ 42Organization and Administration of Pakistan Police .......................................................................... 46Open Forum ..................................................................................................................................... 47

Police Effectiveness and Accountability: Ideas to Launch Police Reform .................................................... 48The Philippine National Police: Transformation and Reform............................................................... 48Implementation of Police Reforms in Bangladesh ............................................................................. 50Access to Justice and the Urgency of Police Reform: A View from Bangladesh ................................... 51Open Forum ..................................................................................................................................... 52

CHAPTER 5. Enhancing the Effectiveness and Accountability of the Judiciary ..................... 55Access to Justice in the Philippines: A Prerequisite to Prosperity ............................................................... 55Philippine Action Program for Judicial Reform .......................................................................................... 62Challenges in Implementing Access to Justice Reforms in Bangladesh ...................................................... 65Challenges in Implementing Access to Justice Reforms in Pakistan ........................................................... 67Judicial Reform in Indonesia .................................................................................................................... 69Reform Developments in the Attorney General’s Office of Indonesia ........................................................ 72Open Forum ............................................................................................................................................ 73

CHAPTER 6. Operational Challenges in Judicial Reform ......................................................... 75Plenary Report ......................................................................................................................................... 75

A. Funding the Judiciary and Judicial Reforms ................................................................................... 75B. Judicial Ethics and Competence .................................................................................................... 77

Case and Case Flow Management ........................................................................................................... 78Case and Case Flow Management in Islamabad ............................................................................... 78Peshawar Solutions to Case Flow Management ............................................................................... 80Karachi East Operational Practices and Procedures to Case and Case Flow Management ................. 82Case and Case Flow Management ................................................................................................... 84Open Forum ..................................................................................................................................... 85

Court Registries and Process Service ....................................................................................................... 87Challenges to Improving Court Registries and Process Service: The Peshawar Context ..................... 87Karachi East Strategies for Improving Process Service ...................................................................... 89Improving Court Registries and Process Service ............................................................................... 89Open Forum ..................................................................................................................................... 91

Landscapes, an art historian once noted, are often

deceptive: they can hide more than they actually show.

So it is with attempts to define poverty just as a

function of income. True, without income, there is no

escape from poverty. But to understand the

predicament of the poor and their prospects for

overcoming poverty, one must go beyond the metric of

“dollar-a-day” existence. Poverty and its deprivations

must be seen in all their bareness: lack of education,

health care, nutrition, clean water, safe sanitation,

income, and—ultimately—the passage of premature

death. Alongside these deprivations, one must also

take cognizance of citizens’ rights that are denied, the

opportunities that are bypassed, the entitlements that

are wasted, the public services that are not rendered,

the liberties that are seized, the public resources that

are plundered, the terror of vulnerability that is

inflicted, and the sense of dignity that is devoured.

Indeed, in articulating its 1999 Poverty Reduction

Strategy, ADB acknowledged a move away from

income as the sole measure of poverty and recognized

these intangibles stemming from powerlessness and

despair as a part of the accounting of the

perniciousness of poverty.

—from Law & Policy Reform in Asia and the Pacific:Ensuring Voice, Opportunity & Justice

Asian Development Bank, 2005

■■■■■

ForewordLaw and Policy Reform as Poverty Reduction:Beyond Good Governance and Economic Development

The Asian Development Bank has a long-standing commitment to law and policyreform in our developing member countries (DMCs). In the past decade, wehave engaged in more than 400 law and policy reform-related technical assist-ance and loan projects spanning virtually all of ADB’s DMCs. We have focusedon a range of fundamental issues such as reforming the judiciary, creating a

more enabling environment for the private sector to effectively compete and prosper,enhancing bureaucratic responsiveness to public demands, promoting greater transpar-ency in public institutions through access to information, curbing corruption, extendinglegal protection against exploitative practices such as bonded labor, and introducingland registration laws that permit use of the land for collateral financing.

Similar efforts have been criticized for their alleged failure to achieve their goal tomainstream good governance. Critics claim that good governance efforts remain frag-mented because multilateral development banks (MDBs) that pursue economic and so-cial development through good governance measures are unwilling to address the politi-cal roots of government failure. They claim MDBs are too preoccupied with ensuring thestability and predictability of the legal framework and focus on private law to secureproperty rights and enforce contracts, but fail to achieve significant success becausethey do not address crucial issues such as independence of the judiciary, criminal justicereforms, or reforms that have been deemed too political by MDBs.

What is lost in this debate between MDBs and their critics is that legal and judicialreforms do not merely facilitate economic growth and development by improving institu-tions. Legal and judicial reforms do have a direct link to poverty reduction. Studies under-taken by MDBs have found strong correlations between measures of development andmeasures of institutional quality.1 Other studies have yielded considerable evidence of anegative correlation between citizens’ perceptions of judicial unpredictability andeconomic growth, and between corruption and investment.2 One recent study has con-cluded that the independence of a country’s supreme court is positively correlated witheconomic growth.3

ADB’s Reform InitiativesSince it identified governance as a primary concern in 1995, ADB has pursued law andpolicy reform activities aimed at addressing institutional and structural impediments tofight poverty. It has conducted a regional study qualitatively measuring the judicial inde-pendence of a number of its DMCs, tackling issues relating to budget autonomy and theplace and role of the Supreme Court in the judicial system—issues that have previouslybeen considered as too political for MDB involvement. ADB’s largest judicial reform en-deavor, its Access to Justice Program in Pakistan, has involved ADB in the process ofassisting the separation of subordinate courts from the executive’s control, thereby pro-moting judicial independence. ADB is also involved in the Philippines’ Action Programfor Judicial Reform, providing support to strengthen the judiciary’s independence. Theseefforts are informed by the conviction that, without addressing judicial independenceissues, other reforms undertaken in the judicial sector will yield marginal results.

1 Daniel Kaufmann et al., Governance Matters (1999), available at www.worldbank.org/wbi/governance/pubs/govmatters.pdf.2 Paolo Mauro, Corruption and Growth, Q. J. ECON. 681-712 (1995); Paolo Mauro et al., The Effects of Corruption on Growth, Invest-

ment & Government Expenditure; A Cross Country Analysis: in Corruption and the Global Economy (Sept. 1996) (On file with theJoint Bank-Fund Library); J. Edgardo Campos et al., The Impact of Corruption on Investment: Predictability Matters, 27 WorldDevelopment 1059-1067 (1999); Shang-Jin Wei, Address at the Brookings Institution (Mar. 12, 2003).

3 Lars Feld and Stefan Voight, Economic Growth & Judicial Independence: Cross Country Evidence Using a New Set of Indicators,EUR. J. POL. ECON. 497-527 (2003).

Raul B

. Del R

osario

Mr. Arthur M. Mitchell isone of the leading Ameri-can lawyers specializingin trade, investment andfinancing transactions inAsia. As General Counselof ADB, Mr. Mitchell is ac-tively engaged in the pro-motion of the rule of lawas a key development toolfor Asian countries and isa frequent commentatoron legal and regulatoryissues affecting trade, in-vestment and finance. Hiswritings appear regularlyin The Asian Wall StreetJournal, Nihon KeizaiShimbun and other publi-cations. Mr. Mitchell hasdealt with matters relatedto Japan for more than 35years and served in NewYork as head of CoudertBrothers’ Japan PracticeGroup. Mr. Mitchell holdsa B.A. degree from theUniversity of California atBerkeley (1970) and aJ.D. from the Harvard LawSchool (1973).

7

ADB is also embarking on reforms in criminal justice and police reforms. While re-forms in these sectors are not usually viewed as developments that directly contribute toimproving economic governance, these reforms are critical to ensuring the success ofpresent legal, judicial, and access to justice reform efforts. Without supporting reforms inthese sectors, the benefits of existing judicial reform efforts will likewise remain marginal.

Apart from its judicial reform efforts, ADB has been engaged in a variety of activitiesthat seek to reduce poverty by addressing intangibles stemming from powerlessness anddespair—human rights denied, opportunities bypassed, entitlements wasted, public ser-vices left unrendered, public resources plundered, and the terror of vulnerability inflicted—all of which are part of poverty’s perniciousness. After all, poverty should not be definedjust as a function of income.

As an attempt to mainstream the concerns of vulnerable groups, ADB is supporting aregion-wide project that explores the relationship between the existence of proof of legalidentity, such as a birth record, and access to resources, services, and opportunities. Suchlack of registration has significant economic, social, and political consequences, sinceunregistered persons are unable to access services available to registered citizens—edu-cation, immunization, formal employment, financial services, social security, access tojustice, property rights, suffrage, marriage rights, citizens rights, and inheritance rights.

In 2000, ADB commissioned a study of how legal empowerment contributes to goodgovernance, poverty reduction, and other development goals. The results of the Philip-pine component supported the conclusion that agrarian reform efforts were more suc-cessful in villages that had legal empowerment activities, as compared to villages thathad none. The survey also showed that areas with legal empowerment activities enjoyedhigher productivity, higher and more disposable income, and farm investments. Informedby these findings, ADB has focused on a number of law and justice reform efforts on legalempowerment—the use of the law to increase the control that disadvantaged popula-tions exercise over their lives. For example, ADB has provided support in Cambodia notonly for enacting a new land law, but also for raising public awareness of land law andincreasing the people’s access to mechanisms that would help them realize their rightsunder the new law. A video that was widely shown and a cartoon book that was widelydistributed around the country have increased public awareness of the new law, espe-cially among the illiterate.

ConclusionThe lessons learned in ADB’s decade-long involvement with law and justice reform are, insummary: First, law and justice reforms do have a positive correlation to poverty reduc-tion. Legal and judicial reforms do result in benefits contributing to economic growthand development. The results of recent studies showing this positive relation betweenlegal reforms and poverty reduction invite people to rethink their reluctance to addressissues that are presently deemed as political constraints to governance, particularly judi-cial governance. After all, legal and judicial reforms that are implemented in a piecemealfashion are bound to fail if the broader political context of governance remains unad-dressed. Second, poverty reduction means more than simply economic development.Legal and judicial reforms that promote social development and expand human capabil-ity—interventions that seek to protect the vulnerable and empower the poor—are bothcrucial and complementary to interventions that promote pro-poor sustainable economicgrowth and those that promote good governance.

—ARTHUR M. MITCHELLGeneral Counsel, Asian Development Bank

8

Chapter 1Law and Policy Reform:An Overview■ An Introduction to ADB’s Law and Policy Reform Program■ Challenges in Law Reform

An Introduction toADB’s Law andPolicy ReformProgramHAMID L. SHARIFAssistant General Counsel,Asian Development Bank

The Asian Development Bank’s(ADB) focus on law and policyreform raises some interestingquestions. Why, as an interna-tional financial institution,

charged by its Charter to be singularly de-voted to economic development, do we atADB care about justice? What price doesinjustice inflict on the body of an economy,even if we were blinded to the costs inflictedon its soul? How does poverty reduction,the overarching goal of this institution, farein the face of shifting levels of justice?Where, when, and how does the seeminglyintangible notion of justice become a tan-gible and an empowering force in the fightagainst poverty?

Law and Economic ProgressThe nexus between law and economicprogress is best established in the literatureof new institutional economics, which calls

for government regulation and planning ofthe economy, and for analyzing actualeconomic conditions rather than applyingabstract laws and principles. It empiricallydemonstrates that the predictability of out-comes and the efficiency in the administra-tion of justice have a veritable impact inattracting investment and fueling economicgrowth as well as in improving the generalmanagement of an economy. In other words,the establishment of the rule of law, at leastfor resolving disputes relating to contrac-tual or property rights, helps foster growth.

Even the indefatigable dean of free en-terprise, the Nobel Laureate Milton Fried-man, gave precedence to law over free en-terprise. In his preface to the Economic Free-dom of the World: 2002 Annual Report, Fried-man remarked in the context of transitioncountries that he was actually wrong in in-sisting on the mantra “privatize, privatize,privatize,” when in fact “the rule of law (was)probably more basic than privatization.”1

Much of the recent work on legal andjudicial reform has been driven by the de-sire to create an enabling legal environmentfor market economies. It is therefore notsurprising that many of these projects fo-cus on reform of commercial and businesslaws or systems of dispute resolution.

What price does

injustice inflict on

the body of an

economy, even if

we were blinded

to the costs

inflicted on its

soul? How does

poverty reduction,

the overarching

goal of this

institution, fare in

the face of

shifting levels of

justice?

■

1 Milton Friedman, Economic Freedom Behind the Scenes:Preface to James Gwartney et al., Economic Freedom of theWorld: 2002 Annual Report, at xvii, xvii (2002).

10 Report from the ADB Symposium on Challenges in Implementing Access to Justice Reforms

“...if you accept that human livesare both the end and the meansof economic development,securing citizens and their assetsin their daily environment wouldseem critical for any measure ofeconomic development.”

Hamid SharifAssistant GeneralCounsel, AsianDevelopment Bank

As Assistant General Counsel, Mr. Hamid L. Sharif heads the Office of theGeneral Counsel’s (OGC) South Asia practice group, as well as OGC’s specialpractice group on Law and Policy Reform, which has processed, among others,a loan package of $350 million dollars for the Access to Justice Program inPakistan—the largest and the most comprehensive type of program in the areaof judicial reform. Mr. Sharif has an LL.M. from Cambridge University and is aUK-qualified barrister.

Larry Ram

os

officials fosters corrupt practices. Yet, howdoes one limit the scope of discretion? InBangladesh as in Pakistan, and in manyother DMCs, the only forensic capacity anaverage police station will have is limitedto the ability to distinguish between humanand animal blood—the rest belongs to thedomain of judgment or what we might calldiscretion.

The phenomenal rise in private securityforces across the region, guarding the livesand assets claimed by those who employthem, may boost the gross national prod-uct (GNP) figures but it also hints at a dis-turbing trend toward the conversion of pub-lic safety—an essential public good—intoa private commodity. The economic costsare most severe in such circumstancesamong the small traders who peddle theirgoods on sidewalks and shops, the truckoperator who must ride through the nightto make his delivery, and others like them,for they meet their private toll collectorsalong the way and the tolls must be paid.And the cost is passed on to citizens.

Tackling the Whole SystemWe in the development community oftentalk about entry points and emphasize theimportance of the right entry point to makea difference. The choice of the entry pointmay vary from one context to another. Butso far, ADB’s experience in pursuit of judi-cial and legal reforms makes one thing veryclear: irrespective of the particular entrypoint, one must tackle the whole system.

One can begin reform work with thepolice or the prosecution or the judiciarybut, ultimately, each element of the systemmust mesh to make it all work. There has tobe consistency in approach, purpose, andmeans across the system. The judiciary can-not function effectively if the state struc-ture does not grant its independence. Butan independent judiciary without commen-surate accountability runs the risk of becom-ing irresponsible and of creating its owntyranny. Similarly, a vigorous public pros-ecution is less meaningful if the criminalinvestigation process is tainted.

ADB’s Access to Justice Program in PakistanADB’s flagship program in judicial reform isits continuing support to the Governmentof Pakistan under the Access to Justice Pro-gram (AJP). Over $350 million has been com-

Role of Criminal Justice ReformsParadoxically, what seems to have been lessappreciated—or at least less formally ac-knowledged—is the link between the crimi-nal justice system and economic dev-elopment. If you accept that human livesare both the end and the means of economicdevelopment, securing citizens and theirassets in their daily environment wouldseem critical for any measure of economicdevelopment.

Today, ADB is one of the few interna-tional financial institutions directly in-volved in supporting reforms in the crimi-nal justice system and law enforcement or-ganizations. Our experience so far emphati-cally reinforces the proposition that reformof the criminal justice system is fundamen-tal to economic development.

Consider this fact: the police forces ofmany of ADB’s developing member countries(DMCs) had inherited a system of financingfrom the colonial era where minimal budgetswere allocated for operating police stations.For an average police station in many set-tings, the annual allocation for non-salaryexpenditures would not be much above theequivalent of $100, while a single investiga-tion of a major case could easily cost manytimes the annual budget allocation for awhole police station. In such a context, howdo investigations get financed? What are theodds here that poor people can protect theirentitlements and interests?

It is now widely acknowledged that un-fettered discretion in the hands of public

Law and Policy Reform: An Overview 11

0

1000

2000

3000

4000

5000

6000

2002 2003 2004

Balochistan

Quetta

Sibi

Turbat

mitted for a program that, in its initial phase,addresses the needs of the whole system. Itis perhaps too early to draw final conclu-sions but there are already some remarkableresults and lessons learned.

A particularly dramatic developmenthas been the success of delay reductionstrategies introduced in pilot courts in Pa-kistan. While the problem of delay is stillvery serious, a number of courts have dem-onstrated that the problem can be solved.After these strategies were introduced, thenumber of pending criminal cases inBalochistan decreased from 5,691 in 2002to 3,523 in 2004. In the city of Quetta, thenumber of pending criminal cases de-creased from 3,332 in 2002 to 2,001 in 2004.In Sibi, pending criminal cases decreasedfrom 614 in 2002 to zero in 2004.

More remarkably, the enabling environ-ment for justice has been strengthenedthrough:• greater allocations of budget for the ju-

diciary and the police;• enhancing freedom of expression

through revision of oppressive con-tempt of court laws;

• strengthening the rights of citizensthrough a new freedom of informationlaw; and

• increased transparency regarding thejudiciary through publication of annualreports.

The Government of Pakistan has alsotaken the bold step of dedicating $25 mil-

lion for an access to justice developmentfund that is finally getting off the ground.The annual income of this fund will be avail-able to subordinate courts for improvingservice delivery to citizens, and to supportsubfunds for legal empowerment and im-proving legal education.

ConclusionSuch success rarely comes easily and with-out considerable cost. Often, the tempta-tion is to find options that are inexpensiveand that affect large numbers of people—the oral rehydration therapy equivalent, ifyou will, of justice. The growing affectionand even romanticism among many quar-ters for informal systems such as alterna-tive dispute resolution (ADR) springs fromsuch a perception. Yet mounting evidencesuggests that it can be a dangerous remedyto a difficult problem.

Informal dispute resolution mecha-nisms, which are seldom subject to judicialreview by the formal system, can no doubtprovide speedy resolution of a dispute andat an impressively low cost. Yet ADR oftenfails in delivering the fundamental objec-tive of justice. To the extent the informaldispute resolution systems are controlledby local elites, they are often inherentlygender- and class-biased and sanctions theyimpose may not withstand the minimumexpectations of human decency.

Similarly, there is the growing empha-sis on enhancing systems of administrativejustice so that most disputes between citi-

PENDING CRIMINAL CASES IN PILOT COURTS (PAKISTAN)

NU

MBE

R O

F CA

SES

YEAR

0

1000

2000

3000

4000

5000

6000

7000

2002 2003 2004

Balochistan

PENDING CIVIL CASES IN PILOT COURTS (PAKISTAN)

NU

MBE

R O

F CA

SES

YEAR

ADB’s flagship

program in

judicial reform is

its continuing

support to the

Government of

Pakistan under

the Access to

Justice Program.

Over $350

million has been

committed for

the initial phase

of a program

that addresses

the needs of the

whole system.

■■■■■


zens and state functionaries can be resolvedat the departmental level. This is a welcomedevelopment. Yet, just like the systems ofinformal justice, it can only work in theshadow of a functional and robust judicialsystem. Delivery of justice as a public goodthrough the formal judicial system is thelynchpin of these alternative systems fordelivering justice. Where the formal justicesystems fail, there will be failing states andfailing economies that leave citizens, par-ticularly the poor, vulnerable to the preda-tory behavior of state functionaries andpowerful private interests. Therefore, in thequest for justice, it is important to stay fo-cused on the ultimate objective of justiceand not be blinded by the mirage of rapidsolutions at low cost.

Challenges in LawReformGEERT H.P.B. VAN DER LINDENVice President for Knowledge Managementand Sustainable Development, AsianDevelopment Bank

The Asian Development Bank’s(ADB) symposium on Chal-lenges in Implementing Accessto Justice Reforms presentsmany opportunities to share in-

formation and best practices on judicial,criminal law, and policy reforms. To set thestage for discussions, a broad overview ofADB’s engagement in this important topicand the challenges that await are discussedbelow.

Building Legal InfrastructureOne might ask: What does legal reform haveto do with ADB? Why should we care? Thereare several answers.

First, ABD’s Poverty Reduction Strategyis underpinned by three pillars: pro-poorsustainable growth, social development,and good governance. Each of these pillars,in turn, is embedded in legal and constitu-tional concepts. Therefore, legal frame-works have much to do with its effective-ness in carrying out its mandate.

Second, growth will only benefit all

people when everyone, including the poor,is legally empowered. Legal empowermentgives the poor a better ability to play aninformed role in decisions that affect theirlives. Over the longer term, mobilizing pub-lic interest and expectations can, in turn,make public institutions more accountableto the needs and rights of the poor.

Third, there is growing evidence thateconomic growth needs to be supported bya good legal system. The Peruvian econo-mist Hernando de Soto, who dramaticallyhighlighted the power of property rights infostering economic development, has sug-gested that, in the absence of legal reforms,it could take several hundred years for de-veloping countries to catch up with the restof the world.

Finally, the rapid economic integrationthat is being witnessed in the Asia and Pa-cific region demands that countries coop-erate well with each other. The world is be-coming more and more globalized, withhighly complex international agreementscovering critical issues such as trade andthe environment. Countries without legalinfrastructure will find it very difficult toeffectively participate in international ar-rangements and are likely to be left behind.

Legal and judicial reform is therefore nolonger a human rights issue alone. It is alsoat the heart of catalyzing the full potentialof our economies.

Challenges AheadOver the last ten years, ADB has been in-creasingly mainstreaming law and policyreform through about 400 technical assis-tance and loan projects.

This includes the largest legal and judi-cial reform program on a global scale—the$350 million Pakistan Access to Justice Pro-gram, which targets a matrix of judicial, po-lice, administrative, and policy reforms.

While some progress on law and policyreform have been seen in many countries,there is still a great deal to be done in termsof initiating reforms and helping membercountries enhance their capacity to imple-ment and manage reforms over the longterm.

For example, the most basic of humanrights is the right to a legal identity. Yet, inSouth Asia, a shocking 63 percent of birthsgo unregistered each year. In East Asia andthe Pacific, the figure is 22 percent. It would

Where the

formal justice

systems fails, we

get failing states

and failing

economies that

leave citizens,

particularly the

poor, vulnerable

to the predatory

behavior of

state functionar-

ies and powerful

private interests.

■■■■■

Law and Policy Reform: An Overview 13

be reasonable to assume that the lack of alegal identity could easily go hand-in-handwith disempowerment and reduced accessto resources, services, and opportunities.On the other hand, compulsory registrationcould open avenues for rent-seeking andmisuse of information. ADB has initiated aproject to study the implications of legalidentity and develop a balanced approachto addressing the problem.

Another challenge is that while manycountries have enacted appropriate lawsand regulations, these are not necessarilybeing enforced or efficiently administered.For instance, many jurisdictions extend toall citizens, often through constitutionalprovisions, the right to legal counsel. Yet,in practice, the poor are seldom aided bylegal counsel, often due to lack of informa-tion and procedural problems in the system.ADB’s flagship program in Pakistan includesthe establishment of a $25 million legal aidfund to address this issue.

There are, of course, many other chal-lenges. Looking ahead, there is much to belearned by sharing information and experi-ences among countries and regions. Afterall, the law is knowledge, and the work doneto date in this area builds a knowledge basethat can and should be shared among coun-tries and institutions.

ADB recognizes that simply replicatingpolicies or institutional arrangements foundelsewhere will rarely be successful. Instead,each reform initiative must be anchored inlocal knowledge of institutional practices.However, the constructive experiences ofmany countries can inform efforts of others.

To illustrate, the People’s Republic ofChina (PRC) is contemplating a new set oflaws and regulations relating to competi-tion. While the change in the domesticeconomy is driving the impetus for legalchange, PRC is carefully examining the ex-periences from a wide range of jurisdic-tions to identify the most promising mod-

els. ADB has been pleased to assist PRC inthis process.

ConclusionThe Asia and Pacific region stands on thebrink of opportunity. Growth has beenstrong, poverty has been reduced, and theregion is well positioned to lead the globaleconomy in the 21st century.

However, in order to reap the full ben-efits of sustained economic growth, coun-tries must address long-standing issues ofgovernance and they must strengthen theirlegal and institutional frameworks. This is along-term investment and will require visionand firm determination. The long-term na-ture of the challenge, however, should notdeter any country from grasping the reinsand driving forward with change.

“Legal and judicial reform istherefore no longer a humanrights issue alone—it is also atthe heart of catalyzing the fullpotential of our economies.”Mr. Geert van der Linden assumed the position ofVice President of the Asian Development Bank(ADB) for Knowledge Management and Sustain-able Development in September 2003. ADB’sRegional and Sustainable Development Depart-ment, Economics and Research Department, andthe Office of External Relations come under hisresponsibility. Previously, he was Special Advi-sor to the President, developing ADB’s role in the areas of knowledge manage-ment, policy, and strategy. He also headed ADB’s response team to the region’sSevere Acute Respiratory Syndrome (SARS) outbreak. In 2002, Mr. Van derLinden was Director General of ADB’s East and Central Asia Department. Hemanaged the operations of the five divisions in the East and Central Asia Depart-ment—operations coordination; infrastructure; agriculture, environment, andnatural resources; social sectors; and governance, finance, and trade. He wasalso responsible for the ADB’s resident missions in the People’s Republic ofChina, Kazakhstan, Kyrgyz Republic, Mongolia, and Uzbekistan, as well asliaison offices in Azerbaijan, Tajikistan and Turkmenistan. Mr. van der Lindenholds a Masters degree in Economics from Erasmus University in 1972. Heparticipated in the Executive Development Program of the Harvard BusinessSchool in 1997.

Geert H.P.B. Van Der LindenVice President forKnowledge Managementand SustainableDevelopment,Asian Development Bank

Larry Ram

os


Chapter 2Neglecting Law Reforms:Social and EconomicCosts and Consequences

■■■■■ Costs and Consequences of Neglecting Judicial Reform■■■■■ The Need for Judicial Reforms: A Look at India■■■■■ COMENT: The Role of Judicial Reform in Good Governance and the Fight

Against Corruption■■■■■ Towards a Gender-just Rule of Law

The challenge of

change started

with the move

from a pre-

colonial frame-

work to a post-

colonial one. The

shift from one

framework to

another legit-

imately raised

expectations that

there would be a

qualitative change

in the people’s

lives and in the

kind of environ-

ment they lived in.

■

Costs andConsequences ofNeglecting JudicialReformKAMAL HOSSAINChairman, Advisory Council, TransparencyInternational; Chairman, BangladeshInstitute of Law, International Affairs; andChairman, Bangladesh Legal Aid andServices Trust

This symposium on Challenges inImplementing Access to JusticeReforms provides an opportu-nity for participants from differ-ent countries to share their ex-

periences about changes in their societies.It is the challenge of change—in each coun-try represented here and in law enforcementand judicial institutions—that we must facewith renewed vigor.

Legal, judicial and academic leaders nolonger have a one-dimensional view of dev-elopment, justice, democracy, or the mar-ket economy. Instead, they recognize thelinks between these different aspects of so-ciety in order to better analyze the chal-lenges to the realization of society’s legiti-mate expectations for these institutions.

The challenge of confronting and un-dergoing change began with each country’stransition from a colonial framework to apost-colonial one. The post-colonial eraraised expectations that there would be aqualitative change in the people’s lives andin the kind of environment they lived in: thatthe security of human lives and propertywould be increased; there would be equalaccess to opportunities for employment,and self advancement; and everyone wouldenjoy a better life.

Post-Colonial Market EconomyPost-colonial regimes in most of the Southand East Asian countries have broughtabout economic liberalization, which hastransitioned the economies from con-trolled, planned, and bureaucratically-man-

Neglecting Law Reforms: Social And Economic Costs And Consequences 15

aged to free market economies. Reform pro-grams continue to be driven by aspirationsto move toward democracy and marketeconomy. Alan Greenspan has noted theconnection between democratic govern-ment and free market economy, stating thata “bill of rights enforced by an impartial ju-diciary is...what substitutes for the centralplanning function as the guiding mechanismof a free market economy.”1

What does it mean to have a marketeconomy? A market economy is a competi-tive environment within which goods andservices are distributed so that they areavailable for purchase at a price the con-sumer is willing to pay. A market economydoes not promise to provide the highestprofit at any cost but, rather, that consum-ers’ needs will be met by the best competi-tor on the market. In order to function ef-fectively and efficiently, participants inmarket economies must be subject to therule of law.

Accountability and TransparencyThe market must be founded on fair rules inorder to level the playing field. Power,whether governmental or private, must notintervene to bend the rules of the market togive certain participants unjustified ben-efits. The transition to post-colonial democ-racy promises us a new framework of gov-ernment that moves away from the arbitraryexercise of power to one where power issubject to accountability. Post-colonialdemocratic governments are accountableto their citizens, responsible to those whothey represent, and subject to the rule oflaw. Accountability and transparency inpublic sector governance as well as privatesector corporate governance are necessaryfor a properly functioning market economy.

At the core of the principle of account-ability lies the impartial and effective imple-mentation of the laws. A democratic consti-tution sets forth the framework for what thepublic may legitimately expect of their gov-ernment and the limits of that government’spowers. A government that is accountableto its citizenry will ultimately be requiredby that citizenry to guarantee the constitu-

tional rights to equal protection and accessto justice. Power is no longer an end in it-self, but can only be exercised in terms ofgoals which are defined through constitu-tionally and legislatively determined pro-cesses. Leaders of democratic governmentsdo not espouse a Louis XIV-style attitudethat “I am the state,” rather, democratic con-stitutional governments are of the people.

Governments must be transparent inorder for the public to hold them account-able. It is now about 60 years since the pro-cess of decolonization began, but peopleare still struggling for freedom of informa-tion to overcome the blanket of secrecy thatcontinues to hide the abuses of governmentpower. Laws in many countries can still bebent in favor of privileged and powerfulgroups and individuals simply because in-formation relating to those actions is notpublicly available. As Justice Louis Brandeisof the United States Supreme Court fa-mously said, “sunlight is the best disinfec-tant,” which in this context can be under-stood to mean that transparency in govern-ment proceedings will root out abuses ofpower. Freedom of Information Acts providefor such “sunlight” in many countries. How-ever, legislation mandating transparency inthe books does not guarantee transparencyin reality. In India, for example, a Freedom

1 Alan Greenspan, Remarks at the Woodrow Wilson Awarddinner of the Woodrow Wilson International Center for Schol-ars (June 10, 1997) (transcript available at:www.federalreserve.gov/boarddocs/speeches/1997/19970610.htm).

“Access to justice must bethought of not merely as abenefit for the poor anddisadvantaged, but as anentitlement of all citizens,whether rich or poor. All personsmust be empowered to invokethe protection of their rights byway of the judicial system.”

Kamal HossainChairman, AdvisoryCouncil, TransparencyInternational; Chairman,Bangladesh Institute ofLaw, International Affairs;Chairman, BangladeshLegal Aid and ServicesTrust

Dr. Kamal Hossain is a practicing barrister, much of whose work involves inter-national law, constitutional law, and human rights. He served the Governmentof Bangladesh as the country’s first ever Minister of Law (1972-1973), and thenas Minister for Foreign Affairs (1973-1975), and Petroleum and Minerals (1974-1975). More recently, he has been the UN Special Rapporteur on Afghanistan(1998-2003) and is currently a Member of the UN Compensation Commission.He is Chairman, Advisory Council, Transparency International; Vice-Chairman,International Law Association; Chairman, Bangladesh Institute of Law, Interna-tional Affairs; and Chairman, Bangladesh Legal Aid and Services Trust.

Larry Ram

os


of Information Act was passed in December2002, but was not implemented.2

Political NeutralityEffective law enforcement and judicial sys-tems deliver justice by treating each caseneutrally with respect to the individual par-ties and with respect to political consider-ations. Court judgments are reasoned deci-sions that are subject to appeal within thecourt system and scrutiny by society atlarge. A judicial system only enjoys the con-fidence of its citizenry if it can show impar-tial fairness in adjudicating cases that isshared by the community as a whole. Thecommunity does not want a court thatbends with the winds of political change infavor of one powerful group or another. Ifthe judiciary becomes a part of the execu-tive branch, it is bound to be subject topolitical pressure: then impartial applica-tion of justice is impossible. In order to re-main independent and politically neutral,judicial systems must receive adequate fi-nancial and human resources, so that theycan enjoy sufficient salaries, equipment,and reasonable working conditions.

The police force must also be immunefrom political influence if law enforcementis to be impartial. The police protect thecitizens’ rights. However, the communitymust provide the police force with the nec-essary resources the same way that it mustprovide for the needs of the judicial system.The police needs the confidence of the com-munity and must not be subjected to politi-cal interference, so that it perceives itselfto be acting on behalf of the community andnot for its own personal gain or as a servantof the privileged and powerful.

Without impartial application of thelaws, there will be no rule of law. Withoutthe rule of law, there will be no guarantee of

security for personsor property. Increas-ing the accountabil-ity, transparency andneutrality of govern-ments, and especially

of judiciaries and police forces, will contrib-ute towards ensuring the impartiality of jus-tice within our democracies.

Equality Under the LawDuring the colonial order, there was noequality among citizens or equal protectionunder the law. There was discrimination bythe privileged against the disadvantaged.Constitutional democracies, however, guar-antee equality under the law and access tojustice. Access to justice must be thoughtof not merely as a benefit for the poor anddisadvantaged, but as an entitlement of allcitizens, whether rich or poor. All personsmust be empowered to invoke the protec-tion of their rights by way of the judicialsystem. Every citizen must know that she isentitled to equal protection of the law, andthat she may assert her rights and have thoserights recognized and vindicated, regardlessof gender, economic status, caste, religion,or political affiliation. Our reform effortsmust develop an enabling environment foraccess to justice and, to that end, promotetransparency, accountability, ultimately therule of law.

ConclusionAccess to justice is understood as a neces-sary precondition for fulfilling the poten-tial of democratic governments and marketeconomies to be accountable, transparentand politically neutral. When democraticinstitutions work and public power is ac-countable to the citizens, economic and so-cial development is encouraged, and can-not be obstructed, impeded, or preventedby the powerful and privileged.

The rule of law, which fosters economicgrowth in this way, is founded on the prin-ciple that everyone, including political andsocial leaders, is subject to impartial andneutral application of the law. If we canachieve such impartiality and access to jus-tice for all, the market economies we areengaged in building will contribute towardssustainable social and economic dev-elopment.

In order to

remain

independent

and politically

neutral, judicial

systems must

receive

adequate

financial and

human

resources, so

that they can

enjoy sufficient

salaries,

equipment, and

reasonable

working

conditions.

■■■■■

Anamul Haque Anam

2 Two years later, in December 2004, a new Right of Informa-tion Bill was enacted.

Sixty years after theprocess of decolonizationbegan, judges inBangladesh confrontissues relating to itscourts head-on.


The Need forJudicial Reforms:A Look at IndiaARNAB KUMAR HAZRAFellow, Rajiv Gandhi Institute forContemporary Studies, Rajiv GandhiFoundation

A good judicial system producesmany economic, political, andsocial benefits. An effective ju-dicial system is necessary tocheck abuses of government

power, enforce property rights, and enableexchanges between private parties. A fair,efficient, affordable, and accessible justicedelivery system aids in market development;supports investment, including foreign di-rect investment; and stimulates economicgrowth.

Of the three branches of government,the judiciary is “in a unique position to sup-port sustainable development by holdingthe other two branches accountable fortheir decisions and underpinning the cred-ibility of the overall business and politicalenvironment.”1 The political environmentof a country depends on its rule of law.2 Boththe procedural and institutional character-istics of a country’s legal system are centralto the rule of law. The rule of law requires atminimum that the government acts accord-

ing to the law produced by the legislatureand respects the civil rights of its citizens,and citizens can resort to a judicial bodythat treats each case neutrally and fairly.3

While there are no fixed criteria that a legalsystem must possess in order to establishthat the jurisdiction governed by that sys-tem is under the rule of law, it is useful toknow that the following are common indi-cators used to measure rule of law: an inde-pendent and impartial judiciary; laws thatare publicly accessible and apply to citi-zens and government alike; and the absenceof retroactive laws.4

The Costs of Neglecting Judicial ReformNeglecting judicial reforms has related so-cial costs. Justice forms the basis of lastingsocial order. In a just social order, citizensfeel empowered to invoke that rule of lawfor their own benefit. Legal empowermentreduces poverty, builds civil society, en-courages development, and promotes hu-man rights. Access to legal services andcomplementary non-legal services shouldempower citizens to use the law to improvetheir lives.

Neglecting judicial reforms also has aneconomic cost. The overall level of confi-dence in government institutions, includ-ing the judicial system, correlates positivelywith the level of investment and other mea-sures of economic performance. Efficientand transparent legal systems reduce trans-action costs for economic actors and thusencourage investment, especially foreigninvestment.

An inefficient legal system—one that ischaracterized by a huge backlog of cases—undermines the effectiveness of legal re-forms. Inefficiency in the judicial systemleads to an increase in litigation, as peoplewho are aware of the slow pace of justicewithin the court system begin to file casesprimarily to harass the other party. Suchcases crowd out genuine litigants who areforced to seek solutions elsewhere.

Judicial reforms are aimed, in part, atlowering the transaction costs of litigation.In civil cases, parties go to court in order toresolve a dispute, which they have not beenable to resolve privately. In other words, thecost of settling the dispute privately be-tween the parties is very high.5 All thingsbeing equal, cases are litigated only whenthe legal cost is lower than the bargaining

1 WORLD BANK, WORLD DEVELOPMENT REPORT: THE STATE IN A CHANG-ING WORLD (1997) 100.

2 In The Rule of Law Revival, 77 Foreign Af., Mar.–Apr. 1998, at95, Thomas Carothers defines “rule of law” as

…[A] system in which the laws are of public knowl-edge, are clear in meaning, and apply equally to every-one. They enshrine and uphold the political and civil lib-erties that have gained status as universal human rightsover the last half-century. In particular, anyone accusedof a crime has the right to a fair, prompt hearing and ispresumed innocent until proved guilty. The central insti-tutions of the legal system, including courts, prosecutors,and police, are reasonably fair, competent, and efficient.Judges are impartial and independent, not subject to po-litical influence or manipulation. Perhaps most impor-tantly, the government is embedded in a comprehensivelegal framework, its officials accept that the law will beapplied to their own conduct, and the government seeksto be law-abiding.

3 Richard Bilder and Brian Z. Tamanaha, Law and Development,89 AM. J. Int’l. L. 470, 484 (1995).

4 Ronald J. Daniels, Michael Trebilcock and JoshuaRosensweig, The Political Economy of Rule of Law Reform inDeveloping Countries (2004) at www.wdi.bus.umich.edu/global_conf/papers/revised/Trebilcock_Michael.pdf

5 This cost is called the “bargaining cost” while the cost of tak-ing a dispute to court is the “legal cost” of dispute settlement.

20millionThe number ofcases pending inthe lower courts ofIndia.

20 yearsThe length of time acontestedtermination disputecan take in court.

2.7The averagenumber of judgesper 100,000inhabitants in India.

6.38The averagenumber of judgesper 100,000inhabitants in 30selected countries.


cost.6 If the legal cost were higher than thebargaining cost, then the parties would notgo to courts.

In India, resolving disputes through thecourts is generally not the cheaper option.The poorest members of society and firmsunaffiliated with large business groups aremost likely to be adversely affected by inac-cessible, corrupt, or inefficient courts. Thepoor who find themselves defendants incriminal cases often do not have the re-sources to obtain bail. Moreover, when thedefendant is the family breadwinner andcannot pay bail, his or her family loses itssource of income.

The Link Between Justice Reform andEconomic GrowthA number of cross-country econometricstudies provide compelling evidence thatthe establishment of rule of law facilitateseconomic growth. In particular, protectingprivate property rights have been found tofacilitate and enforce long-term contracts,which are essential for raising investmentlevels. The World Bank study, GovernanceMatters,7 found that measures of good insti-tutions have a strong correlation with indi-cators of economic development. Otherstudies using fewer measures of institu-tional quality and focusing exclusively onmeasures of economic development sup-port these results.8 There is also strong evi-dence of a negative correlation betweenresidents’ perceptions of judicial unpred-ictability and growth and investment.9 Somestudies also show that the overall level ofconfidence in the judiciary and other gov-ernment institutions correlates positivelywith the level of investment and measuresof economic performance and the lack oflegislative and institutional reform is a sig-nificant barrier to retaining such invest-ment, which gives rise to economic growth.10

All these support the conclusion that thereis a causal relationship between the rule oflaw and economic development.

Law Reform and PovertyInvariably, the poor are at the receiving endof inefficiencies in court procedures andmanagement. Such inefficiencies provideopportunities for rent seeking by attorneys,judges, and judicial support personnel.11 Inmost developing countries, where land titlesare poorly recorded, the poor find it almost

impossible to establish their claims andstruggle through the judicial processes be-cause of their limited resources.

The poor are particularly worse offwhen dealing with criminal cases. India hasa large jail population of prisoners undertrial (“undertrials”). In Tihar Jail in Delhi,more than 85 percent of the prisoners havebeen reported to be undertrials.12 Manyundertrials are detained because they haveno money to make bail or hire a lawyer toassist them.13 Undertrials are detained in or-der to ensure their appearance in court dur-ing the trial. Thousands of them, arrestedon suspicion of committing petty crimes,languish in jails. Due to court congestion,many remain in jail for a much longer pe-riod than the maximum punishment underthe law for the crime committed.

Court Congestion in IndiaLarge backlogs of cases and delays may af-fect both the fairness and the efficiency ofthe judicial system. In India, the workloadof the courts is huge. There are about 20

6 It follows that resorting to the law is unnecessary and unde-sirable when bargaining succeeds, and resorting to the law isnecessary and desirable when bargaining fails. The specialcircumstances that define the limits of law are specified in aremarkable proposition called the Coase Theorem, formu-lated by economist Ronald Coase. See Ronald H. Coase, TheProblem of Social Cost, 3 J. of Law and Econ. 1–44 (1960).

7 DANIEL KAUFMANN, AART KRAAY AND PABLO ZOIDO-LOBATON, WORLD

BANK, GOVERNANCE MATTERS (1999), available atwww.worldbank.org/wbi/governance/pubs/govmatters.pdf.The aggregate governance indicators for 1996-2002 whichsupersede the previously posted indicators, was made avail-able in May 2005 at www.worldbank.org/wbi/governance/pdf/govmatters%20IV20main.pdf. Other World Bank paperson Governance Indicators include AGGREGATING GOVERNANCE

INDICATORS (1999) at www.worldbank.org/wbi/governance/pubs/aggindicators.html; GROWTH WITHOUT GOVERNANCE (2002)at www.worldbank.org/wbi/governance/pubs/growthgov.htmland Governance Matters III (2003) at www.worldbank.org/wbi/governance/pubs/govmatters3.html

8 Daniels and Trebilcock, supra note 4.9 Aymo Brunetti et al., Credibility of Rules and Economic

Growth: Evidence from a Worldwide Survey of the PrivateSector, 12 (3) World Bank Econ. Rev. 353 (1998).

10 John Hewko, Foreign Direct Investment: Does the Rule of LawMatter? (2002) (unpublished manuscript, on file with the Ruleof Law Series).

11 Rick Messick, Judicial Reform and Economic Development:A Survey of the Issues, 14(1) The World Bank Res. Observer,117, 120 (1999).

12 Government of India, (1997), Report of the Committee on Ra-tionalization of Classification of Prisoners in Tihar Jail, NewDelhi.

13 Table 1: Indicators on Crime for the Year 2000 and 2002.

Heads / Categories 2000 2002

Persons Under IPC Crimes 10,532,307 10,726,760

as Under SLL Crimes 4,724,623 4,893,407

Undertrials Total no. of undertrials 15,256,930 15,620,167

Source: Crime in India (2000), and Crime in India (2002), Na-tional Crime Records Bureau (Ministry of Home Affairs), Gov-ernment of India.

Legal empower-

ment reduces

poverty, builds

civil society,

encourages

development,

and promotes

human rights.

Access to legal

services and

complementary

non-legal

services should

empower

citizens to use

the law to

improve their

lives.

■■■■■


million cases pending in lower courts andanother 3.2 million cases in high courts. Atermination dispute that is contested all theway can take up to 20 years.14 In the Princi-pal Labor Court in Bangalore, 90 percent oftermination disputes are not disposed ofwithin a year. Writ petitions in high courtstake about 8 to 10 years and in some courtsnearly 20 years. The dockets of civil casesare overcrowded and it may take years toget a trial on the merits.15

Protracted case processing times andoverburdened administrative staff may leadto resource-privileged individuals dominat-ing the court’s time to the detriment of thosewho have fewer resources with which toexert influence. Those with limited accessto justice may resort to extralegal or illegalmeans of resolving conflict such as coercionor physical violence.

A lack of judges has generally beencited as the main reason for court conges-tion and delays.16 Indeed, the number ofjudges in India per capita has been low com-pared to other countries. For instance, dataon 30 selected countries from the WorldBank Justice Sector at a Glance database17

indicate that in 2000, the average numberof judges per 100,000 inhabitants was 6.38.18

The corresponding number for India isabout 2.7 judges.

Court productivity, as measured bydocket clearance rates, has a significant andnegative effect on both caseloads and con-gestion rates and seems to be crucial for the

effectiveness of congestion-reduction pro-grams. Judiciaries with lower litigation ratesdisplay a relatively better performance withrespect to current caseloads, but are not ef-ficient in addressing the “real” backlogs ofcases pending for more than a year.

However, a study by Micevska andHazra19 reveals that simple supply side so-lutions such as increasing the number ofjudges might not entirely solve the prob-lem. Improving efficiency of the judiciary isalso important in decreasing court conges-tion. A major function of the judiciary andthe courts is to assist in the efficient andtimely resolution of disputes.20 Once a courthas been established, its efficiency is de-fined in terms of the speed, cost, and fair-ness with which judicial decisions are madeand the access that aggrieved citizens haveto the court.

Police and Prison Reforms in IndiaIf there is to be any attempt for a meaning-ful revamp of the criminal justice system,the issue of police and prison reformsshould be part of judicial reform.21 The Na-tional Police Commission has pointed outthat 60 percent of all arrests in India are ei-ther unnecessary or unjustified. This hasresulted in overcrowding of jails and ac-counts for more than 40 percent of the ex-penditure of jails. Police restraint is of ut-most importance, especially since a major-ity of the people arrested are poor and lan-guish in jail simply because of their inability

“Inefficiency in the judicialsystem leads to an increase inlitigation, as people who areaware of the slow pace ofjustice within the court systembegin to file cases primarily toharass the other party.”

Arnab Kumar HazraFellow, Rajiv GandhiInstitute for ContemporaryStudies, Rajiv GandhiFoundationMr. Arnab Kumar Hazra is a Fellow with the Rajiv

Gandhi Institute for Contemporary Studies, RajivGandhi Foundation, New Delhi, India. He has served as Economic Adviser to theEmbassy of the Republic of Korea and Consultant to the National Council ofApplied Economic Research. He has seven years of research experience ineconomic development policy, having worked on issues relating to legal re-forms, dispute resolution, judiciary, and labor laws, among others. He has anM.Phil. in Economics and an M.A. in Economics from the Jawaharlal NehruUniversity in New Delhi.

Larry Ram

os

14 V. Nagaraj, Labor Laws, in M. MENON, N.R. AND B. DEBROY (EDS.)LEGAL DIMENSIONS OF ECONOMIC REFORMS (1991) 31–80.

15 For a detailed analysis on the problem of court congestion,see Arnab Kumar Hazra and Maja B. Micevska, The Problemof Court Congestion: Evidence From Indian Lower Courts(2004), available at www.swan.ac.uk/economics/res2004/program/papers/HazraMicevska.pdf.

16 The number of judges per 100,000 inhabitants ranged from0.13 in Canada to 23.21 in the Slovak Republic, not showingsignificant correlation with GDP per capita. It should be noted,however, that for some of the countries the statistics coveredonly the federal court system (excluding the state or provin-cial court systems).

17 Available at: www4.worldbank.org/legal/database/Justice18 The actual number of judges is even lower since the calcula-

tion is based on the sanctioned judge strength, not account-ing for vacancies.

19 Arnab Kumar Hazra and Maja B. Micevska, The Problem ofCourt Congestion: Evidence From Indian Lower Courts (2004),available at www.swan.ac.uk/economics/res2004/program/papers/HazraMicevska.pdf.

20 Maria Dakolias, Court Performance Around the World: A Com-parative Perspective (1999) available at: www-wds.worldbank.org/servlet/WDS_IBank_Servlet?pcont=details&eid=000094946_99090805303789.

21 Arnab Kumar Hazra, (2004), Institutional Reforms in the En-forcement of Criminal Justice in India, in BIBEK DEBROY (EDS.),AGENDA FOR IMPROVING GOVERNANCE (2004).


to procure bail. Many of the persons who arein prison are not dangerous or violent. How-ever, if these people stay in prison for longperiods of time, they may be subjected tosubstantial psychological harm and becomemore prone to commit crimes. This is a seri-ous problem, considering the large numberof undertrials lodged in various Indian jails.

ConclusionDeveloping countries need judicial reforms.Neglecting judicial reforms leads to lack ofproperty rights enforcement and abuse ofgovernment powers. These may ultimatelyforce people to operate outside the legalsystem, and impair the rule of law. This couldaffect a nation’s credibility to do businessand result in lower investments andeconomic growth. In the long run, this couldimpair the reduction of poverty and creat-ing long lasting social order.

India’s experience has shown that thepoor are usually the ones who suffer mostunder a non-functioning criminal justicesystem. An inefficient judiciary encouragesrent-seeking activities and makes access tojustice by the poor particularly difficult.Thus, while efficiency-enhancing efforts aresmall steps in the right direction, more sub-stantive judicial reforms—including policeand prison reforms—should lie at the coreof any effort by policymakers.

COMMENT:The Role of JudicialReform in GoodGovernance and theFight AgainstCorruptionSIMEON V. MARCELOOmbudsman of the Republic of the Philippines

It cannot be doubted, as Mr. ArnabKumar Hazra has suggested, that “be-sides promoting law and order, a bal-anced, swift, affordable and acces-sible, and fair justice delivery system

(a) aids in market development; (b) gener-ates investment, including foreign direct in-vestment; and (c) stimulates economicgrowth and therefore helps in alleviatingpoverty.” Unfortunately, however, while thedelivery of justice should be a singular con-cern of the government, the truth is, the gov-ernment itself is composed of differentbranches that do not necessarily take a uni-fied approach to delivery of justice. Differ-ent offices within the government may evencompete, if not for public approval, then forthe limited resources available to the gov-ernment as a whole.

In the Philippines, governance, accessto justice, and the provision of basic ser-vices are the concern of the legislature, theexecutive, the judiciary, and the constitu-tional bodies, both cooperatively and inde-pendently. Overlapping of functions andduties is common in the Philippine bureau-cracy. Thus, while cooperation may havebeen the intention behind such overlap ofjurisdiction, the exact opposite may occuras different agencies lobby for differentagenda in what is perceived to be a contestof competing interests.

We agree with Mr. Hazra that there aredebates on “whether law reform should fa-cilitate market transactions or the empha-sis should be on promoting good gover-nance and alleviating poverty.” While thereis broad consensus that judicial efficiencyand reforms support economic growth, as

The Philippines

recognizes and

agrees with the

reform concerns

and initiatives

outlined by Mr.

Hazra. Indeed,

our courts,

especially the

Sandiganbayan,

suffer many of

the same

problems as the

courts in India.

■■■■■

Cou

rtes

y of

the

hPhi

lippi

ne S

upre

me

Cou

rt

The Philippine Supreme Court in session.


Mr. Hazra correctly pointed out, there aredebates on perceived competing interestswith respect to the ways in which legal andjudicial reform should be pursued.

There is a similar debate in the Philip-pines surrounding the problem of povertyand corruption. Corruption is one of themost pressing problems of the Philippinestoday. It is considered as one of the mostdifficult stumbling blocks to economic dev-elopment and the eradication of poverty. Infact, The World Development Report for20041 published by the World Bank reportedthat corruption is the top investment con-straint in the Philippines.2 This is furthersupported by the 2004 Corporate Perfor-mance Survey conducted by the WallaceBusiness Forum, which reported that cor-ruption is the most serious disadvantage toinvesting in the Philippines.3

For good reason, however, budget offi-cials and bureaucratic fund managers in-variably channel available resources to pov-erty alleviation projects, instead of allocat-ing more resources for anti-corruption pro-grams. We all understand that our govern-ment is caught in a dilemma, consideringthe Philippines’ very limited resources, dif-ficult fiscal position, and the gravity of theproblems the government has to address.

Anti-Corruption:A Unifying Reform for the PoorThe Office of the Ombudsman in the Philip-pines, however, advances the view that, inreality, choosing to fight either poverty orcorruption is not a dilemma at all. Recentstudies have shown that corruption has adirect and positive correlation with poverty.A working paper of the International Mon-etary Fund, entitled “Does Corruption AffectIncome Inequality and Poverty?”,4 con-

cluded that there is statistical evidence to“establish the existence of a statistically sig-nificant positive association between corrup-tion and poverty.”5 Thus, it is our positionthat by investing substantial funds in theanti-corruption campaign, the governmentis, in effect, effectively helping in alleviat-ing poverty.

For example, corruption in infrastruc-ture projects can result in substandard roadsleading from farms to markets—makingthem perhaps impassable sooner than ex-pected and causing an altogether negativeimpact on the livelihood and productivityof the people. Further, if corruption is sub-stantially eradicated at the revenue-gener-ating agencies, tax collection could in-crease drastically, thereby providing addi-tional badly needed funds for anti-povertyprograms.

In its 2004 Common Country Assess-ment, the United Nations DevelopmentProgramme reported that about P100 Bil-lion, or 13 percent of the P781 Billion Phil-ippine national budget, was at risk of beinglost to corruption.6 However, it was esti-mated that the greatest loss (in terms ofuncollected revenue) happens at the rev-enue generation agencies: the Bureau ofInternal Revenue and the Bureau of Cus-toms.

Senator Joker Arroyo explains that only12 percent of the entire budget is used forcapital expenditures and, is, therefore, sus-ceptible to graft and corruption. Accordingto this theory, only about 3.6 percent of thebudget is vulnerable to graft. He concludedthat the greatest loss due to corruption canbe attributed to uncollected revenues. Heposits that, assuming that what is due thegovernment in revenues is P700 billion, thefailure to collect just 15 percent of thatamount already translates into a P105 bil-lion “loss” to government in uncollectedrevenues.7

Senator Arroyo’s conclusion was con-firmed by a study on smuggling by the Phil-ippine Center for Investigative Journalism.According to that study, “the total revenueloss for the government could reach asmuch as P200 billion.”8

Thus, if an adequately funded anti-cor-ruption initiative is able to substantiallyreduce such budgetary leaks and help in-crease revenue collection, the immediateeffect will be the accrual of “savings” and

1 WORLD BANK, WORLD DEVELOPMENT REPORT 2004: MAKING

SERVICES WORK FOR POOR PEOPLE (2004), available athttp://wdsbeta.worldbank.org/external/default/WDSContentServer/IW3P/IB/2003/10/07/000090341_20031007150121/Rendered/PDF/268950PAPER0WDR02004.pdf

2 BUSINESS WORLD, Sept. 29, 2004.3 Id., at 21.4 Sanjeev Gupta et al., “Does Corruption Affect Income Inequal-

ity and Poverty,” (May 1998), available at http://www.imf.org/external/pubs/ft/wp/wp9876.pdf

5 Id. at 21.6 See Cai Ordinario, P100B Lost to Corruption, THE MANILA

TIMES, July 31, 2004, at 1.7 See Belinda Olivares-Cunanan, Mercy Missions Can Be Done

Here, PHILIPPINE DAILY INQUIRER, Aug. 9, 2004, at A15.8 See Tess Bacalla, Smuggled Goods, Flood Walls, Markets,

THE PHILIPPINE STAR, Oct. 25, 2004, at 10.

It is our position

that by investing

substantial

funds in the

anti-corruption

campaign, the

government is,

in effect,

effectively help-

ing in alleviating

poverty.

■■■■■


income for the government, which can, inturn, be used for poverty-alleviationprojects. Moreover, reduced graft and cor-ruption increases investor confidence,which translates to more investments andemployment for the people.

Therefore, the Office of the Ombudsmanposits the view that a massively funded anti-corruption campaign should be seen as aninvestment with extraordinary high returnsand not as an expense, where the primarybeneficiaries are the poor and the margin-alized sectors of society, and where the di-rect and immediate effect is the alleviationof poverty in our country.

Judicial Reform and the SandiganbayanIt should be emphasized that in order for aneffective campaign against corruption to beimplemented, reforms at the courts han-dling corruption cases are indispensable.

The Philippines recognizes and agreeswith the reform concerns and initiativesoutlined by Mr. Hazra. Indeed, our courts,especially the Sandiganbayan, suffer manyof the same problems as the courts in India.The Philippine Supreme Court, under thewatch of Chief Justice Hilario G. Davide, Jr.,advocates governance reforms. Accordingto the Chief Justice:

Any effort...to promote development in a countryis deeply rooted in governance. This is like...a

fruit-bearing tree with governance as the rootsand development as the fruit. To harvest bounti-ful fruits of good quality, the tree must be caredfor from the roots, giving it ample water, fertilizer,etc. Otherwise, no plentiful harvest, much more[sic] high quality harvest, can be expected. Re-member the old wise saying, “one reaps whatone sows.“ Poor governance means underdevel-opment or no development at all. Good gover-nance means flourishing development, progress,prosperity, stability and peace.9

Despite apparent competing interestsin other areas, our national leaders and thestakeholders have come together in a uni-fied front for good governance. In Decem-ber 2004, the heads of offices of various gov-ernment agencies and branches launchedthe Good Governance Festival. There wereten thematic areas of governance reformschosen to highlight the critical domainsthat need to be addressed by the govern-ment in cooperation with the private sec-tor and civil society:

1. electoral and political reforms;2. justice reforms;3. anti-corruption;4. local governance reforms;5. human rights and gender;6. media reforms;7. public administration reforms;8. environmental governance;9. anti-poverty; and10. peace and development.10

For its part, the judiciary, under the di-rection of Chief Justice Davide, adopted theAction Program for Judicial Reform(APJR)11—a comprehensive reform packagefor the judiciary. Its components seek tofulfill our vision of a judiciary that is inde-pendent, effective, efficient, and worthy ofthe people’s trust and confidence. It alsoseeks to ensure that the legal profession pro-

“If we intend to make significantprogress in our fight against graftand corruption despite our manylimitations, the speedy dispositionof high-profile cases involvinghigher government officials andbigger amounts of money shouldbe made a priority in the trialschedule of our courts.”

Simeon V. MarceloOmbudsman of thePhilippines

Ombudsman Simeon V. Marcelo was appointed as Solicitor General of the Re-public of the Philippines in February 2001. As Solicitor General, he successfullyhandled the recovery of former Philippine President Marcos’ ill-gotten wealthworth US$680 Million lodged in Swiss bank accounts. In October 2002, he wasappointed as the Ombudsman, the youngest person ever appointed to the posi-tion. As Ombudsman, he heads the panel of government lawyers prosecutingmajor graft cases before the Sandiganbayan, the Philippines’ Anti-Graft Court.His office is now focusing on investigating alleged widespread corruption activi-ties in the Philippine military and revenue-generating government agencies.

Larry Ram

os

9 According to Chief Justice Davide, “Good governance con-sists, at the minimum, of institutions that are democratic andaccountable and that protect the Rule of Law at all times; andrules that are transparent, participatory, responsive and ef-fective, and which are geared towards the full developmentof the human person and the building of a just and humanesociety.” Chief Justice Hilario G. Davide, Jr., Keynote Addressdelivered on the Human Rights Week Commemoration, 10 to10 Dekada ng Reporma Milestone Event (Dec. 8, 2004).

10 Id.11 A summary of the APJR is provided by the Philippine Supreme

Court Program Management Office Director, Evelyn T. Dum-dum, on page 62.


vides quality, ethical, accessible, and cost-effective legal service to the people and iswilling and able to answer the call to publicservice.

One of the components of the APJR isaccess to justice by the poor. A specific goalof this component is to reform each of thefive pillars of the criminal justice system todevelop a system that is responsive andaccessible to the poor and disadvantaged.Various activities were conducted to under-score the urgent need to join forces in en-suring access to justice, culminating in theNational Forum on Access to Justicethrough the Five Pillars of the Criminal Jus-tice System, held late last year.

While good governance, access to jus-tice, and rule of law, must be addressed bymulti-institutional cooperation, in order tofully understand the parallels between ourexperience and that of India, it is necessaryto highlight the role of one institution inthe Philippine judiciary—the Sandi-ganbayan. The Sandiganbayan is the Anti-Graft Court of the Philippines establishedto hear, try, and decide cases against high-ranking public officials, i.e., those belong-ing to Salary Grade “27” and above. TheSandiganbayan has 15 justices in five divi-sions of three justices each. For 2004, it hadan operational budget (personnel services,maintenance and other operating ex-penses) of almost P115 million.

Studies recently conducted by the Of-fice of the Ombudsman involving Sandigan-bayan cases resolved in 2003 revealed thatit took an average of six years and tenmonths for one case to be fully resolved. Infact, there are some cases involving high-ranking government officials that have beenpending in the Sandiganbayan for more thanten years now.

In mid-2004, due to the heavy volume ofcases being heard by the divisions of theSandiganbayan, in many instances only twohearings for every case were conducted ev-ery two months. Another study conductedby the Office of the Ombudsman, on thethirty high-profile cases presently pendingwith the Sandiganbayan, revealed that to-wards the end of last year, there was analarming interval of an average of four

months between scheduled hearings in ev-ery case.

The high-profile “Tax Credit Scam” illus-trates the above-mentioned situation. Inthat case, the accused was supposed to bearraigned on 30 September 2004. The sched-uled arraignment was postponed and re-scheduled to 01 March 2005, an interval ofalmost five months. Other high-profile caseswere not scheduled for follow-up hearingsuntil four and five months later after theinitial hearings.

The Sandiganbayan justices cannot beblamed for this problem. In fact, they shouldbe commended for their diligence and per-severance. They are doing their best to com-plete the proceedings and resolve theircases at the earliest possible time, but thesheer volume of cases makes it impossibleto promptly dispose of every case.

At the beginning of 2004, the Sandigan-bayan had 2,304 cases pending.12 As of 31October 2004, the Sandiganbayan had a to-tal of 1,792 active cases (with three casesyet to be raffled), divided as follows:

ACTIVE CASES IN THE SANDIGANBAYAN

1st Division .................................................. 1852nd Division .................................................. 4703rd Division .................................................. 3564th Division .................................................. 3875th Division .................................................. 388Special Division ............................................. 3TOTAL ................................................ 1,792

However, the total number of cases (ac-tual caseload) pending in the Sandigan-bayan within a given year, which includesboth active and non-active cases, is farlarger than the above-stated numbers. Astudy jointly sponsored by the SupremeCourt and the World Bank entitled “Philip-pines: Formulation of Case Decongestionand Delay Reduction Strategy Project-Phase I (Final Report December 2003)”13

stated:

The average workload of 441 cases per justice isheavy. Since Sandiganbayan justices work in divi-sions, each division effectively handles more than1,000 cases per year. A reasonable amount ofworkload per justice should be established . . . .

The delay in the disposition of cases inthe Sandiganbayan is a natural conse-

12 Sandiganbayan Statistics on Cases Filed, Pending and Dis-posed of as of Nov. 30, 2004.

13 Available at www.apjr-sc-phil.org/article/articleview/8/1/2

Remember the

old wise saying,

“one reaps what

one sows.“ Poor

governance

means under-

development or

no development

at all. Good

governance

means flourish-

ing develop-

ment, progress,

prosperity,

stability and

peace.

—CHIEF JUSTICE

HILARIO G.

DAVIDE, JR.

■■■■■


quence of a heavily congested docket—aproblem that plagues all Philippine courtstoday. However, due to the unique and usu-ally complex character of graft and corrup-tion cases, and the extremely heavycaseload distributed among a small num-ber of courts (five divisions), the problemof delay is extremely grave at the Sandigan-bayan.

It must be emphasized that the Sandi-ganbayan plays a critical role in fighting graftand corruption committed by high-rankingpublic officials. A survey on caseload fundedby the World Bank showed that the mediantime for the processing of cases (from filingto closure) is 6.6 years; the minimum dura-tion was 1.6 years and maximum 11 years.The trial phase of each case took the long-est time, with a median trial duration of 2.4years. The second longest phase was that ofthe decision making itself, with a median du-ration of eight months.14

We have showcased the Sandiganbayanprimarily due to its importance to the cam-paign against graft and corruption and thegreat positive impact the swift administra-tion of justice has on deterring corruption.Corrupt public officials can be expected torespond only to reasonably certain swift orimmediate punishment, whether it is ad-ministrative or criminal. The heavily clog-ged dockets and the limited number of jus-tices and judges cause the trial of allegedlycorrupt public officials to drag on for years.During this time, the trials and cases fall outof the sphere of public interest, concern,and knowledge and end as old news rel-

egated to history, whichseems irrelevant and in-consequential to the ev-eryday lives of our people.The corruption courts nolonger have a deterrent ef-fect when cases take yearsto resolve. The search fora solution to this criticalproblem of congesteddockets requires recourseto drastic but creative andeconomical measures.

Alternative ReformMeasuresThe ideal and most logicalsolution to this predica-ment is to at least qua-

druple the number of justices and/or divi-sions in the Sandiganbayan. However, sucha solution will require an additional bud-get of at least P400 million, which likely ex-ceeds the resources available to the na-tional government at this time.

RATIONALIZATION OF JURISDICTIONBased on another study conducted last yearby the Office of the Ombudsman, of themore than 2,000 cases pending before theSandiganbayan, around 793 cases involvemunicipal mayors and other officials withsalary grades of 27 or 28 and the allegedamount of injury or bribes received was P1million or less.15 These cases comprise ap-proximately 40 percent of all pending casesin the Sandiganbayan. If the more importantcases with larger amounts at stake could beprioritized, the over-burdened calendar ofthe Sandiganbayan could be lightened, al-lowing the justices more time to focus oncases that will produce a greater impact inthe war against graft and corruption. Thiscan be done by transferring the lower prior-ity cases to the regular courts, allowing theSandiganbayan to concentrate on the verycases it was originally intended to try—those involving the senior officials of thecountry and those involving large amountsof money.

The Office of the Ombudsman had sentto the Senate, through Senator Mar RoxasIII, its proposed legislation to modify thejurisdiction of the Sandiganbayan to allowmore expeditious resolution of cases involv-ing high-ranking officials and those involv-ing large amounts of money. It is proposedthat cases involving local and national offi-cials with salary grade 27 and 28 should betransferred to regional trial courts if one ofthe following two conditions is met: (a) thecase does not involve damages or bribes orsuch damages remain unquantified or areunquantifiable; or (b) said damages orbribes are no more than P1 million.16 As ear-

The delay in the

disposition of

cases in the

Sandiganbayan

is a natural

consequence of

a heavily

congested

docket—a

problem that

plagues all

Philippine courts

today.

■■■■■

Courtesy of thePhilippine Supreme Court

14 OMB Medium-Term Anti-Corruption Plan and Public Invest-ment Program, at 2-30.

15 Among the cases involving municipal mayors, 254 involvean amount of P 25,000 or less; 50 involve an amount P 50,000or less; and 68 involve P 100,000 or less.

16 There are 952 Regional Trial Court branches throughout thePhilippines, 761 of which were filled as of 30 November 2004.The transfer of these 793 cases from the Sandiganbayan maynot be too burdensome considering the fact that, with a fewexceptions, only 1 case need be assigned to each of theseRegional Trial Courts.

Thousands of case files awaiting dispositionby the courts.


lier stated, there are about 793 cases thatfall under these classifications. It was fur-ther proposed that the remaining cases,which involve damages or bribes that areless than P5 Million, should be tried andresolved by individual justices, leaving themore complicated ones for the division ofthree justices.17

A better response to this problem is todrastically increase the number of justicesin the Sandiganbayan. Adding five more di-visions to the Sandiganbayan, together withthe above-discussed modification of theSandiganbayan’s jurisdiction, will substan-tially remedy the problem of delay. This, ofcourse, will require an additional operatingbudget of about P115 million and the enact-ment of further legislation. The additionalfunding of P115 million should not, however,seem that much in terms of the enhancedcapacity that this funding will create for theSandiganbayan to deter further acts of graftand corruption, which could potentiallysave our country billions of pesos.

PRIORITIZATION OF CASESIt should be emphasized that increasing thenumber of justices and divisions in theSandiganbayan and modifying its jurisdic-tion will take some time proceeding throughthe legislature before the same can be imple-mented. While the legislature is deliberat-ing on these measures, the Supreme Courtcould adopt a radical temporary solutionto address the problem of case delay in theSandiganbayan. The Supreme Court couldorder a suspension of the proceedings inall cases in the Sandiganbayan, except forthe forty most important high-profile cases,as determined by the Supreme Court, on therecommendation of the Sandiganbayan andthe Office of the Special Prosecutor. Further,those cases should then be tried immedi-ately and continuously on a weekly basis.

At present, each division of the Sandi-ganbayan conducts hearings for three-and-a-half hours every day, Mondays throughThursdays. Friday is designated as “motionday.” Under this proposal, each division of

the Sandiganbayan will ideally have onlyeight cases on its docket at a given time.Therefore, from Monday to Thursday, theSandiganbayan will be able to hear twocases daily, so that each case will be heardevery week. The respective divisions will beable to maintain a continuous trial for eachcase devoting one hearing day per week,from Monday to Thursday, with each trialday lasting for at least an hour and a halfper case.

This practical proposal optimally uti-lizes the court’s meager resources. We rec-ognize that the extremely slow pace in thedisposition of cases undermines the integ-rity of our justice system, particularly ingraft and corruption cases. However, con-sidering the administrative and human limi-tations of our courts, it is highly impracti-cal to require continuous trial on all casespending in the Sandiganbayan. Thus, if weintend to make significant progress in ourfight against graft and corruption despiteour many limitations, the speedy disposi-tion of high-profile cases involving highergovernment officials and bigger amounts ofmoney should be made a priority in the trialschedule of our courts. Hopefully, thespeedy disposition of these cases involvinghigher-ranking officials will restore thepeople’s faith in our courts and likewise dis-courage lower-ranking officials from com-mitting acts of corruption.

While we concede that justice does notdiscriminate between big and small cases,the exigency of the times, coupled with thesevere lack of human resources in theSandiganbayan, should compel the courtsto employ a more radical and strategic ap-proach to fight graft and corruption by pri-oritizing the disposition of the forty mostimportant high-profile cases. It is better tofind a way to address the problem, even ifonly a part of it, rather than simply distrib-ute the misfortune of delay equally.

As previously stated, our study of thirtyhigh-profile cases presently pending at theSandiganbayan showed that towards theend of last year, there was an alarming aver-age interval of over four months betweenscheduled hearings. A continuous trial ofthe 40 most important high profile cases is,therefore, a practical and reasonable interimproposal.18

There are other advantages to proceed-ing with continuous trials for the forty most

17 Of the 14 incumbent justices, 10 were former regional trialcourt judges who already have vast experience in trying andresolving cases involving amounts higher than P5 Million.The other 4 justices were veteran lawyers before their ap-pointment.

18 Cases involving detention prisoners should be included inthe list of the 40 most important high-profile cases.

6.6 yearsThe median time forthe processing ofcases (from filing toclosure) in theSandiganbayan(Philippines).

2.4 yearsThe median trialduration time in theSandiganbayan.

441The number ofcases handled byeach justice.

2,304The number ofcases pending as of31 October 2004.

1.792The number ofactive cases as of31 October 2004.


important high-profile cases. The previ-ously-mentioned World Bank study entitled“Philippines: Formulation of Case Deconges-tion and Delay Reduction Strategy Project-Phase I (Final Report December 2003)” statedthat continuous trials “would requiregreater preparation by prosecutors and de-fense counsel at the outset . . . but wouldreduce the amount of time taken for the trial,and also reduce the possibility of fadingmemories on the part of witnesses, and theopportunity for interference with evidence.”

Prosecutors observed that the delay inthe disposition of cases compounds otherproblems, such as the difficulty in preserv-ing the evidence of the prosecution. Wit-ness’ memories also become less accurateover time. It also becomes more difficult tolocate witnesses if the case drags on for avery long time, perhaps because of loss ofinterest on the part of the witnesses. Giventhese circumstances, it is extremely difficultfor the prosecution to secure convictionseven in meritorious cases if there is exces-sive delay in the proceedings. Institutingcontinuous trials should alleviate, if notcompletely remedy, these problems.

Moreover, the proposal vindicatesdefendant’s constitutional right to speedytrial by guaranteeing continuous trials forthose facing the gravest charges.

ConclusionIn sum, the cooperative and synchronizedefforts among all offices of the governmentand stakeholders in crafting and realizingthe reforms needed for good governance isindispensable. While preliminary reform ef-forts have been undertaken, much remainsto be desired and done in terms of successin this endeavor. To quote Chief JusticeDavide:

This candid admission is the first necessary stepfor our country to be on its way to vigorouslyadvance in governance and to realize its dev-elopment goals. There is nothing embarrassingor even shameful in this admission or confession.A confession purifies the spirit, expresses thenobility of the heart, and demonstrates courage.In connection with good governance, it is a markof patriotism and a commitment to serve otherswith selfless love.19

Toward a Gender-Just Rule of LawJASODHARA BAGCHIChairperson,West Bengal Commission for Women

There is much inequality in theworld. Discrimination againstmembers of several social cat-egories has upheld the hierar-chical world order and supports

entrenched unequal treatment. These cat-egories include class, caste, ethnicity, race,and religion, but the overarching, oldest cat-egory is gender. Internationally, nationally,and locally, gender cuts across all the othersocial categories upon which discrimina-tion is based.

This symposium focuses on two ele-ments of government that has been tradi-tionally associated with the male gender—the police and the judiciary. It is significantthat the year we choose to deliberate theseissues also marks 10th anniversary of theWorld Conference on Women held inBeijing. In India this is also the year duringwhich both the government and non-gov-ernment organizations (NGOs) are prepar-ing the second report for the CEDAW Com-mittee in the United Nations. CEDAWstands for the International Convention onthe Elimination of All Forms of Discrimina-tion Against Women, which was adopted bythe UN General Assembly in 1979. This Con-vention defines women’s rights as humanrights.

History of Women’s Rights and Law ReformThe history of women’s rights can be tracedthrough women’s status, privileges, and pro-tections under the law over time. Women’srights have not always been considered partof human rights generally. The FrenchRevolution’s Declaration of the Rights ofMan and Citizens, one of the seminal earlyrule of law documents, did not concede thatwomen were citizens. The Frenchmen hadfew qualms about guillotining their femalecomrades-in-arms for advocating women’srights. Olympe de Gouges was killed for sup-porting the Declaration of the Rights ofWomen, which was considered transgres-19 Davide, supra.

As we develop

and implement

reform prog-

rams for the

police and the

judiciary, we

must keep

women’s issues

with respect to

these aspects of

law enforce-

ment in mind.

Police and

judicial reforms

must support

justice for

women in order

to support just-

ice for society as

a whole.

■■■■■


sive as women were thought to be unfit tobe brought within the folds of citizenry.

The complete history of women’sstruggles for recognition as citizens remainsunmapped, and women’s role in law and gov-ernance has escaped the attention it de-serves. Whatever the scholarly explanationsfor this may be, feminist common sense sim-ply observes that gender divisions withinsocial spheres has deprived women of equalaccess to the justice system. Laws and legalinstitutions often reflect larger societal dis-crimination against women. In many coun-tries, the legal machinery and the law en-forcement agencies are meant to belong tothe “public” sphere, while women are iden-tified as belonging to the “private” sphere.The Indian colonial legacy has even furthercomplicated the public-private distinction,rendering it even more intensively gendered.For example, within the public legal sphere,there are “personal laws.” Personal laws gov-ern the specifics of communities, includingwomen’s lives and legal issues.

In India many of the large gains of thewomen’s movement have been achievedthrough legal reforms. In 1829, the colonialgovernment passed the anti-suttee daho leg-islation, which outlawed the killing of wid-ows on their husband’s pyres and in whichRam Mohan Rai, the great Indian social re-former, played a significant role. In 1856,Iswar Chandra Vidyasagar, the Bengali writerand social reformer, lobbied for colonial leg-islation that would allow widows to remarryand the Widow Remarriage Act XV waspassed. Law reform has, therefore, been animportant tool in furthering the women’smovement, strengthening women’s rights,and improving women’s quality of life in In-dia for nearly 200 years.

The Need for Gender-Just Rule of LawJust as law reform has played an importantrole in furthering women’s rights in the past,it will continue to do so in the future. As wedevelop and implement reform programs forthe police and the judiciary, we must keepwomen’s issues with respect to these as-pects of law enforcement in mind. Policeand judicial reforms must support justicefor women in order to support justice forsociety as a whole. My experience in Indiahas impressed upon me the fact that gen-der issues must be navigated very delicatelyin the context of law and governance. This

does not detract, however, from the impor-tance of considering the perspectives ofwomen and men in legal reforms.

I serve on the Women’s Commission inWest Bengal, which was established by astatutory act in 1992, at approximately thesame time as the National Commission forWomen was established in Delhi. We are,however, independent from the Delhi Com-mission and operate within the purview ofour state. Our work to this point has beenaddressing the ways in which law enforce-ment and the police are not servingwomen’s needs. Primarily, we have dealtwith the police.

Despite concerted attempts at makingthe police more gender-sensitive, the policein our society still suffer from the hangoverof colonial authoritarianism. From time totime, the police in India have not only failedto protect women from harm, but have in-flicted harm on women themselves, eitherby rape or other abuse. Historically, high-profile police rape cases led to reforms incriminal laws governing the offense. Thelaws were amended, for example, to includecustodial rape as one of the worst offenses.There were two cases that prompted thesereforms, the Rameeza Bee and Mathuracases. In the Rameeza Bee case in 1978, awoman was raped by several policemen, andher husband was murdered because he hadprotested. In response to massive protests,the President of the Republic of India setup a commission of enquiry. This commis-

“In India many of the large gainsof the women’s movement havebeen achieved through legalreforms. In 1829, the colonialgovernment passed the anti-suttee daho legislation, whichoutlawed the killing of widowson their husband’s pyres.”

Jasodhara BagchiChairperson,West Bengal Commissionfor Women

Dr. Jasodhara Bagchi is the Chairperson of the West Bengal Commission forWomen. She is a former professor and head of the Department of English of theSchool of Women's Studies, Jadavpur University, Kolkata, which she founded.She presently serves as an adviser to the same institution. Ms. Bagchi is also thehonorary Chairperson of the National Resource Group, Mahila Samakhya, aninnovative programme on gender and education sanctioned by the Governmentof India. Ms. Bagchi has a Ph.D. from Cambridge University and an M.A. fromOxford University.

Larry Ram

os


sion found that the policemen were guilty.They were nonetheless acquitted in court.In the Mathura case, two years later in1980,an under-aged dalit1 girl was raped by twopolicemen within the vicinity of the policestation. The lower court held that since shehad eloped and was married at the time ofthe incident, she must have been habitu-ated to sex and could not have been raped.The high court rejected the lower court’sholding and convicted the policemen. Ulti-mately, the Supreme Court reversed, statingthat since Mathura had not raised any alarmand since there were no visible marks of in-jury on her body, the act must have hap-pened with her consent. The rape laws thatwere passed or amended in the wake ofthese cases and the public outrage they in-duced did much to protect women fromsuch brutal acts.

Our Commission has, however, foundthat women who are compelled to go to thepolice stations are still perceived by police-men there to be “available,” and that womenin police custody are frequently seen as theproperty of law enforcement authorities.These attitudes are part of a greater socialtrend of the exploitation of women, exem-plified, for example, by the sex trade docu-mented in the recent book, Guilty WithoutTrial: Women in the Sex Trade in Calcutta,2

which explored the harassment, economicinsecurity, health hazards, and stigmatiza-tion that sex workers face in India.

Our Commission has also been con-cerned with declining ratio of women tomen in India. As documented by ProfessorAmartya Sen, there are millions of “missingwomen” in India.3 According to the 2001 cen-sus, the ratio of surviving female childrento male children among children aged 0–6years has declined at an alarming rate. Pros-perous states, including Punjab, Haryana,parts of Himachal Pradesh, and the prosper-ous districts of Calcutta, have evidencedthe declining ratio, supporting the theorythat the trend can be attributed, not to in-fant mortality, but to sex-selective abortionsconducted using ultra-sonogram and othermedical equipment. Therefore, we success-fully lobbied for legislation forbidding thispractice, and the Pre-Natal Diagnostic Tech-nique Act (PNDT Act) was passed in 1994.The PNDT Act provides for the regulationof the use of pre-natal diagnostic techniquesand forbids use of such techniques for the

purpose of pre-natal sex determination lead-ing to abortion of female fetuses. We are nowin need of public interest litigation to pro-mote women’s rights under the PNDT Act.We must promote judicial activism in en-forcing the new law in order for it to fulfillits preventative goals.

Women’s rights are also prejudiced byworkings of the judicial system itself. Oneof India’s great judges, Justice Krishna Iyer,who also made important recommenda-tions on prison reform, noted that the sys-temic case delays in the Indian courts tendto affect women more adversely than men.His recommendation in this regard was toestablish specialized courts to dispensejustice separately and speedily to women.Such a mechanism was already available towomen, under the Family Court Act of 1984.However, Justice Iyer’s recommendationsaddressed additional provisions to regulatethe presence of lawyers and witnesses inthe family court and would expand thecourt’s jurisdiction to include all cases per-taining to women, whether as plaintiffs, re-spondents, or victims. It is my hope thatthe family courts will be able to providewomen with quick resolution of their legalmatters, and that the rest of the judicial sys-tem will follow the pattern of speedy deliv-ery of justice. I do not favor widespread useof alternative dispute resolution (ADR), be-cause I believe one of the most importantfactors in providing justice for women isspeedy resolution of cases and because Iam skeptical of the ability of ADR to resolvecases quickly.

ConclusionMany of the positive developments in thewomen’s movement in India have been, andcontinue to be, closely related to law andlegal institution reform. Further legislationto protect women’s rights and security iscurrently in development. For example, theVishaka4 guidelines on the resolution and

1 In South Asia’s caste system, a dalit—formerly known asuntouchable—is a person outside and subordinate to the fourcastes.

2 CAROLYN SLEIGHTHOLME AND INDRANI SINHA, WOMEN IN THE SEX

TRADE IN CALCUTTA (1996).3 Amartya Sen, More than 100 Million are Missing, New York

Review of Books, Vol. 37, No. 20, December 20, 1990.4 On August 13, 1997, the Supreme Court of India issued a judg-

ment against sexual harassment at the workplace, which hascome to be known as the Vishaka judgment. It laid down thedefinition of sexual harassment, preventive measures andredress mechanisms. It stipulated a mandatory complaintcommittee on sexual harassment at all workplaces.

63%Increase in thecrime of importa-tion of girls from1999 to 2000, India.

24.5%Increase in thecrime of sexualharrassment from1999 to 2000.

6.6%Increase in rapesfrom 1999 to 2000.

6.1%Decrease inoffenses under theDowry ProhibitionAct from 1999 to2000.

Source: 2003 Report bythe Committee onReforms of CriminalJustice, Government ofIndia.


prevention of sexual harassment, first issuedby the Supreme Court, have become the tem-plate for the current bill on Sexual Harass-ment in the Workplace. The government isworking with various women’s groups on aDomestic Violence Bill that is intended tobe a comprehensive law addressing everyaspect of women’s experience of violencein the home.

Women are able to gain access to jus-tice throughout India by way of free legalaid services. West Bengal has a particularlyproactive Legal Services Authority that ex-tends to the sub-divisional level in eachstate district.

The impact of patriliny on women’s livesmust not be underestimated. After a womanis displaced from her parent’s home, herrights become fraught with insecurity, andshe is subject to incipient violence. Onceshe is outside the safe boundaries of a fam-ily, a woman’s grasp on her life is so uncer-tain that she may not have the resources

with which to conduct the long drawn-outbattle for justice when she becomes victimto violence or injustice. If she succumbs,culture-specific terminology, such as dowrydeath, is used to describe her demise. Wemust realize, as activist lawyer Flavia Agnesonce put it, that women succumb becausethey have nowhere to go. Help lines, shel-ters, and government- or NGO-run homes aremerely short-term remedies that are part ofthe web surrounding women’s lives in ourpatriarchal societies. In considering the is-sues of police and judiciary reform, we mustremain cognizant of the underlying genderissues and work to improve the protectionof women’s rights within our legal system.

It is not enough to think about justicein terms of the law and law enforcement.We must remember the social complicationof gender roles. Rule of law must ultimatelyinclude gender justice if it is going to pro-vide any justice at all.

Help lines,

shelters, and

government- or

NGO-run homes

are merely

short-term

remedies that

are part of the

web surround-

ing women’s

lives in our

patriarchal

societies.

■■■■■

Law reform has been an important tool in furthering thewomen’s movement, strengthening women’s rights, andimproving women’s quality of life in India for nearly 200years.• In 1829, the colonial government passed the anti-suttee daho

legislation, which outlawed the killing of widows on theirhusband’s pyres and in which Ram Mohan Rai, the great Indiansocial reformer, played a significant role.

• In 1856, Iswar Chandra Vidyasagar, the Bengali writer and socialreformer, lobbied for colonial legislation that would allow wid-ows to remarry and the Widow Remarriage Act XV was passed.A

DB

File

Pho

to


AT THE SYMPOSIUM

“Law and policy reform provides the fulcrum to achieve sustainable economic development.

Investments in economic development or social progress are unlikely to be as effective or

efficient or even enduring in the absence of an optimal mix of legal, institutional, and policy

structures. Indeed, law and policy reform is now an integral part of ADB’s poverty reduction

approaches.”—from Law & Policy Reform in Asia and the Pacific: Ensuring Voice, Opportunity & Justice

Asian Development Bank, 2005

Chapter 3International Collaborationsin Judicial Reform

■ EBRD’s Role in Judicial Reform and Training■ IDB’s Efforts in Legal and Judicial Reforms

EBRD’s Role inJudicial Reformand TrainingEMMANUEL MAURICEGeneral Counsel, European Bank forReconstruction and Development (EBRD)

The European Bank for Recon-struction and Development(EBRD) and ADB have similari-ties and differences with re-spect to their structures, mem-

bers, mandates, and projects. EBRD, likeADB, has supported legal and judicial reform.

EBRD is similar to ADB in so far as itscharter was modeled largely after the ADBcharter. Because EBRD services the coun-tries of Central and Eastern Europe and theformer Soviet Union, it shares a number ofrecipient countries with the ADB, specifi-cally the Central Asian countries that wereformerly part of the Soviet Union.

EBRD differs from the ADB in that EBRDis not directly involved in the alleviation ofpoverty. Instead, EBRD’s mission is to fosterthe transition of central and eastern Euro-pean countries from command economies(i.e. economies that are planned and con-trolled by a central administration) to open

market economies and to promote privateand entrepreneurial initiative in the neweconomies. Thus, EBRD refers to itself as atransition bank, rather than a developmentbank.

Another difference between the two in-stitutions is that EBRD has an openly politi-cal mandate. Article 1 of EBRD’s charter1 pro-vides that it may only lend to countries thatare committed to, and apply the principlesof, multi-party democracy, pluralism andmarket economics. These guiding principleshave led the EBRD to reduce its involvementin certain countries that have not fully rec-ognized these principles, particularlyBelarus and Turkmenistan.

Both EBRD and ADB are involved in fi-nancing and managing projects in the pub-lic and private sectors. However, the EBRDcharter provides that at least 60 percent ofits resources are allocated for the privatesector. Private sector loans serve EBRD’smission to facilitate the transition of state-owned enterprises to private ownership andcontrol, to help enterprises operating com-petitively in the market-oriented economy.EBRD exceeded its private sector fundingtarget last year when it directed 80 percentof its financing to the private sector.

EBRD [European

Bank for Recon-

struction and

Development] and

ADB both have a

legal reform

program, and

EBRD has a limited

judicial reform

program. Ten

years ago, the

EBRD started its

legal reform

program, called

the Legal

Transition

Program, in

keeping with the

Bank’s mandate.

■

1 Agreement Establishing the European Bank for Reconstruc-tion and Development found at www.ebrd.com/about/basics


usually an implementation gap in every sec-tor of every country.

The EBRD law reform program focuseson remedying the implementation gaps byensuring that authorities effectively under-stand, apply, and enforce the new laws. Incertain cases, this can be accomplished bysimply helping a country assemble a com-puterized registry of the laws. Remedyingimplementation gaps can also involve par-ticipation in training sessions to help judgesunderstand the new laws and apply them inthe most effective manner. EBRD has as-sisted with judicial training programs toimplement the New Secured TransactionsLaw in the Slovak Republic and the new In-solvency Law in Poland.

In 2004, the EBRD decided to go beyondthat limited approach and focus on judicialcapacity building on a larger scale. Inlaunching initiatives in this area, it appliedthe four-part legal reform methodology de-scribed above. It first determined that therewere myriad international standards thatdefined the parameters of an efficient andindependent judiciary. It identified theUnited Nations Basic Principles on Indepen-dence of the Judiciary, adopted in 1985, andthe related United Nations Procedures,adopted in 1989, as most relevant interna-tional standards. The Council of Europe’sRecommendations No. R(92)12 of the Com-mittee of Ministers to Member States on theIndependence, Efficiency and Role ofJudges, adopted in 1994, and the Council ofEurope’s European Charter on the Statutefor Judges, adopted in 1998, were also con-sidered. With respect to judicial behavior,EBRD relied on the Bangalore Principles ofJudicial Conduct of 2002, which had re-cently been adopted by the United Nations.

To compare the judiciaries in recipientcountries against these international prin-ciples, the EBRD relied on work done by theAmerican Bar Association and Central Eu-ropean and Eurasian Law Initiative (CEELI).Those organizations designed a judicial re-form index and surveyed fourteen of EBRD’stwenty-seven countries of operation.2 Thesurveys confirmed that the judiciary is

EBRD and ADB both have a legal reformprogram, and EBRD has a limited judicialreform program. Ten years ago, the EBRDstarted its legal reform program, called theLegal Transition Program, in keeping withthe Bank’s mandate. Due to EBRD’s involve-ment in private sector activities, its transi-tion program focuses on reform of commer-cial laws that are directly relevant to theactivities of investors and financiers in Cen-tral Asia and Eastern Europe, including thelaws of capital markets and corporate gov-ernance, concessions, insolvency and bank-ruptcy, secured transactions, and telecom-munications regulatory reform.

For each sector, EBRD engages in thefollowing methodology. First, it identifiesthe international standards or best prac-tices for compliance. Second, it assesses thelaws of the recipient countries against thoseinternational standards. Third, it developsand implements technical assistanceprojects to support local authorities to es-tablish investor friendly laws and soundinstitutions. Finally, it advances legal reformthrough outreach activities including legalroundtable discussions, and the legal jour-nal Law in Transition.

EBRD’s assessment of laws focuses ontwo aspects: 1) the extensiveness of thelaws, or the extent to which the law on thebooks comply with international standards;and 2) the effectiveness of the laws, or theextent to which the authorities in charge ofenforcement effectively apply the laws. Thisdual analysis has led EBRD to identify whatit calls the “implementation gap” which isessentially the measure of the effectivenessof the laws. EBRD has found that there is

2 EBRD’s countries of operations are: Albania, Armenia,Azerbaijan, Belarus, Bosnia and Herzegovina, Bulgaria,Croatia, Czech Republic, Estonia, Georgia, Hungary,Kazakhstan, Kyrgyz Republic, Latvia, Lithuania, FYRMacedonia, Moldova, Poland, Romania, Russia, Serbia andMontenegro, Slovak Republic, Slovenia, Tajikistan,Turkmenistan, Ukraine, and Uzbekistan.

“The EBRD law reform programfocuses on remedying theimplementation gaps byensuring that authoritieseffectively understand, apply,and enforce the new laws.”

Emmanuel MauriceGeneral CounselEuropean Bank forReconstruction andDevelopment (EBRD) Mr. Emmanuel Maurice is the General Counsel of the

European Bank for Reconstruction and Development(EBRD). Before joining the EBRD, he worked in the New York and Paris officesof a U.S. law firm and with the International Finance Corporation in Washington.He has Masters’ degrees in law from the universities of Paris and Stanford anda degree from the Institut d’Etudes Politiques de Paris.

Larry Ram

os

International Collaborations in Justice Reform 33

quite weak in many of these countries. Theweakest judiciaries were identified as thoseof Armenia, Bosnia, Kurdish Republic,Serbia, Montenegro, and Uzbekistan. Thespecific shortcomings identified were re-lated to judicial efficiency, accountability,and transparency, and lack of structuralsafeguards and financial resources avail-able to judiciaries.

Based on these assessments, EBRD de-cided to help countries launch an initiativeto train their judges in commercial law mat-ters. Fortunately, many countries in Centraland Eastern Europe were independently be-ginning to establish judicial training centersto train new judges and provide judges withcontinuing education. EBRD has cooperatedwith these training centers, which are usu-ally placed under the authority of the minis-ter of justice. The first EBRD commercial lawtraining project will take place in the KyrgyzRepublic with the cooperation of Interna-tional Development Law Organization(IDLO) in Rome, an organization which hasbeen involved in training initiatives for law-yers and judges around the globe.

In sum, the EBRD’s mission to developthe private sector and market-based econo-mies, while different from ADB’s emphasison public sector development, neverthe-less requires legal and judicial reform tocreate a legal environment that is condu-cive to investment, entrepreneurship, andeconomic growth. To this end, EBRD hassponsored and will continue to sponsor le-gal and judicial reform programs.

IDB’s Efforts inLegal and JudicialReformsJAMES SPINNERGeneral Counsel, Inter-AmericanDevelopment Bank (IDB)

The Inter-American DevelopmentBank (IDB)1 is an institutionvery similar to ADB. It is a re-gional development bank withforty-seven shareholders from

the countries of the Americas, Europe, Ja-

pan, and Israel.2 Similar to ADB, IDB’s insti-tutional goal is to further the economic andsocial development of its twenty-six borrow-ing member countries3 in Latin America andthe Caribbean. Roughly 95 percent of theIDB’s lending program goes to public sectorborrowers, i.e., to national and local gov-ernments and government entities that en-joy the full faith and credit of the nationalgovernment. It also has a mandate to lendto the private sector up to 10 percent of itsresources. Private sector lending supportsinfrastructure projects, local capital marketdevelopment, and trade finance. The Bankexpects private sector lending to increasein the next few years.

IDB loans, whether public or private, areprimarily for investment projects. It alsoprovides policy-based loans, which entitlecountries to disbursements for completionof specified changes to country policy. IDBalso provides technical assistance.

Since 1994, one of IDB’s main goals hasbeen to support efforts by its borrowingmember countries in the area of the mod-ernization the state. A new model of gover-nance is needed in order for the state tofulfill its new role. To support these neces-sary governance reforms, IDB supports ex-ecutive, legislative, and judicial reformsgeared towards the modernization of thestate. IDB’s efforts are strongly supportedby civil society in its member countries, thefree press, and the governments themselves.These efforts are reflected in IDB’s Modern-ization of the State strategy, approved byits Board of Executive Directors.

In reforming the executive branch, IDBseeks to promote the responsiveness of gov-ernments’ audit capacity and strengthentheir controller capacity. IDB advocatestransparency in the budget process andcontrol mechanism. In legislative reform,

1 The Agreement establishing the Inter-American DevelopmentBank is found at www.iadb.org/leg/Documents/Pdf/Convenio-Eng.Pdf

2 IDB’s non-borrowing member countries are: Austria, Belgium,Canada, Croatia, Denmark, Finland, France, Germany, Israel,Italy, Japan, Korea, Netherlands, Norway, Portugal, Spain,Slovenia, Sweden, Switzerland, United Kingdom, and theUnited States.

3 IDB’s borrowing member countries are, according to IDB’spercentage of project financing for the country: Argentina,Bahamas, Barbados, Belize, Bolivia, Brazil, Chile, Colombia,Costa Rica, the Dominican Republic, Ecuador, El Salvador,Guatemala, Guyana, Haiti, Honduras, Jamaica, Mexico, Nica-ragua, Panama, Paraguay, Peru, Suriname, Trinidad and To-bago, Uruguay and Venezuela.

IDB loans,

whether public

or private, are

primarily for

investment

projects. It also

provides policy-

based loans,

which entitle

countries to

disbursements

for completion

of specified

changes to

country policy.

IDB also

provides

technical

assistance.

■■■■■


IDB’s activities frequently concentrate onensuring transparency in the legislative pro-cess, encouraging the participation of civilsociety, and strengthening the links be-tween federal and state legislative entities.

Legal and Judicial Reform at IDBIDB’s Modernization of the State mandateincludes support of judicial reform and lawreforms. IDB’s programs identified differentareas of the law where reform was neededand worked with international standardsand methods to increase the competitive-ness of its member countries in these areas.Most of the countries in Latin America havelegal systems based on French or Spanishcivil law systems. There is a move under-way in many of these countries to move fromtheir traditional systems to ones that in-clude common-law-like characteristics. Ex-amples incude a move towards oral hear-ings and towards an accusatory system,rather than a system where judge is bothprosecutor and adjudicator.

IDB’s judicial reform agenda includescourt reform. To ensure the efficiency ofcourt systems, IDB has funded, among otherthings, the establishment of administrativesystems to support existing judiciary insti-tutions, speed up processes, and ensure thatjudges dedicate their time to theircaseloads. Other programs have trainedjudges in international standards and pro-vided education on the national law of other

states. Judicial reform projects have alsoprovided courts with equipment, facilities,and administrative support for case loadmanagement and to support judicial inde-pendence.

In its initial efforts, IDB deliberately didnot involve itself in any element of criminallaw. Traditional thinking at the time was thatcriminal law reform did not directly supporteconomic and social development. As IDB’sfunds were available exclusively for pur-poses of economic development, criminallaw reform was deemed to fall outside IDB’smandate.

However, IDB policy on criminal law re-form has changed over the last few years.IDB has acknowledged that in order to de-velop a modern society where there iseconomic and social equality for all, thecriminal law system, criminal law proce-dures, the police, the prosecutors and thepenal system must be reformed as well.Changing the criminal justice system, defin-ing the role of the police, and providing in-dividuals with access to courts are all re-forms that are critical to achievingeconomic and social development. IDB hasexpanded its efforts to improve criminaljustice even further to support a programto prevent community violence, specificallyviolence among teenagers and in the streets,as well as domestic violence. The programconsists of establishing community centers,training programs, and community policeorganizations to bring communities to-gether to prevent violence and crime. Crimi-nal law reforms and community action pro-grams are a necessary element in today’sholistic view of the ways in which economicdevelopment can be supported.

It has also invested in improving publicinformation about the law, ensuring accessto the courts, and promoting public under-standing of the function and financing of le-gal systems. IDB has provided support foralternative dispute resolution mechanismsand other methods for achieving resolutionof disputes that do not depend on the courts.

Lessons LearnedIDB has learned several lessons from its ex-periences with legal reform. First, legal re-form is never easy. Second, it is not alwaysagreed that legal reform is a priority to beplaced on the financing agenda by a bor-rowing member country. Third, in develop-

“IDB’s mandate now goes beyondsimply creating an enablingenvironment for invest-ments. TheIDB now counts poverty reduction,encourage-ment of social equity,and environmentally sustainableeconomic growth among its goals.”

Mr. J. James Spinner is General Counsel of the Inter-American DevelopmentBank (IDB). His career in IDB’s Legal Department included assignments in theOperational Division, working with Central America; the Institutional Office,working on the Bank’s procurement of goods and services, tax matters, andissues related to the Bank’s privileges and immunities; the Financial Office,working on IDB’s issuance of securities in capital markets around the world, itsfinancial operations, and its periodic capital increases; and as Deputy GeneralCounsel. Before joining IDB, Mr. Spinner practiced law in Washington, D.C. Heholds a J.D. from the Georgetown University Law Center and a Bachelor of Artsdegree, with highest honors, in History from Lehigh University.

James SpinnerGeneral CounselInter-AmericanDevelopment Bank

Larry Ram

os

International Collaborations in Justice Reform 35

ing reform programs, one size does not fitall. Fourth, legal reform is insufficient by it-self, and must be accompanied by other re-forms that strengthen the state’s role.

Legal and judicial reform is no longermerely aimed at providing a legal environ-ment that could support foreign and domes-tic investments. Judicial reform is an inte-gral part of IDB’s modernization of the state,with poverty reduction, encouragement ofsocial equity, and environmentally sustain-able economic growth among its goals.

Capacity building and legal and judicialreform must go beyond simply providingjudges with computers and other technicalequipment. While computer systems arenecessary to keep good records and man-age case flow, the computers are uselesswithout staff trained to use them. Judges

Meaningful

legal and judicial

reform does not

come quickly. It

is important to

take a multi-

lateral approach

that involves

chambers of

commerce,

governments,

and for civil

society to play

an active role

and provide an

oversight for the

government’s

tasks.

■■■■■

need administrative support and trainingto ensure their independence and to main-tain the public’s respect in the courts.

Meaningful legal and judicial reformdoes not come quickly. It is important totake a multi-lateral approach that involveschambers of commerce, governments, andfor civil society to play an active role andprovide an oversight for the government’stasks. ADR mechanisms should be devel-oped to alleviate the congestion in thecourts. It should be kept in mind that cer-tain of these are quick fixes, less than idealsolutions implemented because the basicunderlying structure is not working. In or-der to support conditions conducive foreconomic and social development our ef-forts must provide long-term sustainablereforms as well as immediate solutions.


Ideas in PoliceReform: GeneralOverviewPolice Reform: The Indonesian Context

ADRIANUS E. MELIALAAdviser to the Chief, Indonesian NationalPolice, and to the Security Police Reform Prog-ram of the Partnership for Governance Reform

The Indonesian police force, withapproximately 300,000 person-nel, is one of the biggest policeorganizations in the world. Thepolice force is currently under

the control of the President of the Repub-lic, as the police transitions from its formerstatus as a branch of the military to execu-tive control.

Historical BackgroundDuring the era of President Suharto, fromapproximately 1967 to 1997, the police wasa branch of the military. They were deployedto conflict areas and could be killed as com-batants. They were deployed to preventuprisings in communities. The police wereknown to abuse their power and there wasmuch corruption. Consequently, public per-ception of the police was very negative. Atthe end of the Suharto era, there were inter-nal and external factors pushing for policereform. Many young officers wanted thepolice force to be separated from the mili-tary, because they felt that they were dis-criminated against within the military. Also,the public wanted a better and more de-pendable police, primarily because theywere looking for alternatives to the military.

Initial ReformsIn 1999, the Indonesian National Police be-gan a reform program, which addressed thestructural, ethical (referred to as “instru-

Chapter 4Improving the Police’s Roleand Performance in ProtectingHuman and Economic Security

■■■■■ Ideas in Police Reform: General Overview• Police Reform: The Indonesian Context• Police Reform: A Bangladesh Context• Looking Back, Moving Forward: A Brief History of Ideas and Events Relevant to

Pakistan’s Police System■■■■■ Police Effectiveness and Accountability: Ideas to Launch Police Reform

• The Philippine National Police: Transformation and Reform• Implementation of Police Reforms• Access to Justice and the Urgency of Police Reform: Bangladesh Perspectives

During recent

years, the

President and the

Parliament [of

Indonesia] have

increased the

police budget by

300 to 400 percent,

which not only

finances the

reform effort, but

also boosts the

confidence and

morale of the

police.

■

Improving the Police’s Role and Performance in Protecting Human and Economic Security 37

mental”), and cultural aspects of the policeforce. The police organization was removedfrom the military and placed under thePresident’s control. The ethics and code ofconduct were rewritten to capture the newcivilian mission. The reforms attempted tochange the culture of the organization fromone that was perceived to be arrogant, vio-lent, and trigger-happy, to an organizationthat is focused on service to the commu-nity.

The reform efforts, though necessary,were not sufficient. Accountability and bud-getary control, for example, were not ad-dressed at all. It was unclear whether thereforms would actually lead to profession-alism and police responsiveness to publicdemands. These were the issues that thepress and non-government organizations(NGOs) wanted answered.

Catalysts and Obstacles to Police ReformStrong leadership within the police that issupportive of reform is essential to imple-menting any reform program. Indonesia isfortunate to have two police chiefs who arepro-reform. Political will is also critical, asreforms depend on increased spending andsupportive legislation. During recent years,the President and the Parliament have in-creased the police budget by 300 to 400percent, which not only finances the reformeffort, but also boosts the confidence andmorale of the police. External pressuresfrom the media, NGOs, and university stu-dents, particularly with respect to policeviolence and corruption, strengthens incen-tives for reform.

There are many obstacles to implement-ing any reform agenda. The military hasmade attempts to draw the police back intoits former functions. Without a comprehen-sive reform plan and with staff and leader-ship turnover, there is inconsistency of ap-proach. It is difficult to promote consistentand comprehensive reforms because of theuneven dispersal of resources across thesystem. For example, the police-to-popula-tion ratio in Bali is 1 to 300, but in Kaliman-tan, it is 1 to 2,500. Accountability mecha-nisms are still not fully in place. From 1999up to the present, at least 40 foreign partiesand international organizations have do-nated to police reform, with the number ofdonors doubling after the Bali bombing in2003. However, these foreign donors do not

closely examine the Indonesian NationalPolice (INP) agenda. The concern is that ifthe police are free to set their own reformagenda, they will use the funding to increasetheir salaries and power, but will be reluc-tant promote police accountability, over-sight, and police ethics.

The Reform AgendaIndonesia started its police reform processfive years ago. It is pursuing strategies toenhance the effectiveness and accountabil-ity of the INP. These are: (a) developing in-ternal capacity; (b) providing professionalsupport and technical assistance; (c) usingthe partnership model of policing; (d) pro-viding more external controls; (e) auditingpolice finances; (f) establishing the NationalPolice Commission; and (g) establishing alocal police complaint board.

Improving AccountabilityThere has been a new movement to evalu-ate the effectiveness and accountability ofthe Indonesian police force by analogizingit to a private corporation. Corporations andthe police are similar to the extent thatwhen we invest in them, we expect some-thing in return. Increased accountabilitymeans holding the police responsible fordelivering better results and maintaininghigh standards. In a democratic system, thepublic invests in the police force that thenserves the public. The police force must benot only fiscally accountable, but it mustbe accountable for behaviorist deeds aswell. To this end, the police force shouldhave a dialogue with the community so asto be most responsive to community needs.

Developing Internal CapacityThe INP has been developing internal ca-pacity by developing new laws, codes ofconduct, budgetary systems, internal con-trol mechanisms, and modes of action, par-ticularly in handling riots. Indonesian schol-ars have also conducted research on howthe Indonesian paramilitary police devel-oped techniques to control demonstrations.The INP has adopted universal standardsand procedures for internal investigations,which incorporate human rights values.

Providing Support and Technical AssistanceInternational and multilateral donors playan important role in providing financial sup-

Strong leader-

ship within the

police that is

supportive of

reform is

essential to

implementing

any reform

program.

Indonesia is

fortunate to

have two police

chiefs who are

pro-reform.

■■■■■


port and technical assistance to INP.Through technical assistance, INP gains ac-cess to consultants and advisers who bringto INP the international best practices inpolicing. Support and technical assistanceshould be structured with a focus on creat-ing sustainable solutions. Donors must real-ize that addressing police reform requiresmore than just providing technical assis-tance and funding. They need to ensure thatthe police are held to account for the re-sources and technology provided to them.

Engaging the Public throughthe Partnership ModelDespite significant accomplishments towardpolice reform, the INP suffers from low pub-lic trust. We need to continue with our re-form program in order to regain the supportand confidence of the public. The partner-ship model to enhance police effectivenessand accountability has been promoted bythe Partnership for Governance Reform in In-donesia and the United Nations Dev-elopment Fund (UNDP). The idea is to pro-mote partnership and cooperation betweenthe public and the police so that there is lesspublic resistance to police action. Sensitiveissues such as corruption can be dealt withmore effectively if the police and the publicare partners in the enforcement process.

Establishing External ControlThe police need external control to ensureeffectiveness and accountability. The policeis surrounded by many institutions thatmonitor its performance. We have an Om-budsman, but that office has not involveditself with police operations. The parliamentexercises political control, and the Minis-try of Finance and the Bureau of Auditingexercises budgetary control over the police.The Bureau of Auditing monitors police ex-penditures to help the police manage theirresources and prevent abuse.

The press, non-government organiza-tions (NGOs), and the private sector, par-ticularly students, also exercise significantinformal control on police power, becausethey act as whistle-blowers for police mis-conduct, violence, and other inappropriatepolice actions. The local government, thebusiness sector, and donor agencies like theAsian Development Bank (ADB) also serveas external controls over the police.

The existing formal and informal con-trols, while necessary and helpful, are in-sufficient. We need a local police complaintboard that will have power to oversee thepolice’s execution of their duties and theirinternal disciplinary proceedings. Also, aNational Police Commission has been pro-posed to provide further political oversightand high-level managerial control. However,the bill creating the Commission, which isstill awaiting the President’s signature, lim-its the Commission’s role to that of an advi-sory body to the President.

ConclusionThe Indonesian National Police has come along way from its days as a paramilitary or-ganization under the Suharto regime. Thereforms that have been undertaken haveimproved the system, but there are still fur-ther reforms to be implemented. Future re-forms must focus on increasing the effec-tiveness and accountability of the police.Sustainable reforms can only take placewith political and public support and withthe help of the international community.Together, we will modernize the IndonesiaNational Police to provide security for ourcitizens and create an environment that willpromote economic growth.

“There has been a newmovement to evaluate theeffectiveness and accountabilityof the Indonesian police force byanalogizing it to a privatecorporation....Increasedaccountability means holding thepolice responsible for deliveringbetter results.”

Adrianus E. MelialaAdviser to the Chief,Indonesian NationalPolice, and the SecurityPolice Reform Programof the Partnership forGovernance Reform

Dr. Adrianus E. Meliala is an adviser of the Chief of the Indonesian NationalPolice and adviser of the Security Police Reform Program of the Partnership forGovernance Reform in Indonesia. Dr. Meliala lectures at the Institute of PoliceScience and is part of the academic staff at Faculty of Social and Political Sci-ences University of Indonesia, Jakarta. Mr. Meliala has a Ph.D. from the Univer-sity of Queensland, Australia. He has published several articles in internationalpolicing journals as well as Indonesian-language books on policing.

Larry Ram

os


Police Reform: A Bangladesh ConceptASM SHAHJAHANFormer Inspector General of Police,Bangladesh

Every government is expected toprovide a safe and secure envi-ronment. Every communityneeds an efficient and effectivepolice force. Every citizen wants

quick police response and easy access tojustice.

The United Nations DevelopmentProgramme (UNDP) has reported onBangladesh twice, noting the importance ofhuman security generally and the lack ofhuman security in Bangladesh. Accordingto a 1996 report on “Human Developmentin Bangladesh: A Pro-poor Agenda”:

Human Security, achieved through the establish-ment of law and order, enables people to exer-cise their choices safely and freely, and with theconfidence that opportunities they have today arenot totally lost tomorrow…Clear laws, enforcedjustly, transparently, and efficiently, are neces-sary to create an enabling, predictable, and se-cure living and working environment…This, inturn, requires (a) that the laws are known; (b)that they are enforced in an equitable and timelymanner; (c) that an independent and crediblejudiciary operates to resolve conflicts and makebinding decisions; and (d) that laws can be re-vised if/when they cease to serve the purpose forwhich they were intended.1

In a September 2002 report, “HumanSecurity in Bangladesh—In Search of Jus-tice and Dignity,” UNDP observed that“Bangladesh today is weighed down by asignificant level of human insecurity.”2

Human insecurity does not stem from asingle sector of the community. The prob-lem cannot be solved by the government orthe criminal justice system alone. Every sec-tor of society must work together effectivelyto solve the problem. However, the policehave a direct responsibility for ensuring

physical security. Police reform should im-prove the efficiency and effectiveness withwhich the police fulfills its constitutionalmandate to promote respect for fundamen-tal human rights, ensure equitable accessto justice, and observe the rule of law.

Police HistoryBangladesh’s colonial history continues toimpact the attitude, behavior, and cultureof the police force. Bangladesh’s police lawand regulations, as well as major criminallaws like the Penal Code, Evidence Act, andCriminal Procedure Code, are products of the19th century colonial era. The Bangladeshpolice force was created by the Police Actof 1861, three years after the Sepoy Mutinyor first serious rebellion against British rule.It has not been changed, despite the chang-ing needs of society. It emphasizes the exer-cise of authority rather than accountability.It does not conceive of the concept of polic-ing as a service or as a profession. The Po-lice Act of 1861 was designed for a colony,and does not meet the needs of an indepen-dent democracy in the 21st century. Evenafter independence, the police has contin-ued to be used in the colonial fashion. Suc-cessive governments required the police toperform functions that, for decades, earnedthem the hostility of the community. Gradu-ally, mistrust and suspicion developed be-tween the police and the community. Policesuccess substantially depends on a support-ive community with respect for the law, sothat a central part of any reform agenda mustbe reinvigorating public trust for and confi-dence in the police.

Resource ConstraintsPolice efficacy is constrained by lack of fi-nancial, technological and human re-sources. Government funding for the policeis completely inadequate. In Bangladesh,per capita spending on police service is ap-proximately 95 taka (less than $1.50 US dol-lars) a year. The police budget is less than 3percent of the national budget. The policebudget itself does not allocate resourceswell. Only 0.19 percent of the police budgetis spent on training, and almost nothing isallocated to research. Insufficient fundingresults in insufficient technological re-sources. Police weapons and equipment areoutdated, and there are too few transportvehicles at the police station level. The qual-

1 United Nations Development Programme, 1996 Report on“Human Development in Bangladesh: A Pro-poor Agenda”(1996), available at www.un-bd.org/undp/info/hsr/Preface.pdf

2 United Nations Development Programme, Human Security inBangladesh: In Search of Justice and Dignity (2002), avail-able at www.un-bd.org/undp/Human%20Security

LessthanUS$1.50Yearly per capitaspending on policeservice inBangladesh (95taka). The policebudget is less than3 percent of thenational budget. Ofthis, only 0.19percent of thepolice budget isspent on training,and almost nothingis allocated toresearch.

Anamul Haque Anam


ity of investigations is poor, partly becausethere are no facilities for forensic and scien-tific analysis. The police also lack humanresources. They are overworked and under-staffed. The national police to populationratio is only 1:1300, and at the sub-districtlevel it is as low as 1:8000. Most police offic-ers are required to work thirteen to fourteenhours a day and on weekends and holidays.

Reform AttemptsSince the country’s liberation in 1971, overa half dozen committees and commissionshave been formed to diagnose the policeills and to come up with specific recommen-dations. These initiatives have been fruit-ful to the extent that the reports were com-piled, but unfortunately the recommenda-tions they carried have not been imple-mented. Scarce resources, mixed incentivesand vested interests prevented the reformagenda from being implemented.

Reform AgendaGovernment agencies that spend taxpayers’money, such as the police, are consideredservice providers. Money is spent to pro-duce an output, in this case police servicesin preventing and investigating crime, andthis output must be directed to the needsof the community that provided the fund-ing for the service (see Figure 1).

The police organization exists to deliverservices to the community. Any reformagenda must go beyond transforming the

police alone. It also has to create a visionthat will provide the community with valuefor their money. The community wants tosee their police as a source of visible reas-surance. Police reform mechanisms shouldemphasize those factors that make themresponsive to the community and account-able for their actions. These reforms shouldconsider the following aspects:

A. ORGANIZATIONAL REFORMS• Removal of organizational constraints.

The police has inherited political andorganizational constraints over the de-cades. Management should value andempower its personnel, encourage staffinitiative and teamwork, allow commit-ted leadership to reward good work, andpunish lazy and ineffective personnelappropriately. All efforts should bemade to promote organizational dev-elopment.

• Competent leadership. In a labor-inten-sive institution like the police, leader-ship plays an important role, so thatcompetent police leadership must befostered.

• Status improvement. It is necessary to im-prove the social, economic, and officialstatus of the police, especially the con-stables. The criteria for the selection ofpolice officers should be transparentand merit-based.

• Culture of quality. Conservative, cautious,and authoritarian management stylesmust be replaced with the concept ofTotal Quality Management (TQM).

• Morale boosting measures. A police forcethat is competent, courageous, and con-fident will be more efficient and effec-tive than one with low morale.

B. STRUCTURAL REFORMS• Coping with increased demands. The de-

mands on the police increase every day

“Police reform should improvethe efficiency and effectivenesswith which the police fulfills itsconstitutional mandate topromote respect for fundamentalhuman rights, ensure equitableaccess to justice, and observe therule of law.”

ASM ShahjahanFormer Inspector Generalof Police, Bangladesh

Mr. ASM Shahjahan is a former Inspector General of Police of Bangladesh witha career in the police service spanning almost four decades. As Inspector Gen-eral, Mr. Shahjahan oversaw 100,000 police officers and was responsible formaintaining the internal security and law and order in Bangladesh. Mr. Shahjahanalso served as an adviser to the Non-Party Caretaker Government of Bangladeshin 2001, and was in charge of the Ministries of Education, Primary and MassEducation Division, Science and Technology, and Youth and Sports. Mr. Shahjahanhas a Master of Commerce Degree from the University of Dhaka.

COST(PoliceBudget)

POLICING OUTPUT(CommunitySatisfaction)

(Based on The Accountability Trap for Police by Tim A. Hooke)

➔ ➔

➔

Taxpayers’ Money

FIGURE 1: POLICE AS SERVICE PROVIDER

Larry Ram

os


with the increasing complexities of so-ciety. Reform efforts must determinewhich core functions fall within the ex-clusive responsibility of the police andwhich should be contracted out or takenup by the private security industry.

• New training philosophy. The Bangladeshpolice need to be exposed to new train-ing philosophies, procedures, practices,and methodologies. In order to fully dis-card the remnants of the colonial sys-tem, supervisory leaders as well as sub-ordinate ranks need to unlearn manythings while trying modern ideas.

• Research. Adequate funding should bemade available for research. Every ma-jor police unit should have a researchbranch to help it develop effective meth-ods of policing and adopt new tech-nologies. Experts and resource persons,in addition to standard police person-nel, should also be utilized.

C. COMMUNITY RELATIONSHIP• Strengthening police-community part-

nerships. The police culture should bebased on mutual support and trustwithin the organization and with mem-bers of the community. The policeshould work with the community to pre-vent crime and to solve problems thatadversely affect the safety and securityof the community.

• Improvement in police response time.An effective emergency response systemmust exist so the police could respondto community needs in a timely manner.

Latest Reform InitiativesIn November 2003, the UNDP submitted aNeeds Assessment Report for reforming theBangladesh police with a view to strength-ening human security.

Now, a project titled “StrengtheningBangladesh Police” has been launched toimprove police efficiency, effectiveness, andaccountability. This three-year project is incollaboration with the Ministry of HomeAffairs (MOHA), UNDP, and the UK Depart-ment of International Development (DFID),with the initial phase costing US $13 mil-lion. The project aims to facilitate access tojustice for the vulnerable groups (women,children, the poor) and focuses on:• police professionalism;• promoting interaction with community

for crime prevention;• improved scientific investigation;• better use of resources;• human resource management;• due emphasis on modern training pro-

cedures and methodologies;• anti-corruption; and• performance measurement and over-

sight.

Sustaining Police ReformThe success of an essential national issuelike police reform depends on uniform sup-port at the highest levels. In a multi-partydemocracy, the consensus of leading politi-cal parties and leaders is crucial to the suc-cess of a project. Mere political will or in-tention is not enough to guarantee imple-mentation. The sustained implementationof reforms across electoral cycles is ex-tremely important to the success of any re-form initiative. Political differences be-tween outgoing and incoming governmentsmust not in adversely affect reform actionspursued by the outgoing government norshould they slow down the continuedimplementation process pursued by the in-coming government.

Creating a sense of ownership over a re-form program is vital. All reform processesshould be participatory with a clear senseof strategic direction. Reforms must ensurethe operational independence of the policeand involve the community in the dischargeof its services.

ConclusionReforming a century-old police organizationis not an easy venture. Any reform agendais likely to encounter resistance becausepeople with vested interests will be disad-vantaged by the reform effort. Even after areform agenda is launched, immediate re-sults should not be expected becausechanging the institutional culture of thepolice simply takes time. Further, sustain-able reform cannot be achieved withoutcontinuous allocation of adequate funds.Notwithstanding, funding should also be ac-companied by appropriate performancemeasurements to ensure satisfactory valuefor the investment.

Promoting human security must go be-yond reforming the police’s services to thepublic. If we intend to secure improved fun-damental human rights of people, we must

A project titled

“Strengthening

Bangladesh

Police” has been

launched to

improve police

efficiency,

effectiveness,

and account-

ability. This

three-year

project is in

collaboration

with the

Ministry of

Home Affairs

(MOHA), UNDP,

and the UK

Department of

International

Development

(DFID), with the

initial phase

costing US $13

million.

■■■■■


respect the rights of the police themselves.Police reforms, therefore, should include in-creasing salaries and assuring that the po-lice enjoy reasonable living and workingconditions. These benefits should be pro-moted in conjunction with strict discipline,accountability, and oversight. Benefits forpolice personnel should be implementedwithout sacrificing resources which shouldbe allocated to ensuring adequate funds forsustained reform initiatives, enhancing su-pervisory and managerial competencies, in-stituting morale boosting measures, remov-ing opportunities for corruption and abuseof power, and ensuring operational freedom.

The police force in Bangladesh hasmuch to learn from its colonial origins, butmust take care to not to become entrenchedin the past. Police reforms should focus onincreasing effectiveness, efficiency, andeconomy while maintaining the notion ofpolice as public service.

Looking Back, Moving Forward:A Brief History of Ideas and EventsRelevant to Pakistan’s Police SystemDR. MUHAMMAD SHOAIB SUDDLEDirector General, National Police BureauMinistry of Interior & Narcotics ControlIslamabad, Pakistan

1765–1947

The origins of the Pakistani po-lice system lie in a system cre-ated by the East India Companythat placed overwhelming pri-macy on the office of the district

collector. In this system, the collector wasarmed with both police and magisterial pow-ers. Police powers allowed the collector toobtain revenue by subjecting “unwillingnatives” to untold atrocities. Since the col-lector held magisterial powers as well, noother body checked the collector’s abuses.The collector’s oppressive practice of ob-taining revenue from people by torture at-tracted the notice of the British House ofCommons. A commission created to exam-ine allegations of torture (the “Torture Com-mission”) was convened in Madras in 1855.It recommended to the British House ofCommons the creation of a district policeorganization that was independent from the

revenue administration system.In Calcutta, Bombay and Madras, where

a majority of the British in India lived, thecity police forces were reorganized and pat-terned after the London Metropolitan Po-lice. The police forces were separated fromthe district collector’s office. The TortureCommission’s recommendations triggeredthe enactment of a new police law in Ma-dras—the Madras District Police Act of 1859,which recognized the principle of separationof the judiciary from the executive. However,in the aftermath of the “mutiny” of 1857, theMadras District Police Act was not acceptedas a model law for the rest of British India.The Police Commission of 1860, overturningthe Torture Commission’s recommenda-tions, supported “temporary” continuationof police and judicial powers in the handsof the district collectors. As a result, the Po-lice Act of 1861 was enacted instead.

The Police Act of 1861 placed the dis-trict police under the general direction andcontrol of the district collector-magistrate.This arrangement created a “junction of thethief-catcher with the judge,” and was widelycriticized. It elevated the district magistrateinto a “local governor empowered to usethe police and courts at will for the mainte-nance of the British rule.” Sir James Stephen,law member of the Governor-General’s Coun-cil (1870–71), propounded the philosophyof the district administration in the follow-ing words:

The administration of justice is not in a satisfac-tory state in any part of the Empire but the firstprinciple to be borne in mind is that the mainte-nance of the position of District Officers is abso-lutely essential to the maintenance of British rulein India and that any diminution in their influenceand authority over the natives shall be dearlypurchased even by an improvement in the admin-istration of justice.

The Police Commission of 1902 grap-pled with the problems inherent in the dualrole played by the district magistrate. Itobserved that “there is no necessity for thedual control and undue interference of thedistrict magistrate.” However, the Commis-sion fell short of recommending any amend-ment to the Police Act of 1861.

1947–1999After Pakistan gained independence in 1947,

The origins of

the Pakistani

police system lie

in a system

created by the

East India Com-

pany that placed

overwhelming

primacy on the

office of the

district collector.

...The collector

was armed with

both police and

magisterial

powers. Police

powers allowed

the collector to

obtain revenue

by subjecting

“natives” to

untold atrocities.

■■■■■


a bill filed in the Legislative Assemblypassed a bill on 7 February 1948 that aimedto transform the police in Karachi from aninstrument to keep citizens on a tight leashinto a public-friendly agency staffed by pro-fessionals tasked with preventing and de-tecting crime and enforcing the law withjustice and impartiality. However, this billwas never authenticated by the governorsgeneral.1 The same—powerful—vested in-terests ensured that subsequent police re-form initiatives were unsuccessful. In 1951,a committee headed by Sir Oliver GilbertGrace, then Inspector General of Police ofthe North Western Frontier Province(NWFP), recommended that the organiza-tion of the police in Karachi should be fun-damentally changed. However, no headwaycould be made because of strong opposi-tion by the bureaucratic elite. The PakistanPolice (Constantine) Commission of 1960–61 specifically went to India to study met-ropolitan police system for Karachi, but thecommissioners chose not to make any rec-ommendation in this regard.2 The Pay & Ser-vices Re-organisation Committee (1961–62),headed by Justice Cornelius, recommendedin clear terms the introduction of metropoli-tan system of policing for cities like Karachiand Lahore, but the recommendation wasnot accepted. The issue was again taken upby yet another Police Commission (1969–70), headed by Major General Mitha. Thecommission concluded:

The need is for establishing clearly and unmistak-ably the fact that the Superintendent of Police in adistrict is the undisputed head of the police forcein his district and that the district magistrate mustnot interfere in the day to day or internal adminis-tration of the police force.

In 1985, the Police Committee3 was man-dated to examine whether the existing po-lice system based on Police Act of 1861 was

capable of meeting the growing law and or-der challenges, especially in Pakistan’s ma-jor urban centers. The committee recom-mended that the fundamental restructuringof the existing system, especially for capi-tal cities and major towns with a popula-tion of over 500,000. A Ministerial Commit-tee approved the recommendation. How-ever, it was decided instead to send a del-egation consisting of a Member/Secretaryof the Ministerial Committee and the Addi-tional Secretary of the Ministry of Interiorto India and Bangladesh to study the re-forms proposed by the Police Committee.4

The delegation returned convinced that thePolice Committee’s proposal merited imple-mentation in Karachi, Lahore and Islam-abad on priority basis. However, before anyheadway could be made in this regard, theprime minister was dismissed in May 1988,and police organizational reform suffered aserious setback yet again. After the newelected government was installed in 1989,the prime minister announced that the oldpolice system would be reorganized on anexperimental basis in selected cities of Pa-kistan. Another delegation,5 headed by theInterior Secretary, was sent to India andBangladesh preparatory to the proposedreform. The delegation returned with a defi-nite recommendation to amend the PoliceAct of 1861.

Several foreign missions to Pakistanalso echoed the need for police reforms inPakistan. A British delegation headed by SirRichard Barrat, the Chief Inspector of Con-stabulary of the United Kingdom, which vis-ited Pakistan from 21 to 26 January 1990,recommended that the entire philosophy ofpolicing in Pakistan needed to be changedin the manner suggested by the Police Com-mittee of 1985. The delegation observed:

The central problem surrounding police…in Pa-kistan is that the present system was created manyyears ago under colonial rule and has not beenrefined or evaluated to keep pace with the chang-ing face of the country in the last decade of thetwentieth century….Police…throughout Pakistanhave clung to the role envisaged by the Police Actof 1861, in which the main functions were themaintenance of law and order and preservationof the status quo by methods of suppression andcontrol.

A UN Mission led by Vincent M. Del

1 The governor-general’s office returned the bill apparentlyfor rectification of certain typographical errors, but it seemsthat this was a ploy to gain time, as the governor-general’sfast deteriorating health was making it increasingly impos-sible for him to attend to his official duties.

2 They felt that as, by then, Karachi had ceased to be the capitalof Pakistan, the issue was no longer relevant.

3 The author was a member/secretary of the 1985 Police Com-mittee.

4 It is worth recalling that Bangladesh—which was East Paki-stan until 1971—had already changed the 1861 system ofpolicing in Dhaka (1976), Chittagong (1978) and Khulna(1987).

5 The author was part of this delegation.

1985The year the PoliceCommittee inPakistan wasmandated toexamine whetherthe existing policesystem based onthe Police Act of1861 was capableof meeting thegrowing law andorder challenges,especially inPakistan’s majorurban centers.

Muhammad Bilal


Buono, UN’s Interregional Advisor for CrimePrevention and Criminal Justice, which vis-ited Pakistan from 26 March to 10 April 1995,made a number of observations includingthe following:

Since 1960, there have been eleven separatecommittees or commissions established by gov-ernments in Pakistan and four international mis-sions requested by the Government of Pakistanwhich have recommended major reforms of po-licing in Pakistan. These have for the most partbeen ignored and the remedies suggested havebeen unimplemented. Had the proposed reformsbeen undertaken, much of the present crisis couldhave been avoided….The present police system,which has been allowed to deteriorate so badlyby successive governments and been so abusedfor political patronage, has not yet completely bro-ken down due to the dedication, integrity, initia-tive and professionalism of a large number ofindividual officers and constables. In spite of theirbest efforts, policing will collapse not only inKarachi but also in other parts of the country un-less law enforcement institutions are strengthenedimmediately.

It recommended that Pakistan’s politi-cal leadership should declare, as fundamen-tal policy, that an effective, viable, indepen-dent but publicly accountable police wascrucial to the development of stable demo-cratic government institutions.

A team of experts from the Japanesepolice, which visited Pakistan in April 1996,recommended that the police should envis-age itself as a public service institution. Italso recommended that police reforms inPakistan should focus on building trust be-tween citizens and the police. It identifiedthe following action areas to be crucial inbuilding trust between citizens and the po-lice: (1) the creation of institutional struc-tures that ensure political neutrality anddemocratic control of the police; (2) theproper sharing of responsibilities betweenthe federal government and the provincialgovernments; (3) the adoption of unifiedchain of command; and (4) the establish-ment of recruitment and selection systemof personnel based on merit.

Based on the Japanese team’s report,Pakistan’s Good Governance Group of the2010 Programme recommended thatPakistan’s police forces be depoliticized, andtheir recruitment, postings, transfers, train-ing and career development, ensured onmerit.

A team of experts from Colombia em-phasized the urgency of these and similarreforms. It observed in a report on Sustain-able Peace in Karachi (1999): “If a profes-sionally competent, politically neutral anddemocratically controlled Karachi Metro-politan Police Force is not formed, there willprobably be no police reform or reconstruc-tion of the public sector, both of which areessential elements for sustainable peace.”

1999–PresentIn November 1999, the government decidedto set up the Focal Group on Police Re-forms.6 It asked the Focal Group to suggesthow to restructure the police. The FocalGroup submitted its recommendations inFebruary 2000. These were enthusiasticallyreceived and intensely debated by membersof civil society as well as the media.

The National Reconstruction Bureau(NRB), which was set up with the mandateto, among other things, recommend mea-sures for ensuring good governance and de-politicization of state institutions, deliber-ated on various aspects of the Focal Group’sblue print of police reforms and formed aThink Tank on Police Reforms that con-

“People perceived the police asagents of the powerful, not asmembers of an organizationpublicly maintained to enforcerule of law. The police needed tobe reorganized into a modern,contemporary organizationcapable of policing freesocieties.”

Dr. Muhammad Shoaib Suddle is the Director General of the National PoliceBureau, Ministry of Interior & Narcotics Control in Islamabad, Pakistan. Prior tothis, he served as Inspector General of Police in Balochistan, Pakistan. He is alsothe President of the International Police Association, Pakistan Section, and Inter-national Director of the Asia Crime Prevention Foundation in Tokyo, amongmany other positions in various professional organizations. He holds a Ph.D. inWhite-Collar Crime and an M.Sc. (Econ.) in Criminology, both from the Univer-sity of Wales.

Dr. MuhammadShoaib SuddleDirector GeneralNational Police BureauMinistry of Interior& Narcotics ControlIslamabad, Pakistan

6 The author was a member of the Focal Group on Police Re-forms.

Larry Ram

os


sulted with the police and stakeholdersfrom the government, private sector andcivil society.7

While deliberating on the Focal Group’srecommendations, the Think Tank notedthat Pakistan’s police had increasingly beencalled upon to act as agents of the politicalexecutive rather than of a democratic state.Selective application of law against oppo-nents, whether due to political expediencyor at the behest of persons of influence, be-came the norm rather than an exception.Political and personal vendettas werewaged and won through manipulation ofthe instruments of state. Whatever safe-guards existed against the floodgates ofpressure, inducement or threat from crimi-nals or ethnic, sectarian or other powerfulelements were virtually obliterated. As aresult, people perceived the police as agentsof the powerful, not as members of anorganisation publicly maintained to en-force rule of law. The police needed to bereorganized into a modern, contemporaryorganization capable of policing free soci-eties, not natives.

Key issues debated by the Think Tankincluded: (1) How should the Pakistan Po-lice be organized in order to best meet thelaw and order challenges of the 21st cen-tury? (2) What model would be most suitedin bringing about a radical change in thehigh level of police-public estrangement?(3) How can we “police the police”—that is,subject the organization to effective demo-cratic control, and yet ensure its opera-

tional neutrality, among other things?As a result of its members’ discussions,

the Think Tank identified the following criti-cal steps toward police reform:

1. The police hierarchy needs to be maderesponsible not only for the organiza-tion and the administration of the po-lice force, but also for other mattersconnected with maintenance of lawand order. The fractured chain of com-mand will need to be fully restored sothat policing operations could no longerbe subjected to extra-departmental par-tisan influences.

2. The police needs to be insulated frompolitical interference, and apoliticalpublic safety commissions at the na-tional, provincial and district levelscould meet this objective. These inde-pendent bodies would be assigned tooversee critical aspects of police func-tioning—approve the annual plan of thepolice and monitor delivery of perfor-mance targets. They would also be in-volved in selecting police chiefs.8

3. It is crucial to bring police under a sys-tem of external accountability that en-joys public confidence. This could beachieved by establishing an indepen-dent statutory body called the PoliceComplaints Authority. All serious com-plaints against police should fall withinthe purview of this authority.

4. The role, duties and responsibilities ofthe police need to be redefined so thatpublic service takes precedence over allother considerations, and the preven-tion and detection of crime is carriedout in view of its social purpose. Thevoluntary support and cooperation ofcitizens in preventing and detectingcrime was recognized, and the policewould do well to act proactively in ush-ering an era of community policing inPakistan.

5. Police professionalism needs to be en-hanced through the introduction offunctional specialization, in separatingthe police’s investigative and “watchand ward” functions. This would ensurequality investigations by a cadre of spe-

“Putting the

customer first”

and responding

to public

expectations of

what a good

police force

would be like

will improve

public

confidence in

the police.

■■■■■

7 The NRB’s Think Tank on Police Reforms comprised seniorpolice administrators who knew the police best--what worked,what didn’t, and how police reforms should be launched. TheThink Tank sought the view of the judiciary, and experts ofother criminal justice subsystems. It held discussions withtop business leaders who had used innovative managementpractices to turn their organizations into successful enter-prises. It consulted public administration experts who knewhow best to apply the principles of reinventing public sectororganizations to improve police services. The author was amember of the Think Tank.

8 The proposed independent bodies would be patterned afterthe Japanese public safety commissions. Commenting on theimprovement in police behaviour that resulted after the in-troduction in 1947 of the public safety commission system inJapan, David Bayley, a noted social scientist and police histo-rian thus observes:

The fact is that a transformation did occur in policebehaviour in Japan in a relatively short period oftime immediately after World War II. It is associatedwith democratization and in one of the most prizeddevelopments of the post war period. Japan's con-temporary record of excellence with respect to policebehaviour is striking not only in relation to the UnitedStates but also in relation to its own past.

Police professionalismcan be enhancedthrough trainingprograms and perfor-mance audits.

Muh

amm

ad B

ilal


cialist investigators. The measure willalso be a major step toward introduc-ing modern technologies in police workand establishing standard criminal in-vestigation practices.

6. An independent inspectorate of inspec-tions tasked with conducting perfor-mance audits of the police should beestablished. This would enable the gov-ernment and other stakeholders to re-ceive an independent assessment ofpolice performance.

7. “Putting the customer first” and respond-ing to public expectations of what agood police force would be like will im-prove public confidence in the police.Historically, senior officers in the policehierarchy have been reluctant to recog-nize the need to view police forces asorganizations that are fundamentally nodifferent from any other enterprise orbusiness. In particular, they have tendedto not push for internationally acceptedcompensation levels, and have not ac-tively sought to change oppressive work-ing conditions, which are a common ex-cuse for poor police performance.

These steps were considered whiledrafting the new Police Order of 2002.9 Al-though not all principles were entirely ac-cepted, the reforms in the new Police Order

will, if properly implemented, enable policeto function in a new environment, free fromthe debilitating effects of old outmoded co-lonial system of policing designed in 1861to control the “natives.” However, the imple-mentation process is inseparably tied tochanges in the wider institutions of societyas well as the provision of adequate man-power and financial resources, especially atthe level of police stations. Without a realis-tic police structure, adequate compensationand benefits10 and adoption of effective ac-countability and other measures, the out-come of any structural reforms will remainelusive.

Law enforcement modernisation is oneof the greatest challenges confronting us, achallenge that can and must be met. Thereare no short cuts, and no easy answers. Likean old Chinese saying, a journey of a thou-sand miles begins with the first step. Let ustake the first steps with commitment anddetermination and complete the journey.There is not a moment to lose.

1 Until recently, each village in a rural police station had one or more village watchmen whoassisted the police in performance of law and order duties. Today, the village police is practicallydefunct.

2 There are sessions courts and courts of magistrates that try criminal cases within each district.A district and session judge heads the district judiciary, but a district magistrate controls execu-tive magistrates that try cases punishable up to three years’ imprisonment. Criminal cases insessions courts are prosecuted by public prosecutors, and not by the district police.

Each of Pakistan’s provinces has control over its police forces.Although the federal government exercises no direct control overthe provincial police forces, it can take over the administration ofa province (and therefore, control over the provincial police) insituations of grave emergency. In cases of internal disturbancesthat are beyond the provincial government’s control, the federalgovernment also exercises its authority.

At the provincial level, the inspector-general serves as chiefof the police forces. He or she is assisted by such number ofadditional inspectors-general, deputy inspectors-general and as-sistant inspectors-general of police as the provincial governmentmay determine as necessary.1 Police forces under the district levelare answerable to the inspector-general and his or her deputies.For convenient administration, three to four districts have beengrouped into a police “range.” Each range is placed under thecontrol of a deputy inspector general of police.

At the district level, the district superintendent is the headof the police forces. Each district has been divided into three tofour sub-divisions, and each sub-division has been placed underthe charge of a sub-divisional police officer (SDPO). An SDPO,

who is either an Assistant Superintendent of Police or a DeputySuperintendent of Police, supervises police stations located withinthe jurisdiction of a sub-division and is directly responsible to thedistrict superintendent of police.

Each police station is under the charge of a police officerwith the rank of inspector, known as the Station House Officer.Under each Station House Officer are sub-inspectors, assistantsub-inspectors, head constables and constables. Among the dis-trict police’s functions is the investigation of criminal cases.The district police retain a prosecution branch that prosecutescases in courts of magistrates.2 In some districts, however, gov-ernment attorneys have been appointed to prosecute such cases.—DR. MUHAMMAD SHOAIB SUDDLE

Organization and Administration of Pakistan Police

9 Under the new law, various public safety commissions willevaluate police performance for the delivery of targets, whilealso acting as “sounding boards for local opinion.” Therewould be a system of independent performance audit of po-lice performance. The head of the police would be operation-ally independent, but would be accountable to the commu-nity. The investigation of criminal cases will be the responsi-bility of a distinct cadre of specialist investigators. The ex-ternal oversight of serious complaints of police excesses willlay the foundation of eventual transformation of police froma coercive arm to an accountable and responsive serviceenjoying confidence and trust of the people.

3 These would include allowances, provision of accommoda-tion, an eight-hour workday and a day off each week.

Law enforce-

ment modern-

ization is one of

the greatest

challenges

confronting us, a

challenge that

can and must be

met. There are

no short cuts,

and no easy

answers.

■■■■■


OPEN FORUMOn Improving the Police’s Role andPerformance in Protecting Human andEconomic Security: Ideas in Police Reform

Approaches to Police ReformThere are several models that may be used to approach police reform:• Criticism of the Police: Criticizing the police and demanding reforms is generally not an effective ap-

proach and may breed backlash from the closely-knit police organization.• The “Santa Claus” Model: Under this approach, the police are given funding for equipment and other

resources so that they can perform better. This model frequently fails to reform the underlying structureof the police and the existing problems continue to persist once the donations stop.

• Engaging the Police: This model seeks to bring a non-threatening reform agenda to the police, whichempowers them to pursue reforms by providing them with appropriate information and incentives.

Depoliticization of the Police• Police reform cannot be left entirely to the police, nor should it be left entirely to the politicians. The best

approach involves both politicians and the police working together. The community must also be involvedin critical decision-making about police reforms.

• Police appointments should not be politically controlled, but should be delegated to an independent boardor commission, which either has representation from multiple parties, or is completely apolitical boards.

• Police chiefs must be given fixed tenure. It is important that the chief feels that he is secure in hisposition, otherwise he will focus on maintaining his position and will not be motivated to pursue reforms.For example, in an effort to curry favor with his political superiors, he may recruit personnel based onsocial considerations and recommendations, instead of based on merit.

• The intervention of civil society to stop political influence on the police is important. Foreign-fundedNGOs can play an important role, but domestic civil society must also be involved in order for policereforms to be sustainable. Community involvement in human rights activism can also support policereforms.

Levels of police accountabilityThere must be two levels of police accountability: internal and external.• An independent internal accountability mechanism, such as a police complaint authority, should be acces-

sible to both the police and the community.• Other branches of the criminal justice system, including the prosecution and the judiciary, must be

reformed so that these institutions can act in concert as an external accountability mechanism.

■■■■■

Larry Ramos

Participants considerhow communityinvolvement in policereforms translate intoconcrete benefits topolice forces andsociety.


Police Effectivenessand Accountability:Ideas to LaunchPolice ReformThe Philippine National Police:Transformation and ReformGEN. EDGARDO AGLIPAYDirector General, Philippine National Police

When I began my career, thepolice was part of the De-partment of National De-fense. On 13 December1990, Congress passed into

law Republic Act No. 6975, “An Act Estab-lishing the Philippine National Police undera Reorganized Department of the Interior andLocal Government, and for other Purposes,”which made the PNP a civilian entity underthe Department of the Interior and LocalGovernment (DILG). The law created a po-lice force national in scope and civilian incharacter, which was administered and con-trolled by the National Police Commission.

The primary duty of the police force isto serve and protect members of the com-munity. The community and the policeforce have reciprocal rights and obligations.The community has the right and privilegeto demand that the police provide a safeand secure environment. On the other hand,the community has the responsibility tosupport and assist the police in many ways.Most crimes are solved only with the coop-eration of the community, as it provides theinformation that guides the investigationprocess and leads to the solution of thecrime. But, of course, the community canperform its role effectively if a credible po-lice force exists. One of the primary goals ofour reform agenda is to establish and fosterthe collaboration of the professional policeforce with the community.

Transforming the PNPThe PNP reform program is now in its diag-nostic and program formulation phase. Withtechnical assistance from the United Na-tions Development Programme (UNDP) Gov-ernance Portfolio, we have embarked on a

comprehensive diagnostic study and formu-lation of a multi-year PNP transformationand public investment program. We envi-sion this program to be in keeping with thePNP’s vision of a professional, dynamic, andhighly motivated police force working inpartnership with a responsive communitytowards the attainment of a safe place tolive, work, and invest in.

Last year, we conducted several focusgroup discussions where our police offic-ers and civilian stakeholders worked to-gether to identify and analyze the issues andproblems confronting the PNP and to iden-tify workable solutions to these problems.This exercise provided us with diagnosticmaterial based on the experience, percep-tion, and perspective of the stakeholdersand claim holders. For example, there is atension between high community expecta-tions of the police and the resources avail-able to meet those expectations. Currently,our police to population ratio is 1:1400,which is far too low to meet the demandsplace on the police. Thirty percent of ourpolicemen do not have firearms. Also, wehave only fulfilled 9 percent of our commu-nication needs and 60 percent of our mobil-ity needs. In order to meet community ex-pectations for police performance, we mustprovide the police with increased resources.

A multi-stage technical assistanceproject will assess precisely what reformsare necessary. The project will undertake aholistic assessment of the PNP institutionalframework, operating system, and its hu-man, physical, technological, and financialresources, and conduct a SWOT (StrengthsWeaknesses Opportunities Threats) analy-sis of the PNP. On the basis of these assess-ments, the technical assistance project willthen define the direction and focus of thePNP transformation program. In keepingwith articulated direction and focus, theproject will identify and define the variousreforms that will achieve the PNP vision, andensure that the PNP transformation pro-gram complements the reforms to the otherpillars of the criminal justice system.1

The technical assistance project willproduce (a) a diagnostic study of the PNPtransformation program, and (b) a pilot

1:1,400The Philippinepolice to populationratio.

30%The percentage ofPhilippine police-men who do nothave firearms.

9%The percentage ofcommunicationneeds that havebeen fulfilled.

-36%The approval ratingof the PhilippineNational Police.

1 In the Philippines, the pillars of the criminal justice systeminclude the community, the police, the prosecutors, the courts,and the penal system.


project called “Safer Philippine Cities andCommunities” for implementation in se-lected cities before its national implemen-tation.

The PNP transformation programadopts a holistic and seamlessly integratedapproach that: (a) addresses policy and leg-islative reforms by updating law and crimi-nal law enforcement; (b) rationalizes thegovernment’s law enforcement institutionalframework relevant to the PNP’s functions;(c) undertakes a comprehensive reengineer-ing of the PNP’s organizational structure,staffing, operating systems, technologies,and resources; and (d) builds capabilitiesof the PNP personnel and institutes appro-priate reforms to the motivational, integrity,and competence systems to ensure the re-cruitment and maintenance of quality po-lice manpower. The program will implementreforms to improve the PNP’s resource baseand resource management system, reduceresource-related politicization, and im-prove resource generation and manage-ment. It will considerably upgrade criminalmanagement technologies, both in relationto the crime information management sys-tem and police equipment.

As earlier noted, one of the specific ini-tiatives of the transformation program is the“Safer Philippine Cities and Communities”pilot project. This project will test a prepa-ratory and coordinated approach in the cityand community levels to maintain a cultureof peace and to prevent and combat crime.Some of the project’s core components arecrime mapping, community crime analysis,and environmental design. It adopts a loca-tion-specific community layout plan to pre-vent crime. This will include measures suchas street lighting, increased police pres-ence, and converting dark unused placesinto well-lit parks.

Other project initiatives include theadoption of a community economic dev-elopment program to mobilize the businesssector, the local government, and the na-tional government agencies to improve em-ployment, encourage entrepreneurship andmanage credit. We will implement mecha-

nisms to address social issues such as pro-viding drug rehabilitation services and com-munity counseling for youth offenders. Theproject will also focus on providing ad-equate policing and surveillance, using col-laborative policing with the community toensure a 24-hour police patrol for the entirecommunity. We will encourage communityparticipation and initiate a community-based information dissemination programin parishes, schools, community organiza-tions, and barangays.2 We will request localgovernments to enact regulations to createan environment conducive to peace. Ourproject will require the participation of vari-ous stakeholders: the business sector, localgovernment units, schools, civil societygroups, and the community partners of thePNP.

Police InitiativesThe PNP chiefs have initiated independentprojects to improve the police force. In mycapacity as the Police Director General, I de-cided to adopt the strategic goals set by mypredecessor, former Police Director GeneralHermogenes E. Ebdane, Jr. for organizationalreform, neighborhood partnership, educa-tion, and training. I decided to adopt his pro-gram after reviewing a survey conducted bythe Ordoñez Commission3 which found thatthe people want their policemen to be

“One of the primary goals ofour reform agenda is toestablish and foster thecollaboration of theprofessional police force withthe community.”

General Edgardo Aglipay is the chief of the Philip-pine National Police. He entered and graduatedfrom the Philippine Military Academy. He earneda degree in military arts and sciences from the U.S. Army Command and Gen-eral Staff College at Fort Leavenworth, Kansas, U.S.A. He went on to obtain anM.A. in Business Administration from the University of the Philippines and anLL.B. from the Ateneo de Manila. As a young lieutenant, he was awarded theGold Cross Medal. He was adjudged the best sector commander of the Metro-politan Command for four consecutive years. Under his leadership, the LagunaPC/INP Command was adjudged the best provincial command in the Philippinesin 1989. He was also adjudged as the best provincial director in 1991. Under hiscommand, the special action force was awarded the best national operationalunit in 1994. As regional director, he was commended for successfully securingthe Asia Pacific Economic Council Summit in Subic, Olongapo as Subic TaskForce Commander in 1996.

Gen. Edgardo AglipayDirector GeneralPhilippine National Police

2 A barangay is the smallest local government unit in the Phil-ippines and is very similar to a village. Municipalities andcities are composed of barangays.

3 The Philippine National Police Reform Commission, chairedby former Justice Secretary Sedfrey Ordonez, was createdin 2003 to address major grievances in the police force.

Larry Ram

os


friendly and humble, visible, effective, andlaw-abiding. Currently the PNP has a bad pub-lic approval rating, -36 percent, as comparedto -27 percent approval rating for Congress.

To address these concerns, I have comeup with a project called CARE, which standsfor Courtesy, Action, Results, and Example.Courtesy means every policeman must showrespect and basic courtesy to every citizen,especially the common man. Action requiresvisible policemen enforcing the law to thefullest. Every policeman is accountable forany failure in the delivery of police servicesto the people in his area of responsibility.Results require all police stations to makean inventory of unsolved cases, includingthe list of criminal syndicates and wantedpersons. Each police station must resolveat least five percent of unsolved cases permonth. The police are no longer rated onthe basis of how good their crime statisticsare. Instead, they are rated on how well theycomply with the requirement that, everymonth, they apprehend 5 of every 100wanted persons, solve 5 unsolved cases,and imprison or otherwise render 5 out ofevery 100 criminals incapable of commitingcrimes. Finally, the police chiefs lead the or-ganization by example. PNP Commandersshould be exemplars of what a policemanshould be physically, mentally, and morally.We must embrace humble public service asan example to our police force and avoidwasting police resources by, for example,using unnecessary motorcycle escorts. Mostof the members of the PNP, especially thesupervisors and leaders, were former mili-tary men who began their service during thePhilippine Martial Law years. Our goal is tochange the mindset of the police, to makethem feel that they are servants of thepeople and not the other way around. There-fore, its leaders must lead not by rule but byexample and by maintaining good relation-ships with the people.

ConclusionThis is just the beginning of the PNP’s trans-formation program and we are committedto implementing the next stage. While manyreform efforts have been implemented in thepast, this is the first well-planned, well-de-signed, and well-sequenced series of reformsthat will achieve our vision to provide ourpeople with a safe and secure environment.

Implementation of Police Reformsin BangladeshASM SHAHJAHANFormer Inspector General of Police,Bangladesh

One of the most important issues for police reform andother law reform efforts isimplementation. Once the re-form programs have been for-

mulated, once the laws have been rewrit-ten, how can we ensure that the reforms takeeffect?

Many of our laws as they currentlystand, if followed, would constitute reformsin effect. Our constitution emphasizes thateveryone should be treated equally and thatall decisions should be made without fearor favor. If this could be achieved, we wouldbe halfway to achieving the reforms we de-sire. However, the laws and regulations arefull of exceptions and loopholes so that, tothe extent that they are enforced at all, dis-cretion becomes the rule. There are severalways in which the implementation of ourlaws as they currently exist as well as futurereform efforts can be strengthened:

• Community Involvement: Successful po-lice reform programs promote a senseof community ownership and participa-tion by those affected by reforms. Thepolice and the community must consultwith one another and work together inorder to achieve effective reform. Thedemand for access to justice must springfrom the people affected.

• Transparency: In order for the commu-nity and the police to work together andhave mutual respect, police recruitmentand interim review must be transparentand merit-based.

• Political Neutrality: The police must beinsulated from political pressures andother influences of those with vestedinterests.

• Accountability: The police must be heldstrictly accountable for any breach intheir code of conduct. Accountabilityand oversight mechanisms must be ap-plied to all ranks of the police force.

Most of the

members of the

PNP, especially

the supervisors

and leaders,

were former

military men

who began their

service during

the Philippine

Martial Law

years. Our goal

is to change the

mindset of the

police, to make

them feel that

they are

servants of the

people and not

the other way

around.

■■■■■


• Adequate Resources: The police need ad-equate financial and technical re-sources and improved working condi-tions to provide them with a functionalenvironment. We should focus not onthe conditions of the high-ranking of-ficers but those of the police stations.The police officers cannot perform theirjobs effectively if they do not have agood working environment with thenecessary supplies and equipment.

Any change in the police force or in so-ciety at large effects morale, but we mustnot let this discourage us. Instead, weshould encourage changes in attitude andcontinue to move forward. We shouldstrengthen our police force by ensuringtransparency, consulting with the commu-nity, and remaining consistent and commit-ted to our program of reform.

Access to Justice andthe Urgency of Police Reform:A View from BangladeshMD. ASHRAFUL HUDA, PPMInspector General of Police, Bangladesh

One challenge confronting thepolice force in Bangladesh isits lack of adequate resources.This lack of resources ham-pers police performance. It is

hard to expect a poor policeman to chase acriminal and apprehend him using only a.303 mm rifle and a worn-out jeep, which,until recently, were used by the Bangladeshpolice. The present democratic governmenthas provided the police with improvedweapons and vehicles in spite of limited re-sources available. Modern automatic andsemi-automatic weapons have replaced the.303 mm rifles that were first issued duringthe Second World War, and a huge fleet ofnew cars has replaced our worn-out ve-hicles. But many other reforms are needed.

Crime investigations are so expensivethat the cost to investigate a single crimefrequently exceeds the entire annual bud-get allocation for a police station. Underthese conditions, the economic and per-sonal interests of poor people are less likelyto be protected than those of the rich. Cor-

rupt practices are encouraged. In responseto these problems, more funds have beenmade available to all the police stations inthe country for criminal investigations. Thegovernment has also addressed the lack ofaccess to justice for the poor by passing theLegal Aid Services Act in 2000.

The police force in Bangladesh is notonly under-funded but also understaffed.Other developing countries with socio-economic conditions similar to those inBangladesh have a police-to-population ra-tio of 1:600 and 1:700, yet the police-to-population ratio in Bangladesh is 1:1300. Iwould be the happiest man if we achieve apolice-to-population ratio of at least 1:1000.

Despite these shortcomings, theBangladesh police has recovered from itspublic image crisis. We, as a public-service-minded organization, are trying to be moreresponsive to citizen complainants, to payspecial attention to the rights and privi-leges of women and children, and to dealwith offenses committed against womenand children more carefully. In order to dothis, we try to motivate our members anddevelop pride in the profession. We recog-nize that to ensure the success of this en-deavor, we will need a good working envi-ronment, logistical support, the latest tech-nology, a minimum means of subsistence,and training.

One area of reform that is close to myheart is the development of better relationsbetween the police and the media. The po-lice needs to improve its relationship withthe media because media can play a signifi-cant role in bringing the police and publiccloser. It is unfortunate that the press mayat times misinterpret the police’s views.Nonetheless, it is worth the effort to bridgethe gap between the police and the public.

I believe that a free and civilized coun-try must guarantee the rights of its citizens.This requires democratic policing based onhuman rights, transparency, equality, ac-countability, and clarity. The police mustcontinue to become more pro-active,people-friendly, motivated, dependable andmost especially, sensitive to the needs ofwomen, children, and senior citizens. Weneed to improve our response time, appre-hend convicts, acquire skills for effectiveinvestigations, and prosecute criminals be-fore the courts of law. We need to reorientour legal, structural, and organizational fo-

The police must

continue to

become more

pro-active,

people-friendly,

motivated,

dependable and

most especially,

sensitive to the

needs of

women, children,

and senior

citizens.

■■■■■

Anam

ul Haque A

nam

Sensitivity to the needsof children is one majorrequirement from thepolice.


cus from the colonial premises to moderndemocratic norms and concepts. This large-scale reform requires funding, expertise,time, and uncompromising political com-mitment. These are the areas where we canbenefit from assistance and cooperation

“One area of reform that isclose to my heart is thedevelopment of better relationsbetween the police and themedia. The police needs toimprove its relationship with themedia because media can play asignificant role in bringing thepolice and public closer.”

Md. Ashraful Huda, PPM is the Inspector General of Police of Bangladesh.

Md. Ashraful Huda, PPMInspector General ofPolice, Bangladesh

from friendly nations, development part-ners, and donor agencies. The Asian Dev-elopment Bank (ADB) is positioned to playa leading role in this process.

We must appreciate that in today’s glo-bal era, policing is no longer merely a na-tional issue. In this age of the informationsuperhighway, free trade, open economies,free borders, and increasing regionalism andinternationalism, present-day policing mustalso take advantage of opportunities forglobal cooperation. I can assure you thatwe are eagerly looking forward to such co-operative efforts.

The government of Bangladesh and thepolice force seek to ensure a crime-free so-ciety for the whole nation. Given adequatesupport, the continued commitment of thegovernment, and the efforts by the indi-vidual members of the police, we will be ableto face the challenges to implementing po-lice reforms.

Larry Ram

os

OPEN FORUMOn Enhancing Police Effectivenessand Accountability:Ideas to Launch Police ReformChallenges to Police Reform• Police reform is an integral part of wider public sector reforms. It should be considered a developmental

investment and a necessary complement to other public service reforms. The goal for police reform, as forother public sector reforms, should be to render the institution effective and efficient.

• Police reform should not focus exclusively on increasing the size of the police force. There is no directcorrelation between a larger police force and better law enforcement.

• A balance between appropriate respect for police authority and trust in the police force must be struck inorder for the police to be able to effectively enforce the law. The public should be mindful of the fact that thepolice will enforce the law impartially. The public should not, however, fear abuse in the hands of the police.

• Police testimony needs to be accepted as credible in court. One of the reasons why the criminal convictionrate in Pakistan has been very low, is that police testimony had low credibility. In the Philippines, thePhilippine National Police (PNP) addressed a similar credibility problem by creating a separate unit calledthe Scene of the Crime Operations (SOCO), composed of criminology graduates. The local police would beresponsible for cordoning off the scene of the crime, while the gathering of evidence and taking of witnessstatements would be delegated to the SOCO. The investigator and the SOCO would then collaborate inpreparing the case with the prosecutor.

Strategies for Community Policing and Involvement• Community Policing means partnership between the community and the police, with the understanding

that it is the joint responsibility of the police and the community to maintain safety and security. Thecommunity has the duty to support the police and the police have the duty to listen to the community. There


must be mechanisms in place so that members of the community can communicate with the police. Thepolice must understand and appreciate that safety and security can be more effectively maintained incooperation with the community.

• In the Philippines, the PNP law gives the local leaders the authority to choose their policemen and evenchiefs from a selection provided by the PNP. Community participation is fostered by local peace and ordercouncils, which have representatives from civil society as well as government offices, and operate at everylevel, from the municipalities through the national government.

The PNP works with religious leaders and ecclesiastical communities to educate the people on the illeffects of criminality and drugs. The PNP has also requested that citizens report the presence of criminals.Community leaders have been trained on how to disseminate information, how to prevent crime in theircommunity, how to identify what information is useful to the police, and how to gather and transmit thisinformation to the PNP.

Civilian Oversight• Former and current chiefs of police both emphasized the need for effective internal and external oversight

mechanisms and civilian oversight bodies. In certain developed countries, the chiefs of police have not beensupportive of civilian oversight bodies and have been active and effective in getting rid of them.

Donor organizations should be aware that civilian oversight bodies are a very controversial issue. Thepolice is effected whenever a civilian oversight body exposes police misconduct such as torture or custodialdeaths. Police frequently do not like civilians telling them what to do, as they believe that they have superiorknowledge and specialization in the field.

• Civilian oversight is an important factor to support police accountability, but should be limited to the policylevel and the prioritization of programs. It should not include providing input on operational procedures,which should be left to the professional judgment of the police themselves.

National Police CommissionsTHE PHILIPPINES• The National Police Commission is a collegial body composed of a Chairman and four regular commissioners.

The powers of the Commission include:a. Exercising administrative control over the Philippine National Police;b. Developing policies, rules, and procedures to improve police services;c. Establishing, examining, and auditing the standards for performance, activities, and facilities of

police agencies throughout the country;d. Preparing a police manual prescribing rules and regulations for efficient organization, administra-

tion, and operation, including recruitment, selection, promotion and retirement; ande. Establishing a system of uniform crime reporting.

PAKISTAN• A National Commission is composed of twelve members, six of which are members of the Parliament, with

both political parties equally represented. The bipartisan approach sends a message that policing is not apolitically driven issue. A three-member selection panel comprised of the president, the prime minister, andlead by the chief justice of the supreme court, selects the remaining six. The president nominates onemember of the Commission, the prime minister nominates another, and the panel must to agree unani-mously on the nominees.

Police or public safety commissions are one element of a police reform program, but even constitu-tional bodies like the Philippine National Police Commission have not been fully effective in providingservices to the people. Such commissions may be more flexible and effective if they were bodies created bystatute rather than by the Constitution, as it is easier for the legislature to amend the law, than it is to amendthe Consitution. However, given the power and independence of the police, a commission may not providea sufficiently direct check on the police’s power to maintain administrative control of the police force.

Political Pressure and Public Accountability• Political pressure is a problem faced by the police of many countries, particularly Bangladesh, Indonesia,

Pakistan and the Philippines. While the Philippine National Police Commission supervises the administrative


and the operational aspects of the PNP in order to minimize political influence, the fact is the Commissionitself is made up of politicians who select the police force leadership. To minimize the effects of politicalinvolvement, the PNP engages in community dialogue and strives for transparent operations. These mecha-nisms keep the issues in the open and encourage the public to engage in dialogue with the police, thuspreventing politicians from exerting unchecked influence over the police.

Political interference with police investigations prevents effective deliverance of justice, as shown bya UNDP study. Political interference takes several forms. For example, in Bangladesh police First Informa-tion Reports (FIR) detailing crimes are not accepted in any police station without political clearance. Thisallows politicians to prevent the investigation of certain crimes.

Protection of Vulnerable Groups• Women, children and the poor make up the groups most vulnerable to the deficiencies in the police

institutions. For example, in Bangladesh, between eight- and nine-hundred women and children have beenimprisoned despite insufficient evidence, simply because they did not have adequate representation andthe resources to defend their rights.

• Several countries have taken these vulnerable groups into consideration when launching or implementingreforms:

a. In the Philippines, the PNP established a women’s and children’s desk ten years ago. Investigationsof women and children are now conducted in a separate room by specially trained police officers.There have also been changes in the procedure of examining rape victims, so that the police nowutilize a system supported by the United Nations.

b. In Indonesia, the INP established a special council inside the police investigation office to provideservices to vulnerable groups, including women, children, and the elderly. All female officers arerequired to undergo special training to deal with female victims. Over 4,000 male officers have alsoundergone sensitivity training to better process crimes involving victims who are members ofvulnerable groups.

Donor Involvement• Donors are involved in police reform efforts in various ways in many countries. Donations are not always as

beneficial as they should be. Lack of donor coordination with the local government, competition amongdonors, and self-interested donor agendas can impair the efficacy of donor support. There are few evalua-tions of donor support for police reform. Without comprehensive follow-up evaluation, donor agencies andthe recipient countries are vulnerable to repeating mistakes or renewing ineffective programs.

• For example, the Organization for Security and Co-operation in Europe (OSCE) started a large-scale policereform program three years ago, in which Kyrgyzstan, an ADB DMC, was the host of the flagship program.The program was poorly designed and within a few months’ of its launch triggered a vehement protest bycivil society and non-governmental organizations against the program. Reform programs will be much moresuccessful if they build on past experiences and lessons learned by previous reform efforts.

ADB emphasizes the connection between law enforcement the reduction of poverty and economicdevelopment. The study of lessons learned in effecting police reform in Pakistan, Bangladesh, and othercountries will be crucial in designing and implementing future reform programs in these countries andelsewhere.

■

Chapter 5Enhancing the Effectivenessand Accountability of theJudiciary■ Access to Justice in the Philippines: A Prerequisite to Prosperity■ Challenges in Implementing Access to Justice Reforms in Bangladesh■ Challenges in Implementing Access to Justice Reforms in Pakistan■ Judicial Reform in Indonesia

Access to Justice inthe Philippines:A Prerequisite toProsperityHON. ARTEMIO V. PANGANIBANAssociate JusticeSupreme Court of the Philippines

In the distant past, the highest court inthe Philippines (and in many parts ofthe world) was shrouded in mystery.Its processes were secretive, its ses-sions private, and its members

shielded from public scrutiny. It has beendescribed as a fortress, a Mount Olympuswhere the gods were unapproachable anduntouchable.

Despite its sometimes mysterious ways,the Philippine Supreme Court is treated asa coequal of the Executive Branch and Con-gress. It is vested by the Constitution withthe solemn duty to nullify any act of anybranch of government—including those ofthe President and of Congress—on the

ground of “grave abuse of discretion.”1 Pur-suant to such plenary authority, the Courthas, on many occasions, struck down lawsthat contravened the Constitution,2 execu-tive and administrative orders issued with-out lawful authority,3 and mega contractsentered into with grave abuse of discretionby the officials concerned.4

Indeed, the judiciary has a vital role inthe development of the country; it reachesnot only the traditional domains of peaceand order, but almost every aspect of na-tional and community life—be it social,economic, political or humanitarian. More-over, the judiciary stands as the last bulwarkof democracy and the ultimate recourse ofthe people in redressing grievances not at-tended to or, worse, committed by otheragencies of government.

The Need for Transparencyin Judicial ProcessesBecause of the all-encompassing and meta-morphosing effect of the judiciary on thelives of our people, there has been an ever-growing call for more transparency on itspart. In response, the doors of the judicialfortress have been partially lifted and the

Because of the all-

encompassing and

metamorphosing

effect of the

judiciary on the

lives of our

people, there has

been an ever-

growing call for

more trans-

parency on its

part. In response,

the doors of the

judicial fortress

have been

partially lifted and

the gods have

become a bit more

accessible. Both

their persons and

their work have

been subjected to

more rigid public

scrutiny.

■

* See endnotes on page 58.


gods have become a bit more accessible.Both their persons and their work have beensubjected to more rigid public scrutiny.

Verily, the judicial enclave has been in-vaded by the transparency requirements ofthe Constitution,5 the Ethical StandardsLaw,6 the Canons of Judicial Ethics7 and theNew Code of Judicial Conduct for the Phil-ippine Judiciary.8 The democratic space andlibertarian spirit that the Supreme Court hasrepeatedly espoused in its judgments ofother government institutions have seepedinto its own functions and activities.

Indeed, the information revolution haspermeated the judiciary. Our people nolonger accept judicial doctrines they do notunderstand. Neither do they blindly deferto judgments that do not explain their ra-tionale. For its part, media has persistentlyknocked on the ramparts of the judicial for-tifications and climbed the steep gorges ofMount Olympus. “[T]he invasive power andinfluence of media have penetrated thethick walls of the judicial fortress.”9

Because of its vital role in the life of thenation, the judiciary has become the focusof many credible developmental agencies

“Since I oppose the deathpenalty, I personally welcomedthe Mateo ruling. It gives deathconvicts an intermediate layer ofreview to ensure an error-freejudgment. Death convicts mustbe given the same opportunityfor multiple review as thoseconvicted of lesser crimes.”

Hon. Artemio V.PanganibanAssociate JusticeSupreme Court of thePhilippines

Justice Artemio V. Panganiban chairs the Third Division of the Supreme Court ofthe Philippines. Concurrently, he is chairman of the House of RepresentativesElectoral Tribunal (HRET). He also heads seven major committees taskedmainly with the implementation of the Judicial Reform Program initiated by ChiefJustice Hilario G. Davide Jr. (Computerization; Public Information; Judicial Ex-cellence; Legislative-Executive Relations; Raffle for Division Cases; Justice forAll Through Education; and Access to Justice for the Poor.) At the same time, heis also a consultant of the Judicial and Bar Council (JBC). Justice Panganibanserved as vice president of the Philippine Chamber of Commerce and Industry,Governor of the Management Association of the Philippines, and president ofthe Tourism Organization of the Philippines. He also served as president of thePhilippine Daily Inquirer, the country’s most widely circulated newspaper and ofthe Rotary Club of Manila, the first and largest civic club in Asia. JusticePanganiban completed his associate in arts with highest honors and his lawdegree cum laude aside from being named “most outstanding student.” Heplaced sixth among 4,216 examinees in the bar examinations of 1960.

Larry Ram

os

like the World Bank (WB) and the ADB. Theyrealize that stability in the rule of law andpredictability in the rendition of decisionsare indispensable to investor confidenceand economic development, and ultimatelyto good governance.

Today, there is growing interest in howthe judiciary can show its pro-people orien-tation—how it dispenses justice to themarginalized and the disadvantaged. In-deed, access to justice especially by thepoor is as essential to good governance, asinvestor confidence is to the economy.

The Pro-Poor Bias ofour Constitution and LawsThe Philippine Constitution is pro-poor, pro-labor and pro-human rights. Having arisenfrom the ashes of an authoritarian regime,our 1987 Constitution is a document that isinternational in outlook,10 promotes socialjustice,11 respects human rights,12 respondsto the role of women,13 protects labor,14 andis cognizant of the rights of indigenous cul-tural communities.15

This Constitution spells out in neat de-tail the rights of persons accused of crimes16

and assures them of free access to the courtsand adequate legal assistance, which “shallnot be denied to any person by reason ofpoverty.”17 Furthermore, it clearly provideswhat are known as the Miranda rights of ac-cused persons.18 In all criminal prosecutions,due process and the right to “competent andindependent counsel” are guaranteed.19

Furthermore, social justice is given highpriority in our constitutional hierarchy.20

To implement these pro-poor constitu-tional mandates, Congress has passed sev-eral laws, among which are those that aimto do the following:a. define the rights of persons arrested or

detained;21

b. protect women and children from do-mestic violence;22

c. protect children from abuse, exploita-tion and discrimination;23

d. penalize violations of basic humanrights;24

e. settle disputes amicably at the barangaylevel;25

f. enhance the capability of law-incomegroups to acquire low-cost housing;26

g. develop agriculture and to empowersmall farmers;27 and

h. accord protection to labor.28

Enhancing the Effectiveness and Accountability of the Judiciary 57

marginalized and underrepresented in the past—the farm hands, the fisherfolk, the urban poor,even those in the underground movement—tocome out and participate, as indeed many of themcame out and participated during the last elec-tions. The State cannot now disappoint and frus-trate them by disabling and desecrating this so-cial justice vehicle.

Nowhere is the protection of the Courtfor the weak clearer than in its labor lawdecisions. Under its watchful eyes andsteady hands thrived and bloomed theseeds sown in 1940 by Calalang v. Williams.35

For sure, some of the battles36 that havebeen waged in this front still rage to thisday. Thus, the Court has steadfastly ruledthat:a. workers may be dismissed from work

only upon (1) either a valid or authorizedcause, and (2) upon observance of dueprocess;37

b. illegally dismissed workers are entitledto reinstatement, damages and backwages;38

c. strict technical legal requirements maybe disregarded whenever they are usedto deny substantial justice to workers;39

d. employees, though dismissed for a justcause, may be awarded separation payon the grounds of equity and social jus-tice, except when they have been dis-missed for serious misconduct or someother cause reflecting on their moralcharacter;40

e. workers’ quitclaims and waivers aregenerally not binding and should notbar employees from claiming what islegally due them under the law;41

f. employees in the private sector can,subject to reasonable restrictions,picket and strike to protect themselvesagainst exploitation and to seek betterconditions of employment;42

g. local recruitment companies may be li-able for violation of the labor contractsof overseas Filipino workers;43 and

h. labor doctrines are extended to civil ser-vants who have been dismissed fromthe service when less punitive penaltieswould have sufficed.44

The foregoing discussion is by no meansexhaustive.

The magnitude and viciousness of hu-man rights violations in our recent history

The information

revolution has

permeated the

judiciary. Our

people no

longer accept

judicial doctrines

they do not

understand.

Neither do they

blindly defer to

judgments that

do not explain

their rationale.

For its part,

media has

persistently

knocked on the

ramparts of the

judicial

fortifications

and climbed the

steep gorges of

Mount Olympus.

■■■■■

The Supreme Court’s Rolein Fostering Social JusticeThe Supreme Court has played a direct rolein fostering social justice by opening thejustice system to indigents through thesemeasures:a. exempting them from the payment of

docket and other fees and transcriptsof stenographic notes;29

b. providing protection to and enforce-ment of the constitutional rights of theaccused;30

c. granting free legal counsel toindigents;31 and

d. requiring lawyers to provide free repre-sentation to poor litigants32

In addition, pro bono legal services areprovided by several non-governmentalgroups, like (a) the Integrated Bar of the Phil-ippines, to which the Supreme Court givesan annual grant to fund its Free Legal AidProgram; and (b) the Free Legal AssistanceGroup (FLAG), which focuses on public,rather than private, issues.To attend to Muslim Filipinos, the SupremeCourt had authorized the organization ofthe Shari’ah Appellate Court,33 which wasestablished by Rep. Act No. 6734, the Or-ganic Act for the Autonomous Region inMuslim Mindanao. Of late, the establish-ment of a Shari’ah court in Metro Manila isbeing considered to serve the growing Mus-lim population.

In a long line of decisions, the SupremeCourt has been unabashedly pro-poor, pro-labor and pro-human rights.

In Ang Bagong Bayani-OFW Labor Partyv. Commission on Elections,34 the SupremeCourt held that the Filipino-style party-listsystem is reserved for the poor and themarginalized. In the decision that I had thehonor to write, the Court observed:

It is ironic…that the marginalized and underrep-resented in our midst are the majority who wal-low in poverty, destitution and infirmity. It was forthem that the party-list system was enacted—togive them not only genuine hope, but genuinepower; to give them the opportunity to be electedand to represent the specific concerns of theirconstituencies; and simply to give them a directvoice in Congress and in the larger affairs of theState. In its noblest sense, the party-list systemtruly empowers the masses and ushers a newhope for genuine change. Verily, it invites those


enthused the Court to strengthen the pro-tection of our people’s fundamental rights.It has been uncompromising in (a) penaliz-ing judges who failed to inform uneducatedaccused persons of their rights to counsel,45

(b) annulling lower court judgments inwhich the judge failed to conduct a “search-ing inquiry” whenever the accused hadwaived their right to be heard and pleadguilty to the charge against them,46 (c) void-ing judgments that do not conform with theconstitutional standards as to form and sub-stance47 and (d) extending the protectionof the Universal Declaration of HumanRights to everyone, including aliens.48

Restoration of the Death PenaltyNotwithstanding the restoration of the

death penalty,49 which the Court declared tobe constitutional50—despite my unyieldingpersonal opinion that it is not51—the Courthas been strict in reviewing the death sen-tences imposed by lower courts. As a result,less than one third of such judgments havebeen affirmed.52 Recently in People v. Mateo,53

the Supreme Court has held it “wise and com-pelling” to have the Court of Appeals reviewall death and life sentences before they areelevated to the Supreme Court.

Consistent with Mateo, the Courtamended certain portions54 of the RevisedRules of Criminal Procedure to simplify theappeal of capital offenses by requiring anotice of appeal to the Court of Appeals.

Since I oppose the death penalty, I per-sonally welcomed the Mateo ruling. It givesdeath convicts an intermediate layer of re-view to ensure an error-free judgment. Deathconvicts must be given the same opportu-nity for multiple review as those convictedof lesser crimes.

Because of the Supreme Court’s manydecisions favoring the poor, the oppressedand the disadvantaged, it has oftentimesbeen criticized. Guilty parties are some-times acquitted because of the stringentrequirements of evidence to convict—proofbeyond reasonable doubt—and because ofthe inadmissibility in Philippine courts ofillegally obtained evidence. I remember thelament of a foreign diplomat who wryly com-mented that in his country—unlike inours—no guilty person, whether rich orpoor, had ever been acquitted on a meretechnicality of the law.

Also because of our labor laws, manybusinessmen complain that they are ham-

pered in disciplining erring employees whocould harass them through neverendingstrikes, pickets, media attacks, or com-plaints to the National Labor Relations Com-mission.

Despite these occasional laments, ourjudiciary has steadfastly maintained its so-cial justice orientation, because our Con-stitution and laws require it, and becausean opposite policy would alienate themarginalized. If denied access to the demo-cratic institutions of justice, they may betempted to take the law into their ownhands.

ConclusionTo sum up the balancing role of the ju-

diciary in our government, may I quote myrecent book, Leveling the Playing Field:55

The Supreme Court safeguards not onlyfood but also freedom; not only jobs butalso justice; not only indulgences but alsointegrity; not only development but also de-mocracy; not only prosperity but also peace.

Indeed, there can be no prosperity orprogress without affording justice andpeace to all, especially to the underprivi-leged and the disadvantaged.

Endnotes1 CONST. art. VIII, sec. 1. Judicial power includes the duty of the

courts of justice to settle actual controversies involving rightswhich are legally demandable and enforceable, and to deter-mine whether or not there has been a grave abuse of discre-tion amounting to lack or excess of jurisdiction on the part ofany branch or instrumentality of the government.

2 The Court nullified Rep. Act No. 8180 (1996), “DownstreamOil Industry Deregulation Act of 1996,” the first oil deregula-tion law, because it violated the Constitution. Specifically, itfound that three provisions of the law obstructed the entry ofnew oil companies into the Philippines, thereby perpetuat-ing a monopoly of the so-called Big Three Oil companies—Petron, Shell and Caltex. Tatad v. Secretary of Energy, 346Phil. 321 (1997).

The Court voided sec. 26 and sec. 31 of Rep. Act No. 6975(1990), “Local Government Act of 1990,” which empoweredthe Commission on Appointments to confirm the appoint-ments of public officials whose appointments were not re-quired by the Constitution to be confirmed. Manalo v. Sistoza,371 PHIL. 165 (1999).

Several portions of Rep. Act No. 9189 (2003), “The Over-seas Absentee Voting Act of 2003,” were declared unconstitu-tional for being repugnant to sec. 1, Art. IX-A of the Constitu-tion, mandating the independence of constitutional commis-sions; such as the Commission on Elections. Macalintal v.Comelec, G.R. No. 157013, 10 July 2003, 405 SCRA 614.

Stressing that the determination of just compensation wasa judicial function, the Court voided Pres. Dec. No. 1533, whicheliminated the Court’s discretion to appoint commissioners,pursuant to the then Rule 67 of the Rules of Court. The provi-sions of Pres. Dec. Nos. 76, 464 and 794 regarding executivedetermination of just compensation were also nullified. Ex-port Processing Zone Authority v. Dulay, G.R. No. L-59603, 29April 1987, 149 SCRA 305.

3 Exec. Order No. 284 (1987), which allowed government offi-cials to hold multiple positions in government was declared

Our judiciary has

steadfastly

maintained its

social justice

orientation,

because our

Constitution and

laws require it,

and because an

opposite policy

would alienate

the margin-

alized. If denied

access to the

democratic

institutions of

justice, they may

be tempted to

take the law

into their own

hands.

■■■■■


unconstitutional for being contrary to sec. 13, art. VII of the Constitution. CivilLiberties Union v. Executive Secretary, G.R. No. 83896, 22 Feb. 1991, 194 SCRA317.

Adm. Order No. 308, which established a “National Computerized Identifi-cation Reference System” or national ID system, was declared void becauseit (a) involved a subject that was not appropriate to be covered by a mereadministrative order, but by a law enacted by Congress; and (b) placed theright to privacy in clear and present danger. Ople v. Torres, G.R. No. 127685, 23July 1998, 293 SCRA 141.

The Court struck down COMELEC Resolution No. 2347, which prohibited theuse of campaign decals and stickers on privately owned cars, because therestriction was so broad that it encompassed even the citizen’s private prop-erty; no substantial governmental interest justified the restriction. Adiong v.Commission on Elections, G.R. No 103956, 31 March 1992, 207 SCRA 712.

Dept. Order No. 119, creating the Marawi Sub-District, Engineering Officewhich had jurisdiction over infrastructure projects within Marawi City andLanao del Sur, was declared void for being violative of the provisions of E.O.No. 426. Disomangcop v. Secretary of the Department of Public Works andHighways (DPWH), GR No. 149848, 25 Nov. 2004.

4 Some recently voided contracts include the following:The AMARI Contract. The Court ruled that the Joint Venture Agreement be-

tween the Public Estates Authority (PEA) and the Amari Coastal Bay and Dev-elopment Corporation for the reclamation of certain portions of Manila Bayviolated the constitutional ban against the sale of reclaimed foreshore landsto and the reclamation of still submerged foreshore lands by a private corpo-ration. Chavez v. Public Estates Authority, 433 PHIL. 506 (2002); G.R. No. 133250,6 May 2003, 403 SCRA 1; and G.R. No. 133250, 11 Nov. 2003, 415 SCRA 403.

The PIATCO Contract. It was held that the “Build-Operate-and-Transfer” Con-tract for the construction and operation of Terminal III of the Ninoy AquinoInternational Airport (a) violated the anti-monopoly provisions of the Consti-tution because it gave the Philippine International Air Terminals Company,Inc. (PIATCO) the exclusive right to operate a commercial passenger termi-nal within the island of Luzon; and (b) transgressed the fair competition es-sence of the law in granting PIATCO substantially more benefits than thoseallowed by the bidding rules. Agan v. PIATCO, G.R. No. 155001, 5 May 2003, 402SCRA 612 and Jan. 21, 2004.

The MEGA PACIFIC Contract. In setting aside the contract for the supply ofautomated counting machines for the elections, the Court held, among others,that it had been awarded in contravention of the bidding rules laid down by theawarding agency itself, the Commission on Elections. Information TechnologyFoundation v. COMELEC, G.R. No. 159139, 13 Jan. 2004, 419 SCRA 317.

The SAGE Contract. The contract granting a private company, the Sports andGames and Entertainment Corporation (SAGE), authority to operate on-lineInternet gambling was voided because the charter of the government-ownedPhilippine Amusement and Gaming Corporation (PAGCOR) prohibited it fromdelegating its franchise to other entities. Jaworski v. Pagcor, G.R. No. 144463,14 Jan. 2004, 419 SCRA 317.

5 The Constitution provides as follows:CONST. art. II, sec. 28. Subject to reasonable conditions prescribed by law, the

State adopts and implements a policy of full public disclosure of all its trans-actions involving public interest.

CONST. art. III, sec. 7. The right of the people to information on matters ofpublic concern shall be recognized. Access to official records, and to docu-ments, and papers pertaining to official acts, transactions, or decisions, as wellas to government research data used as basis for policy development, shall beafforded the citizen, subject to such limitations as may be provided by law.

CONST. art. XI, sec. 1. Public office is a public trust. Public officers and em-ployees must at all times be accountable to the people, serve them with utmostresponsibility, integrity, loyalty, and efficiency, act with patriotism and jus-tice, and lead modest lives.

6 Rep. Act No. 6713 (1989), “Code of Conduct and Ethical Standards for PublicOfficials and Employees.”

7 CANONS OF JUDICIAL ETHICS, Canon 30. It is not necessary to the proper perfor-mance of judicial duty that judges live in retirement or seclusion; it is desir-able that, so far as the reasonable attention to the completion of their work willpermit, they continue to mingle in social intercourse, and that they should notdiscontinue their interest in or appearance at meetings of members of the bar.

8 A. M. No. 03-05-01-SC (1 June 2004). The Code is based on the universal decla-ration of standards for ethical conduct embodied in the Bangalore Draft asrevised during the Round Table Conference of Chief Justices at The Hague. Itstresses independence (Canon 1), impartiality (Canon 2), integrity (Canon 3),propriety (Canon 4), equality (Canon 5), and competence and diligence (Canon6). A Code of Conduct for Court Personnel (AM No. 03-06-13-SC) was also insti-tuted effective June 1, 2004.

9 PANGANIBAN, TRANSPARENCY, UNANIMITY & DIVERSITY 57 (2000).

10 CONST. art II, sec. 2. The Philippines renounces war as an instrument of nationalpolicy, adopts the generally accepted principles of international law as part

of the law of the land and adheres to the policy of peace, equality, justice,freedom, cooperation, and amity with all nations.

11 CONST. art II, sec. 9. The State shall promote a just and dynamic social orderthat will ensure the prosperity and independence of the nation and free thepeople from poverty through policies that provide adequate social services,promote full employment, a rising standard of living, and an improved qualityof life for all.

CONST. art. II, sec. 10. The State shall promote social justice in all phases ofnational development.

12 CONST. art. II, sec. 11. The State values the dignity of every human person andguarantees full respect for human rights.

13 CONST. art. II, sec. 14. The State recognizes the role of women in nation-build-ing, and shall ensure the fundamental equality before the law of women andmen.

14 The 1987 Constitution is replete with state policies favoring labor. Theseinclude: CONST. art. II, sec. 9. supra; CONST. art. II, sec. 10. supra; and CONST. art.II, sec. 18. The State affirms labor as a primary social economic force. It shallprotect the rights of workers and promote their welfare.

Sec. 3 of art. XIII (Social Justice) of the Constitution likewise provides that“The State shall afford full protection to labor, local and overseas, organizedand unorganized, and promote full employment and equality of opportunitiesfor all.

“It shall guarantee the rights of all workers to self-organization, collectivebargaining and negotiations, and peaceful concerted activities, including theright to strike in accordance with law. They shall be entitled to security oftenure, humane conditions of work, and a living wage. They shall also partici-pate in policy and decision-making processes affecting their rights and ben-efits as may be provided by law.

“The State shall promote the principle of shared responsibility betweenworkers and employers and the preferential use of voluntary modes of set-tling disputes, including conciliation, and shall enforce their mutual compli-ance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers, rec-ognizing the right of labor to its just share in the fruits of production and theright of enterprises to reasonable returns on investments, and to expansionand growth.”

15 CONST. art. II, sec. 22. The State recognizes and promotes the rights of indig-enous cultural communities within the framework of national unity and dev-elopment.

16 CONST. art. III, sec. 14. (1) No person shall be held to answer for a criminaloffense without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed innocentuntil the contrary is proved, and shall enjoy the right to be heard by himselfand counsel, to be informed of the nature and cause of the accusation againsthim, to have a speedy, impartial, and public trial, to meet the witnesses face toface, and to have compulsory process to secure the attendance of witnessesand the production of evidence in his behalf. However, after arraignment, trialmay proceed notwithstanding the absence of the accused provided that he hasbeen duly notified and his failure to appear is unjustifiable.

17 CONST. art. III, sec. 11.

18 CONST. art. III, sec. 12. (1) Any person under investigation for the commission ofan offense shall have the right to be informed of his right to remain silent andto have competent and independent counsel preferably of his own choice. If theperson cannot afford the services of counsel, he must be provided with one.These rights cannot be waived except in writing and in the presence of counsel..

(2) No torture, force, violence, threat, intimidation, or any other meanswhich vitiate the free will shall be used against him. Secret detention places,solitary, incommunicado, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17hereof shall be inadmissible in evidence against him. ...

19 CONST. art. II, sec. 14, supra, and CONST. art. III, sec. 16. All persons shall have theright to a speedy disposition of their cases before all judicial, quasi-judicial,or administrative bodies.

20 CONST. art. XIII, sec. 1. The Congress shall give highest priority to the enact-ment of measures that protect and enhance the right of all the people to humandignity, reduce social, economic, and political inequalities, and remove cul-tural inequities by equitably diffusing wealth and political power for the com-mon good.

To this end, the State shall regulate the acquisition, ownership, use and dis-position of property and its increments.

Sec. 2. The promotion of social justice shall include the commitment to cre-ate economic opportunities based on freedom of initiative and self-reliance.

Sec. 3. supra.Sec. 4. The State shall, by law, undertake an agrarian reform program


founded on the right of farmers and regular farmworkers, who are landless, toown directly or collectively the lands they till or, in the case of otherfarmworkers, to receive a just share of the fruits thereof ...

Sec. 9. The State shall, by law, and for the common good, undertake, in coop-eration with the public sector, a continuing program of urban land reform andhousing which will make available at affordable cost decent housing and basicservices to underprivileged and homeless citizens in urban centers and re-settlement areas. It shall also promote adequate employment opportunities tosuch citizens. In the implementation of such program the State shall respectthe rights of small property owners.

Sec. 10. Urban or rural poor dwellers shall not be evicted nor their dwellingsdemolished, except in accordance with law and in a just and humane manner.No resettlement of urban and rural dwellers shall be undertaken without ad-equate consultation with them and the communities where they are to be re-located.

Sec. 12. The State shall establish and maintain an effective food and drugregulatory system and undertake appropriate health manpower developmentand research, responsive to the country’s health needs and problems. ...

Sec. 14. The State shall protect working women by providing safe and health-ful working conditions, taking into account their maternal functions, and suchfacilities and opportunities that will enhance their welfare and enable themto realize their full potential in the service of the nation. ...

Sec. 17. (1) There is hereby created an independent office called Commis-sion on Human Rights. ...

Sec. 18. The Commission on Human Rights shall have the following powersand functions: ...

(3) Provide appropriate legal measures for the protection of human rightsof all persons within the Philippines, as well as Filipinos residing abroad, andprovide for preventive measures and legal aid services to the underprivi-leged whose human rights have been violated or need protection; ...

21 Rep. Act No. 7438 (1992), “An Act defining certain rights of person arrested,detained or under custodial investigation as well as the duties of the arresting,detaining and investigating officers, and providing penalties for violationsthereof.”

22 Rep. Act No. 9262 (2004), “Anti-Violence Against Women and Their ChildrenAct of 2004.”

23 Rep. Act No. 7610 (1992), “Special Protection of Children against Child Abuse,Exploitation and Discrimination Act.” See also, Rep. Act No. 8353 (1997), “Anti-Rape Law of 1997”; Rep. Act. No. 9231 (2003) “An Act Providing for the Elimi-nation of the Worst Forms of Child Labor and Affording Stronger Protection forthe Working Child, amending for this purpose Republic Act No. 7610;” and Rep.Act No. 9208 (2003), “Anti-Trafficking in Persons Act of 2003.”

24 REV. PEN. CODE, Book II, Chap. One, Title II (Crimes Against Fundamental Lawsof the State), Arts. 124—133. Specifically, the crimes punished are arbitrarydetention; delay in the delivery of detained persons to the proper judicialauthorities; delaying release; expulsion; violation of domicile; malicious pro-curement of search warrants and abuse in the service of those legally ob-tained; searching domicile without witnesses; prohibition, interruption anddissolution of peaceful meetings; interruption of religious worship; and of-fending religious feelings. See also, Rep. Act No. 7438 (1992), supra, and Rep.Act No. 9262 (2004), supra.

25 Rep. Act No. 7160 (1991), “The Local Government Code” and Pres. Dec. 1508,“The Katarungan Pambarangay Law.”

26 Rep. Act No. 7835 (1994), “The Comprehensive and Integrated Shelter Financ-ing Act); Rep. Act No. 6846 (1990), “The Social Housing Support Fund Act;” andRep. Act No. 7279 (1992), “The Urban Development and Housing Act of 1992.”

27 Rep. Act No. 7607 (1992), “An Act Providing a Magna Carta for Small Farmers.”

28 Pres. Dec. 442, as amended (1974), “The Labor Code” and Rep. Act No. 8042(1995), “The Migrant Workers and Overseas Filipinos Act of 1995.”

29 RULES OF COURT, rule 3, sec. 21 and AM No. 04-2-04-SC.

30 RULES OF COURT, rules 112-127.

31 RULES OF COURT, rule 116, sec. 7, rule 122, sec. 13, and rule 124, sec. 2. The Courtalso appoints the Public Attorney’s Office to represent the poor in all relevantlitigations.

32 CODE OF PROFESSIONAL RESPONSIBILITY. Canon 2. A lawyer shall make his legalservices available in an efficient and convenient manner compatible with theindependence, integrity and effectiveness of the profession.

Rule 2.01 A lawyer shall not reject, except for valid reasons, the cause of thedefenseless or the oppressed.

Rule 2.02 In such cases, even if the lawyer does not accept a case, he shallnot refuse to render legal advice to the person concerned if only to the extentnecessary to safeguard the latter’s rights.

Canon 14 of the same Code states “A lawyer shall not refuse his services tothe needy.”

Rule 14.01 A lawyer shall not decline to represent a person solely on ac-count of the latter’s race, sex, creed or status of life, or because of his ownopinion regarding the guilt of said person.

Rule 14.02 A lawyer shall not decline, except for serious and sufficient cause,an appointment as counsel de oficio or as amicus curiae or a request from theIntegrated Bar of the Philippines or any of its chapters for rendition of freelegal aid.

Rule 14.03 A lawyer may not refuse to accept representation of an indigentclient unless:

(a) he is not in a position to carry out the work effectively or competently; or(b) he labors under a conflict of interest between him and the prospective

client, or between a present client and the prospective client.Rule 14.04 A lawyer who accepts the cause of a person unable to pay his pro-fessional fees shall observe the same standard of conduct governing his rela-tions with paying clients.”

33 AM No. 99-4-06-SC, June 8, 1999.

34 412 PHIL. 308 (2001).

35 70 PHIL. 726 (1940). The case laid down the definition of “social justice,” whichis immortalized in countless decisions. Said the Court:

Social justice is “neither communism, nor despotism, nor atomism, nor an-archy, but the humanization of laws and the equalization of social and economicforces by the State so that justice in its rational and objectively secular con-ception may at least be approximated. Social justice means the promotion ofthe welfare of all the people, the adoption by the Government of measurescalculated to insure economic stability of all the competent elements of soci-ety, through the maintenance of a proper economic and social equilibrium inthe interrelations of the members of the community, constitutionally, throughthe adoption of measures legally justifiable, or extra-constitutionally, throughthe exercise of powers underlying the existence of all governments on thetime-honored principle of salus populi est suprema lex. xxx”

36 In Chap. VIII of my book BATTLES IN THE SUPREME COURT (1998), I narrated myefforts to accord greater benefits to workers whose services had been termi-nated for cause but without due process.

37 Bolinao Security and Investigation Servince, Inc. v. Toston, GR No. 139135, 29Jan. 2004, 421 SCRA 406; Mendoza v. NLRC, G.R. No. 131405, 20 July 1999, 310SCRA 846; Pascua v. NLRC, 351 PHIL. 48 (1998); and Pacific Maritime Services,Inc. v. Ranay, 341 PHIL. 716 (1997).

38 Paguio Transport Corporation v. NLRC, 356 PHIL. 158 (1998); Mabuhay Dev-elopment Industries v. NLRC, 351 PHIL. 227 (1998); Magcalas v. NLRC, 336 PHIL.433 (1997); and AHS/Philippines, Inc. v. Court of Appeals, 327 PHIL. 129 (1996).

39 Tanjuan v. Philippine Postal Savings Bank, Inc., G.R. No. 155278, 16 Sept. 2003,411 SCRA 168; Philimare Shipping & Equipment Supply, Inc. v. NLRC, 378 PHIL.1131 (1999); Samar II Electric Cooperative Inc. v. NLRC, 337 PHIL. 24 (1997);Aurora Land Projects Corp. v. NLRC, 334 PHIL. 44 (1997); The New Valley TimesPress v. NLRC, G.R. No. 100482, 15 July 1992, 211 SCRA 509.

40 This rule was laid down by the Court en banc in Philippine Long DistanceTelephone Co. v. NLRC, G.R. No. L-80609, 23 Aug. 1988, 164 SCRA 671. See alsoGabuay v. Oversea Paper Supply, Inc., GR No. 148837, 13 Aug. 2004, 436 SCRA514; Philippine National Construction Corporation v. NLRC, 366 PHIL. 678 (1999);United South Dockhandlers, Inc. v. NLRC, 335 PHIL. 76 (1997); and Del Castillo,Jr. v. NLRC, G.R. No. 75413, 10 Aug. 1989, 176 SCRA 229.

41 Emco Plywood Corp. v. Abelgas, GR No. 148532, 14 April 2004, 427 SCRA 496;Anino v. NLRC, 352 PHIL. 1098 (1998); Alcosero v. NLRC, G.R. No. 116884, 26March 1998, 288 SCRA 129; Agoy v. NLRC, 322 PHIL. 636 (1996); Cariño v.ACCFA, 124 PHIL. 782 (1966).

42 Pasvil/Pascual Liner, Inc. Workers Union v. NLRC, 370 PHIL. 473 (1999); Na-tional Federation of Sugar Workers v. Ovejera, 199 PHIL. 537 (1982).

43 ABD Overseas Manpower Corporation v. NLRC, 350 PHIL. 92 (1998); PI Man-power Placements Inc. v. NLRC, 342 PHIL. 414 (1997); Zurbano Sr. v. NLRC, G.R.No. 103679, 17 Dec. 1993, 228 SCRA 556.

44 Neeland v. Villanueva Jr., AM No. P. 99-1316, 31 Aug. 2001, 364 SCRA 204.

45 Gamas v. Oco, AM No. MTJ-99-1231, 17 March 2004, 425 SCRA 588.

46 People v. Besonia, GR Nos. 151284-85, 5 Feb. 2004, 422 SCRA 210; People v.Bodoso, G.R. Nos. 149382-83, 5 March 2003, 398 SCRA 64; People v. Aranzado,G.R. Nos. 132442-44, 24 Sept. 2001, 365 SCRA 649; People v. Durango, 386 PHIL.202 (2000); People v. Nadera Jr., 381 PHIL. 484 (2000); People v. Abapo, 385PHIL. 1175 (2000); People v. Tizon, 375 PHIL. 1096 (1999); and People v. Bello,375 PHIL. 277 (1999). The Court stressed that the accused must be properly


accorded their fundamental right to be informed of the precise nature of theaccusation against them and of the consequences of pleading guilty thereto,which is an integral aspect of the due process clause under the Constitution.

47 Velarde v. Social Justice Society, GR No. 159357, 28 April 2004, 428 SCRA 283;People v. Ferrer, G.R. No. 148821, 18 July 2003, 406 SCRA 658; Yao v. Court ofAppeals, G.R. No. 132428, 24 Oct. 2000, 344 SCRA 202; People v. Dumaguing,G.R. No. 135516, 20 Sept. 2000, 340 SCRA 701; Madrid v. Court of Appeals, 388PHIL 366 (2000); People v. Bugarin, 339 PHIL. 570 (1997). CONST. art. VIII, sec.14 states that “[no] decision shall be rendered by any court without express-ing therein clearly and distinctly the facts and the law on which it is based.”

48 Domingo v. Scheer, GR 154745, 29 Jan. 2004, 421 SCRA 468.

49 Rep. Act No. 7659 (1993), “An act to impose the death penalty on certain hei-nous crimes, amending for that purpose the Revised Penal Code, as amended,other special penal laws, and for other purposes.”

50 People v. Echegaray 335 Phil. 343 (1997).

51 In my Dissenting Opinion in People v. Echegaray, I argued passionately thatbased on the age, language and socio-economic profiles of convicts then indeath row, Rep. Act No. 7659 had militated against the poor and the powerlessin society.

52 This has been consistently shown by court statistics as reported in several ofmy books. See Chap. 21, LEVELING THE PLAYING FIELD (2004); Chap. 14, THE BIO-AGE

DAWNS ON THE JUDICIARY (2003); Chap. 22, REFORMING THE JUDICIARY (2002), Chap.14, A CENTENARY OF JUSTICE (2001); Chap. 16, TRANSPARENCY, UNANIMITY AND DIVER-SITY (2000); Chap. 6, LEADERSHIP BY EXAMPLE (1999) and Chap. 4, BATTLES IN THE

SUPREME COURT (1998).

53 People v. Mateo, GR Nos. 147678-87, 24 July 7, 2004, 433 SCRA 640.

54 Sections 3(d), 3(d) and 10 of Rule 122 and Sections 12 and 13 of Rule 124, asfollows:

RULES OF COURT, rule 122, sec. 3(c), as amended, now reads: Sec. (c). Theappeal in cases where the penalty imposed by the Regional Trial court isreclusion perpetua, life imprisonment or where a lesser penalty is imposed foroffenses committed on the same occasion or which arose out of the sameoccurrence that gave rise to the more serious offense for which the penalty ofdeath, reclusion perpetua, or life imprisonment is imposed, shall be by noticeof appeal to the Court of Appeals in accordance with paragraph (a) of thisRule (emphasis supplied);

RULES OF COURT, rule 122, sec. 3(c), as amended, now reads: Sec. (c). Theappeal in cases where the penalty imposed by the Regional Trial court isreclusion perpetua, life imprisonment or where a lesser penalty is imposed foroffenses committed on the same occasion or which arose out of the sameoccurrence that gave rise to the more serious offense for which the penalty ofdeath, reclusion perpetua, or life imprisonment is imposed, shall be by noticeof appeal to the Court of Appeals in accordance with paragraph (a) of thisRule (emphasis supplied);

RULES OF COURT, rule 122, sec. 3(d), as amended, now reads: Sec. 3(d). Nonotice of appeal is necessary where the Regional Trial Court imposed thedeath penalty. The Court of Appeals shall automatically review the judgmentas provided in Section 10 of this Rule;

RULES OF COURT, rule 122, sec. 3(d), as amended, now reads: Sec. 3(d). Nonotice of appeal is necessary where the Regional Trial Court imposed thedeath penalty. The Court of Appeals shall automatically review the judgmentas provided in Section 10 of this Rule;

RULES OF COURT, rule 122, sec. 10, as amended, now reads: Sec. 10. Transmis-sion of records in case of death penalty. - In all cases where the death penaltyis imposed by the trial court, the records shall be forwarded for automaticreview and judgment within twenty days but not earlier than fifteen days fromthe promulgation of the judgment or notice of denial of a motion for new trialor reconsideration. The transcript shall also be forwarded within ten daysafter the filing thereof by the stenographic reporter;

RULES OF COURT, rule 122, sec. 10, as amended, now reads: Sec. 10. Transmis-sion of records in case of death penalty. - In all cases where the death penaltyis imposed by the trial court, the records shall be forwarded for automaticreview and judgment within twenty days but not earlier than fifteen days fromthe promulgation of the judgment or notice of denial of a motion for new trialor reconsideration. The transcript shall also be forwarded within ten daysafter the filing thereof by the stenographic reporter;

RULES OF COURT, rule 124, sec. 12 reads: Sec. 12. Power to receive evidence.—The Court of Appeals shall have the power to try cases and conduct hearings,receive evidence and perform all acts necessary to resolve factual issuesraised in cases falling within its original and appellate jurisdiction, includingthe power to grant and conduct new trials or further proceedings. Trials orhearings in the Court of Appeals must be continuous and must be completedwithin three months, unless extended by the Chief Justice;

RULES OF COURT, rule 124, sec. 13 provides: Sec. 13. Certification or appeal ofcase to the Supreme Court.—(a) Whenever the Court of Appeals finds that thepenalty of death should be imposed, the court shall render judgment but re-frain from making an entry of judgment and forthwith certify the case andelevate its entire record to the Supreme Court for review; (b) Where thejudgment also imposed a lesser penalty for offenses committed on the sameoccasion or which arose out of the same occurrence that gave rise to the moresevere offense for which the penalty of death is imposed and the accusedappeals, the appeals shall be included in the case certified for review to theSupreme Court; (c) In cases where the Court of Appeals imposed reclusionperpetua, life imprisonment or a lesser penalty, it shall render and enter judg-ment imposing such penalty, it shall render and enter judgment imposing suchpenalty. The judgment may be appealed to the Supreme Court by notice ofappeal filed with the Court of Appeals;

RULES OF COURT, rule 124, sec. 13 provides: Sec. 13. Certification or appealof case to the Supreme Court.—(a) Whenever the Court of Appeals finds thatthe penalty of death should be imposed, the court shall render judgment butrefrain from making an entry of judgment and forthwith certify the case andelevate its entire record to the Supreme Court for review; (b) Where thejudgment also imposed a lesser penalty for offenses committed on the sameoccasion or which arose out of the same occurrence that gave rise to the moresevere offense for which the penalty of death is imposed and the accusedappeals, the appeals shall be included in the case certified for review to theSupreme Court; (c) In cases where the Court of Appeals imposed reclusionperpetua, life imprisonment or a lesser penalty, it shall render and enter judg-ment imposing such penalty, it shall render and enter judgment imposing suchpenalty. The judgment may be appealed to the Supreme Court by notice ofappeal filed with the Court of Appeals.

55 PANGANIBAN, supra note 36, at 59.


Philippine ActionProgram for JudicialReformEVELYN DUMDUMProgram Director, Action Program forJudicial Reform (APJR)

The Philippine judiciary faces many ob-stacles to its efficient performance. TheAction Program for Judicial Reform hastaken concrete steps to establish a strongfoundation for its long-term reform and dev-elopment.

Structure of the Philippine JudiciaryUnder the Philippine Constitution, the ju-diciary is the third branch of government.The Philippine court system has four lev-els: The first level is composed of metropoli-tan and municipal trial courts. The secondlevel is composed of regional trial courts,which have general original jurisdiction aswell as appellate jurisdiction over the lowercourts. The court of appeals has jurisdic-tion to review cases from both tiers of lowercourts. The Supreme Court is the highestcourt in the country.

The municipal and regional trial courtsinclude 950 regional trial courts, 1,124 mu-nicipal level courts, 51 circuit courts, andfive Shari’a (Islamic law) district courts. TheCourt of Appeals currently has sixty-threeassociate justices and one presiding justice.

The Philippine Supreme Court is com-posed of fifteen justices; a chief justice andfourteen associate justices. They decidecases en banc, with five justices presidingsimultaneously. The Supreme Court exer-cises adjudicatory, disciplinary, and rule-making powers. While its chief function isto adjudicate civil and criminal actions andspecial proceedings, it also has administra-tive supervision over all courts and person-nel, including the power to discipline law-yers for violations of the Code of Profes-sional Responsibility. The Supreme Courtalso has the power to promulgate rules con-cerning the protection and enforcement ofconstitutional rights, pleading, practice,and procedure in all courts, admission tothe practice of law, the Integrated Bar, andlegal assistance to the underprivileged.

Challenges Facing the Philippine JudiciaryThe Philippine judiciary suffers from twooverriding problems: court congestion andlimited financial resources.

Case congestion and delay have alwaysbeen and continue to be a matter of greatimport for the court, because the degree ofdelay in disposing of cases reflects the effi-ciency or inefficiency of the administrationof justice. As of 31 July 2004, an astounding815,431 cases were pending at all levels ofthe judiciary. The regional trial courts, withapproximately 343,875 cases pending be-fore them, accounted for the largest portionof these pending cases.

The limited financial resources avail-able to the judiciary prevent it from open-ing new courts and hiring competent andhighly qualified individuals for the bench.Even the courts that have been providedfor by Congress have not all been estab-lished due to lack of funding. Whereas Con-gress provided for 2,153 first- and second-level courts, only 2,064 have been organized.As of September 2004, nearly 33 percent ofthe total judicial positions were vacant. Allbut one of these vacancies are in the first-and secondlevel courts. There are simplytoo few judges. There are 18 justices orjudges for every 1 million Filipinos. In Aus-tralia, there are 41 judges per million, in theUK there are 51, in Canada there are 75, andin the United States there are 107 judges forevery million citizens.

Not only is the Philippine Judiciary un-der-funded, but it receives proportionatelymuch less government funding than theother branches of government. For the lastsix years, the Philippine Judiciary’s share inthe national government budget has beencontinually declining. In 2000, the judiciarybudget accounted for just over 1 percent ofthe total national budget, and in 2005, it ac-counted for only 0.88 percent. For the pe-riod 1998–2003, the national governmenthas spent an average of 222,000 pesos peryear for each employee of the judiciary. Dur-ing this time, it spent 332,520 pesos per em-ployee of the executive branch, approxi-mately 150 percent of the amount spent peremployee in the judiciary. In the sharpestcontrast, the government spent 641,000 pe-sos per employee of the legislative branch,almost three times the spending per em-ployee for the judiciary. The discrepancyalso permeates the budgetary support for

815,431cases are pendingat all levels of thejudiciary in thePhilippines, as of 31July 2004.

0.88%The portion of thenational budgetallocated to thejudiciary.

222,000Pesos are spent peryear for eachemployee of thejudiciary, asopposed to theP332,520 spent peremployee per yearin the executivebranch, and theP641,000 spent peremployee in thelegislative branch.


maintenance and operating expenses. Thebudgets of both the executive and legisla-tive branches of the government havegrown much faster than that of the judiciaryover the last five years.

Beside these two pervasive problems,several other problems must be addressedin order to maximize judicial efficiency: (a)outdated court technologies and facilities;(b) lack of human resource development,particularly for the non-judicial personnel;(c) perceived corruption in the judiciary,which brings into question its integrity andquality of decisions; (d) perceived limitedaccess to justice by the poor and margin-alized sectors of society; and (e) institu-tional deficiencies which are best charac-terized by the highly centralized operationof administrative and financial transactionsin the Supreme Court.

Action Program for Judicial ReformThe Action Program for Judicial Reform(APJR) has adopted various strategies andidentified specific programs, projects, andactivities to address the challenges facedby the Philippine judiciary and to improvedelivery of judicial services. The APJR isfounded on the vision and mission es-poused by Chief Justice Hilario G. Davide Jr.This a vision for a judiciary that is indepen-dent, effective, efficient, and worthy of pub-lic trust and confidence; and a legal profes-sion that provides quality, ethical, acces-sible, and cost-effective legal service to ourpeople, and is willing and able to answerthe call to public service. The program ad-dresses six areas: (1) Judicial Systems andProcedure; (2) Institutions Development; (3)Human Resource Development; (4) Institu-tional Integrity Development; (5) Access toJustice by the Poor; and (6) Reform SupportSystems.

The APJR builds on previous reform ef-forts by the Supreme Court, including thetechnical assistance on justice and dev-elopment programs funded by the UnitedNations Development Fund (UNDF), whichproduced the blueprint of action for the ju-diciary, as described above. Diagnostic stud-ies, funded by the World Bank, provided thedata which formed the basis for the dev-elopment of specific reform programs. TheAPJR is the product of extensive consulta-tions over the last years with stakeholders,not just within the judicial sector, but also

with representatives from the legal commu-nity, civil society, academia, private sector,and the media.

The APJR seeks to achieve the follow-ing goals:a. impartiality, access to, and speed of ju-

dicial systems;b. judicial autonomy and self-governance;c. streamlined institutional structure and

operations;d. decentralization;e. information systems-based operations,

planning, performance, managementand decision-making;

f. competitive and equitable remunera-tion;

g. continuing capability improvement;h. transparency and accountability in ap-

pointments to the Bench; andi. consensus-building and collaboration

with civil society.

Factors Influencing the Success of ReformsThe success or failure of a reform programrests on the foundation on which it is built.Reform programs must begin with a com-prehensive diagnosis that sets the param-eters for effective management of program.In the case of the Philippine Supreme Court,it undertook a comprehensive review of thepresent state of the Philippine judicial sys-tem with the help of judiciary officials andexternal experts. They assessed the judici-ary’s institutional capacity to effect and ab-sorb change, and analyzed its strengths,weaknesses, opportunities, and challengesto reforms. The diagnostic studies under-taken by the Supreme Court included (a) anassessment of past judicial reforms; (b) areview of the criminal justice system; (c) areview of the alternative dispute resolutionmechanisms; and (d) an assessment of theimpact of judicial education and directionsfor change and development. These diag-nostic studies revealed the nature, causes,and impact of strengths and weaknesses onthe judicial system. They also establishedthe foundation for the development of con-crete projects and activities to realize thejudiciary’s vision.

A successful reform program must in-volve participation by the stakeholders.From the very beginning, Chief JusticeDavide, whose leadership and political willlargely made the reform program possible,insisted that the success of the program de-

The Action

Program for

Judicial Reform

(APJR) builds on

previous reform

efforts by the

Supreme Court,

including the

technical assis-

tance on justice

and develop-

ment programs

funded by the

United Nations

Development

Fund (UNDF),

which produced

the blueprint of

action for the

judiciary.

■■■■■


pended on how the Court could manage,combine, and synchronize the efforts of thejudiciary and its stakeholders.

The success of judicial reforms dependspartly on the perception of the public andthe legal community. The Court conductedperception surveys that gauged how judges,court personnel, and external stakeholdersviewed the gravity of the problems with thejudiciary. These surveys included: (a) a sur-vey of private legal practitioners to moni-tor access to justice by the disadvantaged;(b) the 2003 assessment of the publicattorney’s office; (c) the national survey oninmates and institutional assessment; and(d) a survey on the state of the legal profes-sion and the state of the judiciary.

In order to make the most of technicalassistance and funding donations for judi-cial reforms, the reform program must effec-tively coordinate with and manage contri-butions from donors. Many donor institu-tions assist the Supreme Court in imple-menting its reform projects. These includethe Asian Development Bank, World Bank,United Nations Development Programme,Canadian International DevelopmentAgency, Australian Agency for International

Development, US Agency for InternationalDevelopment, and The Asia Foundation.

There must be a global perspective toimplementing reform programs. A compara-tive analysis of the successful reform pro-grams of other countries helped the Philip-pine Supreme Court develop its own pro-gram. The Court also avoided costly reformpitfalls by drawing lessons from relevantinternational experiences and practices.

The APJR articulates certain consider-ations that should guide program implemen-tation to best achieve the programs goals.The factors identified are as follows:a. Reforms must restore public trust and

confidence in the justice system;b. Reforms will require significant re-

sources, but will be implemented andpursued within the context of severenational government resource con-straints;

c. Judicial independence will be pursuedin a traditionally centralized environ-ment;

d. The judiciary must take the lead in pur-suing, synchronizing, and sustainingthe various reforms, several of whichwill require administrative cooperationwith other departments and sectors;

e. Reform implementation must be pro-grammed in accordance with the capac-ity for change by the judiciary and itsstakeholders;

f. The judiciary must ensure continuousdevelopment and the institutionaliza-tion of capacities in order to sustain thegains made by the reforms; and

g. Reforms will require top-level supportand commitment within a political en-vironment where achieving broad andcontinuing consensus require persis-tent efforts and where there is inad-equate appreciation of the role of thejustice system in socioeconomic dev-elopment.

The implementation of judicial reformsis expected to lead to a well-functioning ju-dicial system, which is efficient and fair, ac-cessible and transparent, and independentand autonomous. In turn, this is expectedto lead to a socioeconomic environmentthat is stable and predictable, which are thebasic requisites for both domestic and for-eign investors to invest in the Philippines.The comprehensive approach taken by the

“The success or failure of areform program rests on thefoundation on which it is built.Reform programs must beginwith a comprehensive diagnosisthat sets the parameters foreffective management ofprogram. In the case of thePhilippine Supreme Court, itundertook a comprehensivereview of the present state ofthe Philippine judicial systemwith the help of judiciary officialsand external experts. ”

Evelyn DumdumProgram Director,Action Program forJudicial Reform (APJR)

Evelyn Toledo-Dumdum is the program director of the Philippine Supreme Court’sAction Program for Judicial Reform. Previously, she was a consultant to theWorld Bank. Ms. Dumdum has two master’s degrees in management from theUniversity of the Philippines. She has two bachelor’s degrees (A.B. SocialScience and B.S. Foreign Service) both from the University of the Philippines.

Larry Ram

os


APJR and the support of many of our lead-ing justices form a solid foundation for sys-tematic reform of the judicial system in thePhilippines.

Challenges inImplementingAccess to JusticeReforms inBangladeshMOUDUD AHMEDMinister of Law, Justice and ParliamentaryAffairs, Bangladesh

There is a nexus between an effective and meaningful legalsystem and a country’s eco-nomic growth. One cannotspeak of good governance with-

out the rule of law, and one cannot speak ofthe rule of law without having an effectivelegal system. Bangladesh has seen many sig-nificant judicial reforms and has success-fully dealt with some of the challenges fac-ing those reforms. The backlog of cases hasbecome smaller and cases are being pro-cessed more quickly, but there is still muchwork to be done to improve the criminaljustice system and increase judicial inde-pendence and accountability.

Speedy Implementation of JusticeIn Bangladesh, there are about one millioncases pending for resolution. Of these,about 550,000 are criminal and 450,000 arecivil cases. Ninety percent of the total casesare pending in the subordinate courts whilethe remaining ten percent are pending be-fore the either the High Court or the Appel-late Division of the Supreme Court.

Formerly, criminals were not deterredby the possibility of punishment becauseinvestigations and trials were lengthy andnot certain to result in convictions. This per-ception no longer exists, due to newly in-troduced speedy trial courts for minor of-fenses, and speedy trial tribunals for major

offenses such as murder, rape, drugs, illegalarms, and explosives. In the last eighteenmonths, these tribunals have disposed of500 cases and 186 people were sentencedto death. The average length of time neededto dispose of a case has been reduced fromfive to seven years to five to seven months.This represents a fantastic success.

The success of the efforts to speed reso-lution of criminal cases was due to an ac-countability program and to the formationof special courts to systematically processspecific types of cases. The judicial account-ability program requires a judge to reportin writing to the Supreme Court every timehe does not dispose of a case within a timeframe provided. Similarly, the prosecutionand the investigating officers must answerto their superiors if they are unable to pre-pare a case to be tried before the court inkeeping with the schedule. The new crimi-nal courts for minor and major offenses donot handle any other cases. As opposed totraditional district level courts, in which ajudge tries all kinds of cases, these special-ized courts only try a particular type of caseso that they can systematize their processesfor greater efficiency. In addition, unlike thetypical lower courts that enjoy a one-monthvacation in December, these tribunals re-main open and continue to try casesthroughout the year.

Focus for Further ReformsDespite the progress the judiciary has madein processing the backlog of cases andspeeding up the litigation process for newcases, there are many reforms that still re-main to be implemented, including improv-ing prosecution for criminal trials and im-proving judicial independence and ac-countability.

IMPROVING CRIMINAL JUSTICE DELIVERYThe criminal justice system in Bangladeshrequires reform in four major areas: investi-gation, witness protection, prosecution,and trial. Criminal investigations should notbe the responsibility of the already overbur-dened police force, but should be allocatedto a separate, independent and profession-ally trained investigation department. Mem-bers of this department may come from thepolice force but would not be assigned rou-tine police work. These investigators wouldbe able to focus all their time on assembling

Lawyers in

Bangladesh

were originally

resistant to the

introduction of

alternative

dispute resolu-

tion (ADR)

mechanisms in

family courts;

however, after

months of work-

shops and

seminars, they

began to accept

the new

mechanisms.

■■■■■

Anam

ul Haque A

nam

After ADR wassuccessfullyintroducedin the family courts, itwas introduced in thecivil courts.


evidence and completely thorough investi-gations. Witness protection programs arecurrently inadequate and must be ex-panded so that investigators and prosecu-tors can process cases more efficiently. Thequality of prosecutors and trial judges mustalso be improved. In Bangladesh, the pros-ecutors are all politically appointed, so thatnew prosecutors are appointed every timethere is a change of government. Hence,there is no continuity in service. The pros-ecutors have neither the necessary skillsand training, nor the requisite accountabil-ity. A system in which prosecutors were per-manent public servants that were educated,well-trained, and accountable to the systemwould provide better prosecutorial servicesthan the current political-appointee system.Finally, trial judges would be better posi-tioned to provide justice if they were inde-pendent from political influence.

Currently, the executive branch has in-fluence magistrates exercising judicial func-tions.

JUDICIAL INDEPENDENCE AND ACCOUNTABILITYAlthough in Bangladesh magistrates exer-cising judicial functions currently belong

to the executive branch of government, thejudiciary is otherwise fully independentfrom executive control. To ensure the sepa-ration of the judiciary from the executive,control of these magistrates must be trans-ferred to the judiciary.

Independence of the courts does notmean, however, that the courts must answerto no one. Reform efforts must focus on pro-moting judicial accountability in order tocheck judicial independence. Article 102 ofthe Constitution gives the High Court thepower to interfere in actions of the otherbranches of government. The judges of theHigh Court are subject to disciplinary ac-tion taken by a Supreme Judicial Councilconsisting of the Chief Justice and the nexttwo senior judges. However, in the last 34years, only one judge has been removedfrom office. An effective accountabilitymechanism must be composed of membersoutside of the judiciary itself.

Challenges to Implementing ReformsThe judiciary is particularly difficult to re-form because it is one of the Bangladesh’smost conservative institutions. There willalways be a people who do not want changethat might compromise their vested inter-ests. Education of interested parties can of-ten ease transitions to new systems. Law-yers in Bangladesh were originally resistantto the introduction of alternative disputeresolution (ADR) mechanisms in familycourts, however after months of workshopsand seminars, they began to accept the newmechanisms. After successful introductionof ADR in the family courts, it was intro-duced in the civil courts. It is also impor-tant to build positive public opinion beforea law is introduced or amended. Consultingwith stakeholders including lawyers, judges,civil societies, and non-governmental orga-nizations involved with the justice systemcan be helpful for building widespread sup-port.

In implementing new laws and reforms,it is important to remain open to sugges-tions and feedback from the judiciary andthe legal community. For example, the CivilProcedure Code was amended to imposepenalties on litigants who unnecessarilydelayed cases by filing frivolous papers andpursuing empty allegations. Much of thetime it takes to resolve a case is spent oninterlocutory orders. The penalties were

“Despite the progress the judiciaryhas made in processing thebacklog of cases and speeding upthe litigation process for newcases, there are many reforms thatstill remain to be implemented,including improving prosecutionfor criminal trials and improvingjudicial independence andaccountability.”

Barrister Moudud Ahmed, M.P. is the Minister of Law, Justice and ParliamentaryAffairs of the Government of Bangladesh. He was elected a Member of theParliament five times (1979, 1986, 1988, 1991 and 2001). He has previouslyserved as Vice President from 1989-1990, and Prime Minister and Leader of theHouse from 1988-1989 in Bangladesh. As Minister, he has held the followingportfolios: Industries; Planning; Law, Justice and Parliamentary Affairs; SpecialAffairs; Energy, Water Resources, and Flood Control; Communication-Railways,Roads and Highways; and Post, Telegraph and Telephones. He was a Fellow atQueen Elizabeth House, Oxford University (1983); Harvard University Centerfor International Affairs, (1980-1981); Fairbank Asia Center (1988); and SouthAsian Institute, Heidelberg University (1976, 1980 and 1996). He has a B.A.(Hons.) and an M.A. from Dhaka University and is a Barrister-at-Law, Lincoln’sInn, England.

Moudud AhmedMinister of Law, Justiceand ParliamentaryAffairs, Bangladesh

Larry Ram

os

OnemillionThe number ofcases in Bangladeshthat are pending forresolution.

500The number ofcases have beendisposed of in thelast 18 months. Theaverage length oftime needed todispose of a casehas been reducedfrom five to sevenyears to five toseven months.


imposed to reduce interlocutory litigationand speed resolution of the primary suit. Apenalty of 100,000 taka was imposed on aparty found to have made false allegationsbased on falsifies documents. A penalty of50,000 taka was imposed on a party thatobtained an injunction on a baseless claim,in addition to the defendant’s right to suefor damages. Initially, critics of the new pen-alties maintained that they would frustratejustice. After the amendment was passed,the Ministry of Law held meetings and semi-nars with the district bar presidents, secre-taries, and Supreme Court association presi-dents. While the discussions resulted in areduction in the amounts of the penalties,the original principles were retained.

Legal reform always depends on the in-dividual judges and lawyers for effectiveimplementation. There must be support forthe reforms from within the system if reformsare to succeed. The leadership of every dis-trict judge who has to implement a particu-lar new law is important. System reformnever brings quick results. A stable govern-ment that provides continuity of gover-nance facilitates the process, and the longerthe reforms are allowed to entrench them-selves in the system, the more positive thenet effects will be. The legal reform programscurrently being implemented in Bangladeshaim to ensure access to justice: easy, inex-pensive, and speedy justice in the courts.

Challenges inImplementingAccess to JusticeReforms in PakistanHON. SHAFIUR RAHMANFormer Justice, Supreme Court of Pakistan

Law reform in Pakistan has been acontinuing process, which beganlong before the country’s indep-endence in 1947. The reform efforts can be divided into three

phases: the pre-independence period (pre-1947), and two post-independence periods,distinguished by the amount of funding that

was available for legal reforms. From 1947–1997 funding for legal reforms was scarce,but after 1997 period substantial funds forlegal reforms became available, culminatingultimately in the Access to Justice Programfunded by the Asian Development Bank.

Before Pakistan’s independence, theonly significant law reform effort was theestablishment of the Civil Justice Commit-tee, headed by Justice George ClauseRankin, in 1923. Despite the Committee’sreport and the limited reforms that followed,the judiciary remained inefficient becausethe reforms were unable to speed the pro-cessing of cases to alleviate congestion inthe courts. For the first fifty years after thenation’s independence, funding for the ju-diciary was severely limited resulting in aninadequate number of judges, courthouses,and other support facilities. Large-scale re-forms began only after 1997, when fundingstarted to become more available. Initially,the reforms focused on the commercial sec-tor, then they moved to the civil judiciary,before finally being consolidated in thecomprehensive Access to Justice Program(AJP) that affects nearly every aspect of thejudiciary.

Retention of the Positive Elementsfrom the Colonial SystemAlthough the statutes and systems thatwere established during colonial rule aregenerally discredited, there are some goodpractices that should be preserved in ourreform efforts. Part of the reform programshould be to implement those positive as-pects of the colonial statutes that have notpreviously been enforced. For example:• Inspections of the District Courts by High

Court judges. Despite the fact that exist-ing law provides for regular court in-spection, there are district courts thathave not been inspected for over tenyears. Although sporadic inspectionssometimes take place, they are no sub-stitute for regular inspections, which af-ford a High Court judge the opportunityto interact with the subordinate judi-ciary, the bar, the litigants, and the dis-trict bureaucracy.

• Inspections of the courts by the presidingofficer. The current court rules requirethat in the year in which the High Courtjudge does not inspect the courts, thehead of district judiciary, i.e., the dis-

Lawyers in Pakistanstand to benefit fromthe reforms under theAccess to JusticeProgram.

Large-scale

reforms began

only after 1997,

when funding

started to be-

come more

available. Ini-

tially, the re-

forms focused

on the commer-

cial sector, then

they moved to

the civil judi-

ciary, before

finally being

consolidated in

the comprehen-

sive Access to

Justice Program.

■■■■■

Muh

amm

ad B

ilal


trict and sessions judge, shall inspecteach of the courts in the district in asimilar fashion. In addition, the judgeof each court in the district is requiredto inspect his court once in a quarterand submit a report to his superior.

• Submission of statistical reports on courtperformance. The abstract order sheetof all civil and criminal cases pendingfor over one year must be submitted byeach court. Criminal cases that are pend-ing for over four months have to be re-ported to the next higher authority.These statistics must be collected ac-curately and reported in the prescribedform in time to facilitate preparation ofannual reports. These annual reportshad ceased to be published after 1973and were revived as part of the Accessto Justice Program.

Challenges to Successful Implementationof ReformsLaw reform involves more than simply pass-ing new laws. However, the Pakistani atti-tude is that laws take effect immediatelyupon their placement in the statute books.Pakistanis often believe that after the law ischanged on the books, nothing more mustbe done to ensure implementation, so thateven statutory rules and regulations are un-necessary. In addition, it is believed that the

harsher the law, the more effective it will bein achieving its objectives.

These notions are, of course, mistaken.New and reformed laws are not automati-cally implemented. There are several reasonsfor this. First, the financial implications ofnew laws are frequently not thoughtthrough at the time the laws are drafted, andprovisions are not made for the funds need-ed to implement the law. The department res-ponsible for administering the law has to inall likelihood make do with insufficient re-sources, so that without additional funding,new laws will simply be ignored. Also, inad-equate and poorly trained human resourcesprevent laws from being properly imple-mented. There is the lack of capacity to planand utilize funds for the most optimal value.There is no scheme at either the federal levelor at the provincial level to address the re-quirement of recruiting judges and staff andproviding adequate working conditions forthe subordinate judiciary. None of the courtshave any recruitment policy extending be-yond the next five to ten years.

Successful implementation of laws re-quires monitoring, evaluation, and perfor-mance review. However, no annual reportson the subject are published and no effort ismade to elicit public opinion on law reforms.

The success of law reforms depends onconsistency of vision within political lead-ership. However, neither federal nor provin-cial leadership has provided such a collec-tive vision. Disparate incentives and institu-tional goals cause the head of each govern-mental body to pursue his own designs andpriorities without coordinating with othergovernmental bodies. Furthermore, changesin office frequently mean changes in the vi-sion of the political leadership. Accordingly,there is little continuity or consistency inthe pursuit of reform programs and the pru-dent management of reform funding.

Nor has political leadership consis-tently supported reform efforts at all. Re-tired Chief Justice of Pakistan Ajmal Mian,in his book A Judge Speaks Out, noted hisexperience of political opposition to judi-cial reforms:

On the basis of more than twenty-one years of ex-perience as a member of the superior judiciary, Ican say without any fear of contradiction that noneof the governments in Pakistan during mytenure wanted an independent judiciary… I

“Certain measures can be takento ensure successful implemen-tation of law reform, includingproviding secure tenure forjudges, building capacity throughtraining, improving publicawareness, and improvinginternal accountabilitymeasures.”

Hon. Shafiur RahmanFormer Justice, SupremeCourt of Pakistan

Justice Shafiur Rahman served as Justice of the Supreme Court of Pakistan from1979-1994 and Justice of the High Court of West Pakistan/Punjab from 1969-1979. His career in the civil service and the judiciary, which spans over fivedecades, includes stints as deputy secretary of the Home Department and SocialWelfare Department of West Pakistan, registrar of West Pakistan's High Court,law secretary of West Pakistan, acting Wafaqui Mohtasib (federal ombudsman),member of the Pakistan Law Commission, and chairman of the Commission onCorporate Laws and Labor Laws of Pakistan. He has served as consultant to theAsia Foundation and the Asian Development Bank for technical assistance onlegal and judicial reforms and the Access to Justice Program in Pakistan.

Larry Ram

os


had asked the President and the Prime Minister torefer cases of judicial misconduct against the judgeswho did not enjoy a good reputation, but there wasno response. It is, therefore, imperative to conferon the Supreme Judicial Council the power to ini-tiate misconduct proceedings suo moto upon anapplication from an aggrieved party, provided theapplication is bona fide and is supported by reli-able material, so that the judges of the superiorcourts may become accountable.1

Interference from the military has alsoimpeded judicial reform efforts. For ex-ample, the military coerced resignationsfrom a judge of High Court and from the ChiefJustice of the same High Court, instead ofseeking the appropriate institutional ac-tions against them through the constitution-ally established Supreme Judicial Council.

Suggestions for Successful Implementationof ReformsNotwithstanding the serious issues facingthe judiciary in Pakistan, certain measurescan be taken to ensure successful imple-mentation of law reform, including provid-ing secure tenure for judges, building ca-pacity through training, improving publicawareness, and improving internal account-ability measures.

Judges, particularly of judges of supe-rior courts, should be granted secure ten-ure. If judges are confident that they willretain their jobs, they will be more willingto implement reforms even in the face ofopposition.

Capacity building is essential to sustain-able law reform. Training and technical as-sistance by highly qualified and experiencedprofessionals is required for (a) fund man-agement of the Law and Justice Commission;(b) curriculum and training of the FederalJudicial Academy; (c) operational efficiencyof the website set up by the Ministry of Law;(d) court management techniques; and (e)record keeping and automation.

In order to build public support for re-forms and public confidence in the judicialsystem, the performance of the judiciaryshould be periodically disclosed to the pub-lic. These performance reports will encour-age the judiciary’s accountability to soci-ety. If a petition for review has remained

pending, unattended, in the highest courtof the country for over 10 years, that factshould be disclosed to the public. Similarly,the judiciary should be placed under astatutory obligation to hold annual confer-ences and to publish periodic reports withregard to the accomplishments of and prob-lems facing the law reform agenda, as wellas the demands and working conditions ofthe judiciary. Dialogue among the membersof the judiciary as well as between the judi-ciary and the public is necessary for a coop-erative and efficient reform effort.

Finally, an effective internal grievanceredress system should be instituted as partof the governance structure of the country.An accountability mechanism must beimplemented both in the judicial sector andthe rest of the bureaucracy to supplementpublic awareness and provide for publicparticipation in the judicial reform process.

When these reforms are instituted, Pa-kistan will be much closer towards asmooth, well-functioning, effective and effi-cient judiciary.

Judicial Reform inIndonesiaHON. MARIANNA SUTADIVice Chief JusticeSupreme Court of Indonesia

The law enforcement system inIndonesia, from the police tothe prosecutor to the courts, isperceived to be unjust andthere is little public confidence

in the legal system. In order to promote jus-tice and public and investor confidence inthe legal system, further judicial reformsmust focus on strengthening judicial inde-pendence and accountability and improv-ing trial procedures.

Judicial independence is a pre-requisiteto the rule of law and a fundamental guar-antee of a fair trial. Judges must uphold andexemplify the principles of judicial indepen-dence in both their individual and institu-tional capacities. The Bangalore Principlesof Judicial Conduct1 provides that judicialindependence can be achieved by applyingthe following principles:1 AJMAL MIAN, A JUDGE SPEAKS OUT 347 (2004) (emphasis added).

The Supreme

Court and civil

society organi-

zations (CSOs)

have formulated

“blueprints” for

reform, which

are supported

by various

donors, which

are intended to

facilitate imple-

mentation of

the one-roof

system within

the judiciary.

■■■■■


• A judge shall exercise the judicial func-tion independently on the basis of thejudge’s assessment of the facts and inaccordance with a conscientious under-standing of the law, free of any extrane-ous influences, inducements, pressures,threats or interference, direct or indi-rect, from any quarter or for any reason;

• A judge shall be independent in rela-tion to society in general and in rela-tion to the particular parties to a dis-pute which the judge has to adjudicate;

• A judge shall not only be free from inap-propriate connections with, and influ-ence by, the executive and legislativebranches of government, but must alsoappear to a reasonable observer to befree therefrom;

• A judge shall make decisions indepen-dent from influences of his judicial col-leagues;

• A judge shall encourage and upholdsafeguards for the discharge of judicialduties in order to maintain and enhancethe institutional and operational inde-pendence of the judiciary;

• A judge shall exhibit and promote highstandards of judicial conduct in orderto reinforce public confidence in the ju-diciary, with the understanding thatpublic confidence is a fundamental goalof judicial independence.

Legislation Furthering Legal ReformLegislation has been passed since 1999 toaddress 1) judicial independence, 2) trialprocedures, and 3) corruption. In 1999, LawNo. 35 was passed to amend Law No. 14 of1970 on the Principal Provisions on Judi-cial Authority. This amendment establisheda “one roof” policy: resulting in the judiciarybeing removed from the control of the ex-ecutive branch and placed under the au-thority of the Supreme Court. Even thistransfer of authority, by itself, has been in-sufficient to restore public confidence inthe judiciary.

Legislation has also been passed to pro-mote access to justice by providing for im-proved trial procedures. Law No. 8 of 1981on the Law of Criminal Procedure (KUHAP)and Law No. 35 of 1999 replaced legislationfrom 1970 and provide that the trial processmust be conducted in a quick, simple, low-cost, open, honest, and impartial manner inall levels of trials.

Anti-corruption legislation has beenpassed as well. The Corruption EradicationCommission (KPK) proposed Law No. 30 in2002, which mandated the establishment ofthe Anti-Corruption Court. This body spe-cially designed to hear corruption caseshandled by the Anti-Corruption Commis-sion. The court has recently begun proceed-ings on alleged corruption in the procure-ment of military equipment. Other anti-cor-ruption programs that have been imple-mented include: (a) training in anti-corrup-tion techniques for the Anti-CorruptionCourt judges, prosecutors, and support staff;(b) the development of a recruitment sys-tem for Anti-Corruption Court ad-hocjudges; and (c) the preparation of a manualon the administration of the Anti-Corrup-tion Court.

In order to increase public and inves-tor confidence in the Indonesian legal sys-tem, judicial independence must be in-creased, trials must be made efficient andaccessible, and corruption must be miti-gated. The legislation passed in recent yearsis the first step, however. Further reform pro-grams have been formulated and are in theprocess of being implemented.

Implementation of ReformsThe Supreme Court and civil society orga-nizations (CSOs) have formulated “blue-prints” for reform, which are supported byvarious donors, which are intended to fa-cilitate implementation of the one-roof sys-tem within the judiciary. These reforms ad-dress personnel issues, case management,and judicial accountability. The SupremeCourt has established a secretariat and ajudicial reform team responsible for coor-dinating and monitoring the implementa-tion of the Supreme Court’s comprehensivereform agenda. A Donor Consultation Fo-rum acts to ensure that programs spon-sored by international and multi-lateral or-ganizations are coordinated with each otherand the Supreme Court reform agenda.

The Supreme Court agenda on court andjudicial personnel reforms addresses per-sonnel organization, functions, recruitment,promotion and rotation, and judicial super-vision, evaluation and discipline. The Asia

1 THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT (2002),available at www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf

20,000The number ofcases that are inthe backlog ofIndonesia’sSupreme Court.

80%The percentage ofbacklog that ismade up of civilcases.

Measures to reducethe backlog includeregulations on classactions and courtaffiliated alterna-tive disputeresolution (ADR)that will provideother channels ofadjudication toliticants to reducecrowding of thecourt dockets.


Foundation and the Danish Government aresupporting a program to develop a systemof recruitment, promotion, and reallocationof judges.

The reform agenda addresses measuresto promote access to justice by reducingthe Supreme Court’s backlog of 20,000 cases(80 percent of which are civil). These mea-sures include regulations on class actionsand court-affiliated alternative dispute reso-lution (ADR) that will provide other chan-nels of adjudication to litigants to reducecrowding of the court dockets. Measures toimprove the efficiency of the courts them-selves include funding and support infra-structure, case management, and informa-tion management of the Court. To this end,the Asia Foundation and Asian Dev-elopment Bank (ADB) are supporting theSupreme Court’s efforts to establish an in-formation management system for handlingcases and to establish a managerial systemfor legal cases as they travel through thecourts of first instance, appellate courts,and the Supreme Court.

The Supreme Court has strengthenedinternal and external oversight of individualjudges’ performance as well as institutionalperformance generally in order to improveaccountability and transparency. Partner-ship for Governance Reform in Indonesia issupporting the development of an externalcontrol system for improvement of the su-pervision and control of the Supreme Court,as the policy was adopted through Law No.22 of 2004.

Challenges to ReformThe reform programs have internal and ex-ternal support. The Chief Justice BagirManan has been effective in mobilizingstakeholders’ support for judiciary reformwithin the judiciary. The strong partnershipwith CSOs to define and implement the re-form agenda through the blueprints hasconsolidated support for reforms outsidethe judiciary.

Despite widespread support, the reformeffort faces many challenges. The inertia ofinstitutional culture, limited human re-sources, and the tsunami have all posedchallenges to the speedy implementationof judicial reforms. The culture of reformwithin the judiciary has not been internal-ized. An important aspect of implementingreforms is to expose the judiciary to reform-

ist ideas and initiatives by disseminatinginformation on all ongoing and planned re-form activities to members of the judiciary.Lack of human resources and inadequateinfrastructure limits the courts’ capacity toimplement the reform agenda. This con-straint can only be resolved through con-tinuing training for judges and other judi-cial staff tailored to meet the demands im-posed by the reforms. Finally, the tsunamidisaster on 26 December 2005 in Aceh hasfurther slowed judicial reform efforts. Now,in addition to the nationwide reform pro-grams, the judiciary must divert extra re-sources to Aceh, where the court systemmust be completely rebuilt. The SupremeCourt has taken initial steps towards ad-dressing this urgent problem, stretching thealready limited resources of the judicial sys-tem even thinner.

Reorganization and reformation of thejudicial infrastructure takes time. Theimplementation of the one-roof system,which was initiated in 1999, took five years.We cannot expect changes to happenquickly, and must persevere with the reformagenda even if we do not experience imme-diate results.

ConclusionThe pursuit of the goals set forth in the Su-preme Court’s blueprints is an essential firststep in achieving an independent, modern,ethical, transparent, and participative judi-cial framework. In implementing the blue-

“Despite widespread support, thereform effort faces many chal-lenges. The inertia of institutionalculture, limited human resources,and the tsunami have all posedchallenges to the speedy implem-entation of judicial reforms.”

Ms. Justice Marianna Sutadi is the Vice Chief Justice of the Supreme Court ofIndonesia. She began her 40-year career in the judiciary as a judge at theJakarta Special District Court in 1964. She was promoted to Assistant Justice ofthe Supreme Court in 1981, and served as High Court Judge at the Tanjungkarangand Jakarta High Courts. She was appointed as Vice Chief of the CentralKalimantan High Court in 1993, and of the Tanjungkarang High Court in 1994.She was appointed Justice of the Supreme Court in October 1995. Justice Sutadigraduated from the Faculty of Law of the University of Indonesia in 1964.

Hon. Marianna SutadiVice Chief JusticeSupreme Courtof Indonesia

Larry Ram

os


prints, priority should be given to thosegoals that will have an immediate effect onthe development of an independent and im-partial court. This can be best achieved bythe establishment of an external supervi-sory mechanism, as is currently being pur-sued by the Partnership for GovernanceReform. The Supreme Court should also con-tinue to partner with CSOs and reform-minded academic circles so they can con-solidate their expertise and experience inimplementing the reform agenda.

ReformDevelopments inthe AttorneyGeneral’s Office ofIndonesiaMAS ACHMAD SANTOSAAdviser, Partnership for Governance Reformin Indonesia

Public expectations for Indon-esia’s public prosecutor’s officeAttorney General’s Office (AGO),are focused on the eliminationof corruption on two fronts.

First, corruption within the AGO must beeliminated, because such internal corrup-tion renders law enforcement ineffective.Second, the AGO must be mobilized to fightcorruption throughout the country, andbring to justice the worst offenders, whohave embezzled government funds and ad-versely affected the image of the Republic.

The AGO has four plans of action tomeet these public expectations:a. To intensify the investigation and pros-

ecution of corruption cases throughoutIndonesia;

b. To review all cases that have ended inan order to stop the investigation orprosecution and expedite the enforce-ment of all cases that have attractedpublic attention;

c. To promote internal reform within theAGO; and

d. To push forward the establishment of

the independent prosecutorial commis-sion as a part of the effort to develop anexternal control mechanism for theAGO.

Internal reforms in the AGO will addresspublic demands to establish an ethical,transparent, participatory, and accountablepublic prosecutor. The ADB-funded Gover-nance Audit of the Public Prosecution Ser-vice, as well as the National DevelopmentPlanning Agency’s national plan of actionfor combating corruption, will provide find-ings and recommendations that will formthe basis for AGO reforms.

A prosecutorial commission has beenproposed. If the President establishes theCommission, it will act as an external over-sight body that will supervise and enhancethe AGO’s performance. The Commissionwill monitor and evaluate organizationalconditions within the AGO. It will superviseand evaluate prosecutors’ conduct andmake recommendations for reforms.

The AGO has involved independent le-gal experts and CSOs in two task forces: thetask force handling corruption cases andthe task force for internal reform agenda.There are also plans to include CSO mem-bers and independent experts in the selec-tion committee of the Prosecutorial Com-mission. This multi-lateral strategy is simi-lar to Chief Justice Manan’s approach to de-fining and implementing the judicial reformagenda with the involvement of non-govern-mental organizations (NGOs).

NGOs working on the judiciary reformsformed a coalition called NGOs’ Coalitionon Judiciary Monitoring. The NGOs’ involve-ment in the reform agenda included: (a) pro-viding technical assistance, including con-sulting service; (b) drafting Supreme Courtregulations and developing blueprints forreform; (c) compiling comparative researchon certain legal issues such as class actionsuits and court-affiliated ADR; and (d) par-ticipating in the selection process of jus-tices. For example, there is a civil societyrepresentative in the selection committeeof ad hoc judges for the Anti-CorruptionCourt. The NGOs also act as watchdogs byexamining court decisions that trigger pub-lic controversies and investigating candi-dates for appointment as justices or as mem-bers of the judicial commission. In sum,NGOs have had a significant role in promot-

First, corruption

within the

Attorney

General's Office

(AGO) must be

eliminated,

because such

internal corrup-

tion renders law

enforcement

ineffective.

Second, the AGO

must be mobi-

lized to fight

corruption

throughout the

country, and

bring to justice

the worst of-

fenders.

■■■■■


ing judicial reforms and supplementing thepro-active role and leadership of the Su-preme Court. The involvement of indepen-dent experts and CSOs in the AGO reformsshould likewise promote the efficacy andsustainability of the reform projects.

The multi-tiered AGO reform agenda, inconjunction with the proposed prosecu-torial commission, will do much to combatboth corruption that is internal to the AGOand corruption in the rest of the govern-ment. Reforms that can make strides againstcorruption and improve the law enforce-ment conditions in Indonesia will succeedin responding to public demands and meetpublic expectations for the AGO and lawenforcement in Indonesia generally.

“The Attorney General’s Officehas involved independent legalexperts and CSOs in two taskforces: the task force handlingcorruption cases and the taskforce for internal reformagenda.”

Mas Achmad Santosa is an Adviser for Legal and Judicial Reform in the Partner-ship for Governance Reform in Indonesia, a non-governmental organization setup by the government of Indonesia and the United Nations Development Pro-gram (UNDP), which is mandated to promote governance reform in Indonesia.He is involved as an advisor in various efforts to reform the Supreme Court(Mahkamah Agung) and the Attorney-General’s Office (AGO). Besides his teach-ing activities in the Law School at the University of Indonesia, he is also in-volved in various NGOS, working for legal and judicial reform as founder andsenior researcher in the Indonesian Centre for Environmental Law (ICEL), aswell as the Indonesian Institute for Independence of Judiciary (LeIP), the Na-tional Consortium on Legal Reform (KRHN) and the Indonesian Institute forConflict Transformation (IICT). He is also currently a member of the GoverningBoard of the Indonesia-Australia Legal Development Facility (IALDF).

Mas Achmad SantosaAdviser, Partnership forGovernance Reform inIndonesia

Larry Ram

os

OPEN FORUMOn Enhancing the Effectiveness andAccountability of the Judiciary

Judicial Independence and AccountabilityREGION-WIDE OBSERVATIONS:• The general public has little or no confidence in the judiciary.• Even well-connected investors are extremely frustrated with unpredictable investment climates caused by

the unpredictable and inefficient judicial system.• Developing countries cannot achieve sustainable economic growth, which is the key to poverty eradication,

without a well-functioning, efficient, and honest judiciary.• Increasing judicial independence and accountability can transform judicial systems and provide the founda-

tion for sustainable economic growth.

CHALLENGES TO INCREASING JUDICIAL INDEPENDENCE AND ACCOUNTABILITY:• Analytical studies and recommendations alone do not guarantee implementation of reforms.• Without a stable, democratic, and clean political system, it is hard for the judiciary in any country to avoid

government interference.• Judicial independence requires:

o strong leadership within the judiciary to overcome day-to-day interference from outside forces andwithstand the onslaught of vested interests;

o financial independence in order to avoid improper political influence and manipulation achievedthrough budgetary pressure; and

o administrative support to maintain functional independence from the other branches of government.• Members of the judiciary must be held accountable to an entity within the democratic institution, for

example: the parliament or civil society.• A judicial ombudsman could be established to monitor the justices, as an alternative or supplemental


accountability mechanism. There are, however, in certain jurisdictions, constitutional provisions that ensurethe independence of the judiciary, which may limit the scope or prohibit such establishment entirely.

Networking among Regional Judiciaries• The Philippine Supreme Court, in cooperation with the World Bank and ADB, is organizing a regional

conference for members of the judiciaries, law professionals, and heads of judicial academies. The confer-ence aims to facilitate the sharing of information and experiences about judicial reforms among the variousjudicial systems and jurisdictions. The conference presupposes that:o a functional and efficient judiciary is a necessary component of good governance and a precondition for

sustainable economic development, ando the participating countries are all engaged in efforts to reform their judiciaries and legal systems with

the same guiding principles in mind.

■■■■■

Networking among regional judiciaries results in the identification of strategies for increased judicialeffectiveness and accountability.

Chapter 6Operational Challenges inJudicial Reform■ Plenary Report

• Funding the Judiciary and Judicial Reform• Judicial Ethics and Competence

■ Case and Case Flow Management• Case and Case Flow Management in Islamabad• Peshawar Solutions to Case and Case Flow Management• East Karachi Operational Practices and Procedures to Case and Case Flow Management• Case and Case Flow Management

■ Improving Court Registries and Process Service• Challenges to Improving Court Registries: The Peshawar Context• East Karachi Strategies for Improving Court Registries• Improving Court Registries and Process Service

Plenary Report on OperationalChallenges in Judicial ReformA. Funding the Judiciary and Judicial Reforms

• Participants shared individual country experiences in judiciary funding and reform; identified commonpractices and issues related to judicial funding and judicial reform financing; discussed reform goals,objectives and priority reform areas; and agreed on a set of shared principles and approaches that couldguide country-specific reform initiatives.

• Participants highlighted the ways in which judiciaries are currently funded; the mechanisms that deter-mine funding levels and structures; the institutional processes by which funds are remitted to or collectedby the judiciary; the accounting and reporting of judicial funds; the factors that influence judicial indepen-dence, both institutional and individual, including: integrity, vulnerability, accountability, and efficiency ofinternal resource management; and sources of funding for the judiciary, including: budget from thenational or local governments and grants or loans from donor or lending institutions.

• They also discussed matters relating to national and local judicial budgets.o In most countries, the judiciary’s budget is proposed by the national or local executive department, and

approved by national or local legislature, respectively.o Different budgets are allocated for the superior or high courts and the lower or district courts.o Funds are released by the finance department of the relevant country or province.

Participants

shared individual

country

experiences in

judiciary funding

and reform;

identified

common practices

and issues related

to judicial funding

and judicial reform

financing;

discussed reform

goals, objectives

and priority

reform areas; and

agreed on a set of

shared principles

and approaches

that could guide

country-specific

reform initiatives.

■


Challenge: Dependence of the Judiciary on the ExecutiveIf the judiciary is not a high priority for the government, dependence of the judiciary on the executive can causethe judiciary to be under-funded.• Some countries have adopted judicial budget laws that allow courts to submit their own budget indepen-

dent of the executive department.• A supreme court budget council, including both finance and justice ministers, discuss budget proposal and

settle on the appropriate judicial funding and allocation.• The judiciary’s direct participation in the drafting of its proposed budget has resulted in improved funding

for the courts.• International donations as supplemental judicial funding:

o Funds are not given directly to the courts, but to the implementing partner agency, usually a civil societyorganization.

o Donated funding is frequently earmarked for programs that have not been allocated money in thegovernment budget.

o Lack of coordination between the governments, donor institutions, and the judiciary can result ininefficient funding decisions. In some cases, certain judicial programs can receive budgetary allocationsand grants that overlap, while other programs remain under-funded.

o There needs to be better communication between governments, donor institutions, and the judiciaryregarding the precise funding needs of the judiciary.

• The auditor general periodically audits funds that have been released to the judiciary and reports onexcess resources and irregularities. Both governmental funding and donor funding which is processedthrough government channels, as was ADB’s Access to Justice Program in Pakistan, are also subject to thesame audit procedures.

• The highest court has fiscal independence, in some countries. Therefore, the chief justice is entitled toreallocate the funds as needed, in accordance with the needs of the judicial districts, its leaders, and theallocated budget. However, in practice, the delays in processing reallocation requests can result indelayed release of funds.

• Under-funding of judicial efforts is a major concern among the participating countries. The governmentsof the participating countries frequently do not fully appreciate the link between the judiciary andeconomic development, so that they do not consider funding judicial reforms as part of a long-termdevelopment agenda.

• Funding is not the only factor—political will and proper incentives within the judiciary are equallyimportant to ensure the success of a judicial reform program.

• In discussing strategies to reform judiciary finance, the country representatives (a) defined the reformgoals and objectives; (b) discussed guiding principles; (c) addressed reform directions; and (d) discussedareas for reform.

Proposed Solutions• The judicial budget should be made a priority for development funding. Additionally, higher budgetary

allocations for the judiciary should be granted so it has the resources to better address the problems of casecongestion and delay by increasing the number of courts and judges. To ensure that governmental fundingfor the judiciary is released regularly, the adoption of automatic remittance mechanisms was suggested.

• Loans intended for the judiciary should be released to the beneficiaries efficiently and there should be nounnecessary intervention by government bureaucracy.

• The judiciary should be allowed to retain, for its own use, legal fees and charges paid by litigants as a wayto provide courts with an independent source of funding.

• Coordination between donor institutions and state budget ministries should be facilitated to avoid thedifficulties arising from conflicts between the government’s fiscal year and the donor’s project schedule.

• The judiciary should be granted control over its budget proposal and approval process.• Executive discretion in determining the judicial funding and distribution of resources within the judiciary

should be removed.• A separate and independent judiciary should be established, both for purposes of case adjudication and

also for internal affairs management.• The judiciary’s resource management, capacity, and efficiency should be improved.• The support of the local governments for judicial reform programs should be obtained.• The increasing case load of courts should be managed.• Public access to the courts should be increased, particularly for disadvantaged and vulnerable groups.• Bar associations, business organizations, non-government organizations, and the media should be in-

volved in efforts toward judicial reforms.


B. Judicial Ethics and Competence

• The session aimed to discover, compare, and evaluate current judicial practices and reform programs;provide suggestions for improvement; and identify best practices in the region.

• Participants tackled the recruitment and selection of judges; improvement of court services; corruption;and grievance mechanisms citizens can access to report unethical judicial behavior.

• It was noted that judicial systems across the region shared common issues:o A large number of vacant judgeships in the courts existed in many jurisdictions.o Internal resistance to assessment and evaluation was also common.o There is a lack of standardized qualifications and competencies for judges, as well as a merit-based

system for the assignment and promotion of judicial officers.o Delegation of judicial authority to unqualified subordinates was common, as was corruption in the

handling of cases. Moreover, consultations with stakeholders were marred by political interests acrossthe region.

Proposed Solutions• A fair, competitive examination conducted by supreme courts, judicial organizations or bar associations

should be insitutionalized. This would promote a transparent and merit-based selection and recruitmentprocess at the foundation of the legal system.

• A regular and rigorous evaluation system for judges and court personnel to evaluate their fitness forservice based on competence, intellectual ability, behavior, and attitude was also recommended.

• Best practices need to be identified and modified for each jurisdiction’s respective situation.• Intensive training should be given to court personnel upon recruitment.• Judges and court personnel should be provided with continuing education, training, and exposure to

conferences, symposia and opportunities to dialogue with judicial officers of other countries so that theycan be informed of new laws and procedures and become familiar with best practices.

• Merit-based promotions should be insititutionalized.• The delegation of authority to unqualified subordinates should be avoided.


Case and Case FlowManagementCase and Case Flow Managementin IslamabadHON. MIAN SHAKIRULLAH JANJudge, Supreme Court, Islamabad

When I was a practicing at-torney, I represented liti-gants who complainedabout the long delays oftheir cases. I resolved that

if I ever had the opportunity, I would im-prove case flow management in the courtsto alleviate these unnecessary delays. InJanuary 2002, around the same time that theAsian Development Bank (ADB) sponsoredits Access to Justice Program in Pakistan, Iwas appointed Chief Justice of the North-West Frontier Province. As Chief Justice andwith generous resources from ADB, I had justthe opportunity to make a difference byhelping to solve the problems with case flowmanagement in the Pakistani court system.Our efforts at case flow management, includ-ing the establishment of specialized courtsto adjudicate specific types of cases, re-sulted in a reduced caseload across thecourts in Pakistan.

Analysis of Case Load andAllocation of ResourcesAt the time of our assessment, there werecertain judiciary districts where each judgehad 300 to 400 cases pending before him,while there were other districts where each

judge had as many as 900 caseson his docket. This unequal dis-tribution of cases could not beresolved by transferring casesfrom one district to another; sowe transferred judicial officersfrom one district to another.

Based on the Law Commis-sion’s target caseload of a maxi-mum of 450 cases per judge, wecalculated the number of addi-tional judges needed to copewith the current caseloadbased on the current number ofjudges and cases pending. Wefound that there were thirty va-

cant posts for judicial officers available inthe provincial judiciary that could be lever-aged to decrease some of the case backlogin the district courts. Following the properprocedure for the appointment of judicialofficers, we approached the Provincial Pub-lic Service Commission to request that theposts be filled but we were informed that itwould take about two to four years to fill allthe vacancies. In view of the huge numberof pending cases, the court system couldnot afford to wait. However, just at that timeADB released the Access to Justice Projectfunds to the federal government and subse-quently to the provincial government. Thesefunds enabled the creation of approxi-mately fifty new civil judgeships and fifty-seven additional session judgeships. Everyappointment was made according to estab-lished procedures and the process was trans-parent.

With the understanding that judicial of-ficers alone cannot change the system, wefocused on ensuring the quality of ministe-rial and administrative staff. Our work be-gan with framing recruitment rules for theministerial staff. According to the rules, theselection committee was to be composedof the (a) district judge as the appointingauthority, (b) one of his nominees, and (c)one nominee of the high court.

Although it was not possible for us tocreate many new ministerial posts with theallocated budget, we were able to post oneofficer as additional Member InspectionTeam (MIT). We upgraded some ministerialstaff posts in the High Court and transferredcompetent judicial officers to the MIT.

In addition to the redistribution and in-creases in staffing resources, we supple-mented facilities and technical equipment.We provided the district judiciary withequipment, such as computers, air condi-tioners, furniture, fax machines, and photo-copiers, all of which was procured withfunds provided by ADB. We also establishedfully-equipped district libraries and confer-ence rooms in various districts.

Incentives and Performance ReviewIn an effort to foster involvement by the

individuals in the reform process, we con-ducted provincial judicial conferences andworkshops. We attended district judicialconferences and spoke with judicial offic-ers the problems they face in their courts

At the time of

our assessment,

there were

certain judiciary

districts where

each judge had

300 to 400 cases

pending before

him, while there

were other

districts where

each judge had

as many as 900

cases on his

docket.

■■■■■

In Pakistan, effecitvecase and caseflowmanagement strategieshave successfullyreduced cases pendingbefore the courts.

Muh

amm

ad B

ilal


and actions they have already taken tosolve them. These interactions show respectfor judicial officers, who in turn take agreater interest in the reforms they feel theyare helping to shape. In a similar vein, weconstituted a district criminal justice coor-dination committee, the citizen liaison com-mittee, and the bench-and-bar committees.These committees enable cooperative ef-forts in reducing case delays.

A rewards program was drafted withawards, certificates, and pay increases givento judicial officers who have performed well.At the same time, we lobbied for increasedcompensation for judicial officers acrossthe board. It was proposed that the salaryof a civil judge, which averaged approxi-mately 27,000 Pakistani Rupees (PKR) in2002, be raised to a minimum of PKR 27,000.There were certain objections to this pro-posal because the maximum salary for a dis-trict judge was about PKR 40,000 or PKR50,000. There was fear that other civil ser-vants of the same grade would also demandthe salary increase. A proposal to changethe grade of judicial officers was made, butrejected because the change in grading sys-tem would effect other allowances that thejudicial officers are entitled to. Ultimately,it was decided that a monthly judicial al-lowance be allocated to the judicial offic-ers, in addition to the allowance to whichthey are already entitled as civil servants.We also established a judicial welfare fundand are now planning a retirement systemfor judicial officers.

Incentives and rewards for good perfor-mance must be accompanied by account-ability for poor performance. In order toimprove performance review and account-ability, we strengthened the office of the MIT.The MIT monitors court performance byconducting confidential annual reviews ofjudges and investigating complaints fromthe public against judicial officers. Proce-dures for a grievance committee to addresssuch complaints were drawn up. We alsolaunched a monitoring and evaluation sys-tem whereby all the judicial officers are ex-pected to report their compliance and fol-low-up actions with respect to the imple-mentation of reforms.

Uniform PoliciesJudicial officers and administrative supportstaff need uniform policies to implement

reforms consistently. During our inspection,we found that while there was a policy gov-erning the handling of civil cases, there wasno counterpart policy for criminal cases. Weframed and revised a policy on the proce-dural aspects of criminal cases. At the sametime, we also issued a schedule for a pro-gram to reduce case delays. According tothis policy, the oldest cases will be givenpriority, and hearings will proceed two daysa week in order to speed the resolution ofolder cases.

ResultsAt the end of my first year as Chief Justice,the number of appeals pending before theHigh Court was reduced from about onehundred to just fourteen. The remainingcases were left unresolved because theywere not procedurally situated for disposi-tion. We launched cooperative efforts forreform, made good use of the funds madeavailable by ADB to increase human re-sources and facilities, and analyzed the case

“As Chief Justice and withgenerous resources from ADB, Ihad the opportunity to make adifference by helping to solve theproblems with case flowmanagement in the Pakistanicourt system. Our efforts at caseflow management, including theestablishment of specialized courtsto adjudicate specific types ofcases, resulted in a reducedcaseload across the courts inPakistan.”Justice Mian Shakirullah Jan was appointed as Chief Justice of North WestFrontier Province (NWFP) High Court of Pakistan on 10 January 2002 and waselevated as Judge of the Supreme Court of Pakistan on 31 July 2004. He was anAdvocate of the Lower Courts in 1973; an Advocate of the High Court in 1975and an Advocate of the Supreme Court in 1980. He was a Member of theExecutive Committee, Supreme Court Bar Association of Pakistan in 1993-94(elected unanimously); member of the Provincial Bar Council, NWFP, Peshawarfor the period 1989 to 1993 and Chairman of Free Legal Aid Committee of theCouncil for 1990 (elected unanimously). He was Additional Advocate GeneralNWFP from July 1993 until his elevation as an Additional Judge of PeshawarHigh Court on December 13, 1993. He graduated from Islamia College, Peshawarand obtained a Law Degree from the Khyber Law College, Peshawar Universityin 1972.

Hon. Mian ShakirullahJanJudge, Supreme CourtIslamabad

Larry Ram

os


backlog with a view to reducing everycourt’s caseload and maintaining lowercaseloads in the future. Most importantly,we began efforts to reform the ways in whichjudges, court staff, and attorneys thinkabout case flow management and set up theincentives and accountability mechanismsnecessary to ensure the sustainability ofour other reform efforts.

Peshawar Solutions to Case FlowManagementMUHAMMAD SHER SHAHRegistrar, Peshawar High Court, Pakistan

Effective case flow management iscrucial to the reducing delays ofparticular cases, facilitating theexpeditious disposal of cases onthe court’s docket, and stream-

lining court administration and judicial pro-cesses. Improved case and case flow man-agement is important to fulfill the Pakistanconstitutional requirement that the Stateshall ensure expeditious and inexpensivejustice.

Part of Pakistan’s Access to Justice Pro-gram (AJP) focuses on reducing delays inthe processing of cases. Case delays can bemitigated by eliminating the backlog ofpending cases and by reducing the caseload of each court to a manageable size.

Challenges to Case Flow ManagementOne of the challenges to effective case

management is the weak institutional frame-work of the court system. Unlike Australianor American courts, there are no statutes orconsolidated, institutionalized rules thatregulate case and case flow management.There are few rules that limit the amount oftime allowable for each stage of a litigation,for example, the rule that witness lists mustbe submitted within a determinate numberof days after the filing of written statements.There is no systematic docket, and in eachcase at the High Court level, the assigneddocket number changes with every hearing.

Another challenge to effective case man-agement is the need to strike a balance be-tween the Court’s speedy resolution of casesin order to meet their targets set by the HighCourt, and the need to enable litigants to

pursue their cases with the full assistanceof their lawyers. There are an inadequatenumber of judges to dispose of the numberof cases, but the quality of adjudication ineach case must not be sacrificed simply toincrease the number of cases processed.

The Code of Criminal Procedure (Amend-ment) Ordinance 2001 (Ordinance XXXVII of2001) abolished the system of executivemagistrates (officers of the executive branchwho heard and decided cases in a quasi-ju-dicial capacity). All cases pending before thecourts of the executive magistrates weretransferred to the judicial magistrates, dras-tically increasing the judicial magistrates’case loads without providing them with in-creased capacity. The North Western Fron-tier Province (NWFP) does not have any spe-cialized civil, criminal, family or landlord-ten-ant courts to ease the case load in the pri-mary courts and provide fora where judgeswith specific training in particular areas ofthe law can utilize their expertise in facili-tating the flow of cases.

Lack of training facilities and adminis-trative and technological support furtherhinders the adoption of modern case flowmanagement techniques. Judges lack caseflow management skills to enable them todispose of cases in a timely manner andavoid backlog. The lack of administrativesupport and the lack of information tech-nology facilities result in courts without au-tomated systems to ensure the uniform num-bering of cases. The absence of standard-ized forms to facilitate the processing ofcases institutionalized procedures for expe-diting the receiving and processing of docu-ments also inhibit efficient operation. Bothlegal and administrative personnel requiretraining in the use of case flow managementsoftware to enhance their capacity to assessthe status of cases and take steps to stream-line the calendar of the court.

Frivolous litigation tactics also contrib-ute to delays in case processing. Sometimesentire cases are fabricated, and other timesa genuine claim will be accompanied bybaseless supplemental claims included toharass the other party.

Reform Measures UndertakenThe Peshawar High Court has implementedseveral reform measures in order to improvecase flow management.

One of the

challenges to

effective case

management in

the Peshawar

District, specifi-

cally, is the

weak institu-

tional frame-

work of the

court system.

Unlike Austra-

lian or American

courts, there are

no statutes or

consolidated,

institutionalized

rules that

regulate case

and case flow

management.

■■■■■


CAPACITY BUILDINGAs part of the Access for Justice Program,107 new civil and criminal courts were es-tablished in major districts and the numberof judges was increased. Newly recruitedadditional session judges and civil judgesare receiving pre-service training while se-nior judges undergo in-service training. Thejudicial staff at both the High Court and dis-trict levels are also receiving training. An-nual judicial conferences are being held todiscuss the ongoing concerns of the judi-ciary.

MONITORING AND INSPECTIONThe Peshawar High Court conducted initialinspections of the courts and prepared aconsolidated inspection report for circula-tion to all courts. This report informedcourts of ways in which to monitor case flowand included standard checklists for casesof different types to be maintained by thecourts and referred to at various stages ofeach case.

A standard Annual Work Plan wasadopted for use by all courts. Each court isrequired to prepare an annual work plan forsubmission to the district judge who shallconsolidate these plans for submission tothe High Court. The Peshawar District Courthas already submitted its work plan.

In July 2002, a Time-Bound ReductionPlan was implemented whereby each courtwas required to set a minimum number ofcases to be decided each month. These pro-jections and the quantitative disposal ofcases are regularly monitored by the office ofthe Member Inspection Team (MIT), whichalso monitors certain sensitive cases, such asthose of detained defendants that have notyet been tried and family cases. MIT officersassist in speeding the resolution of cases by,for example, placing calls to the court beforewhich a detained defendant’s case is pend-ing to expedite the scheduling of the hearing.

COMPLAINT AND GRIEVANCE CELLA Complaint and Grievance Cell in the of-fice of the MIT was established as an ac-countability mechanism to entertain com-plaints by parties against judicial officersand to address grievances about delay inthe disposal of cases. Between July 2002 toDecember 2004, the new department re-ceived 2,804 complaints and fully addressed2,039 of them.

INCENTIVE AND REWARD POLICY PROGRAMThe Incentive and Reward Policy was intro-duced to foster healthy competition bet-ween judicial officers and motivate them toimprove their performance. Annual salaryincreases and other monetary and non-mon-etary awards are given to judicial officersbased on their performance in theirmonthly evaluations of the quantitative andqualitative disposal of cases and court man-agement.

EQUIPMENTTo facilitate case and case flow manage-ment, 155 courts were equipped with com-puters, printers, photocopiers, fax machinesand other necessary equipment. To date,nearly half of the courts have been suppliedwith new equipment, and requisitions havebeen made to ensure that the remainingcourts receive equipment as soon as it isavailable. People trained in informationtechnology are also recruited to serve assupport staff to the courts.

BENCH-BAR LIAISON COMMITTEESA Bench-Bar Liaison Committee has been es-

“The reforms implemented in thePeshawar courts have proven tobe extremely successful in reducingthe backlog of cases.... [We] havenow disposed of a full 75 percentof the entire backlog of cases fouryears old or older. In the past twoyears (2003–2004), the averagerate of disposing of cases was 14percent higher than the rate atwhich cases were filed. If thispattern continues, the backlog ofcases will be completelyremedied.”Mr. Muhammad Sher Shah is the Registrar of the Peshawar High Court in Paki-stan. He served as General Secretary of the District Bar three times and itsPresident four times. He was appointed as Additional District and SessionsJudge in October 1993 until he was promoted to District and Sessions Judge in2001. In June 2002, he was part of the Member Inspection Team in the PeshawarHigh Court until his posting as Registrar in November 2004.

Muhammad Sher ShahRegistrar, PeshawarHigh Court, Pakistan

Larry Ram

os


tablished in every district throughout theprovince. Each committee is headed by thedistrict judge of that jurisdiction. Committeemembers meet quarterly to discuss strategieson how to improve judicial performance.CRIMINAL JUSTICE COORDINATING COMMITTEESCriminal justice coordinating committeeshave likewise been established in each ofthe provincial districts. These committeesare chaired by the district judge and staffedby the district police officer, the district jailsuperintendent, the district public prosecu-tor and the probation officer. They holdmonthly meetings to discuss the issues re-lated to the criminal justice system and cre-ate strategies to overcome them.

ConclusionThe reforms implemented in the NWFPcourts have proven to be extremely success-ful in reducing the backlog of cases. Thecourts have now succeeded in disposing of89 percent of cases filed between 1971 and1980, 81 percent of cases filed between 1981and 1990, and 67 percent of cases filed be-tween 1991 and 1999. Peshawar courts havenow disposed of a full 75 percent of the en-tire backlog of cases four years old or older.In the past two years (2003–2004), the aver-age rate of disposing of cases was 14 percenthigher than the rate at which cases werefiled. If this pattern continues, the backlogof cases will be completely remedied.

In accomplishing these reforms, NWFPcourts relied on the committed leadershipof the Chief Justice, and the multi-tiered pro-gram to educate and motivate judicial of-ficers to mobilize to improve case and caseflow management. The reform program en-gages every court in the province and ismonitored very closely by the High Court.Due to the comprehensive approach andstrong leadership, the NWFP reform pro-gram has been immensely successful in im-proving case flow management and ulti-mately access to justice.

Karachi East Operational Practicesand Procedures to Case and CaseFlow ManagementHON. ZAFAR AHMED KHAN SHERWANIDistrict and Sessions JudgeKarachi East, Pakistan

Judicial reforms to achieve access tojustice are a crucial element of theagenda to encourage economicgrowth and alleviate poverty. TheAsian Development Bank (ADB) has

provided financial assistance to the govern-ment of Pakistan for a multifaceted judicialreform program. The improvement of caseflow management in the courts is one of thecentral goals of the reform program.

Case flow management is the manage-ment of the continuum of processes and re-sources necessary to move a case from fil-ing to disposition, whether this dispositionis by settlement, plea, dismissal, trial, or anyother method. The goal of case flow man-agement is to expedite the disposition ofall cases in a manner consistent with fair-ness to all parties; to enhance the quality oflitigation; to assure litigants equal accessto the adjudicative process; and to minimizethe uncertainties associated with the pro-cessing of cases.

East Karachi has adopted a two-tieredapproach to address the severe problem ofcase backlog in the courts of that jurisdic-tion. Not only must the current backlog ofcases be disposed of as swiftly as possible,but effective case monitoring systems andaccessibility of case information must beimproved to maintain efficient case flow inthe future. The first level of the program,which has already been completed, in-volved the definition of institutional goalsand establishment of priorities. The secondlevel, which is currently in progress, in-volves setting up an evolutionary informa-tion processing and dissemination modelat District Level Courts.

Establishment of Goals and PrioritiesThe first level involved the following strate-gies: (a) promoting a paradigm shift amongthe members of the judiciary; (b) prioritiz-ing cases; (c) fixing time periods for the dis-position of cases; (d) monitoring of thecourts; and (e) consulting with the Bar.

89%of cases filedbetween 1971 and1980 that havebeen disposed byPeshawar courts.

81%of cases filedbetween 1981 and1990 that havebeen disposed.

67%of cases filedbetween 1991 and1999 that havebeen disposed.


The paradigm shift requires a change inthe attitudes and approaches of the indi-vidual members of the judiciary and courtstaff. While such a shift is intangible anddifficult to measure, it is nonetheless a fun-damental element of implementing and sus-taining any reform program. In the case ofthe East Karachi judicial reform program,the paradigm shift was achieved throughdissemination of information on the pro-grams accompanied by training. Judges wereencouraged to welcome the reforms and pro-vide assistance and cooperation to the newmethods adopted to facilitate case flow.They were taught how to prioritize cases,beginning with the 30- to 35-year old casesthat had been transferred from the HighCourt to the District Courts with the expan-sion of the latter’s jurisdiction.

The program’s goal was to clear thebacklog within a period of two to threeyears. A workshop was held with membersof the judiciary where it was jointly decidedto clear the backlog at a rate of three per-cent per month. A time limit was fixed forthe disposal of each category of case andsteps were taken to ensure the implementa-tion of the scheme. Judges have been moni-tored to ensure that they adhere to the statu-tory periods limiting the amount of time al-lowed to decide each type of case. For ex-ample, civil cases must be disposed of withineight months, rent cases within five months,and family cases within four months.

In addition to setting limits on theamount of time allowed for the disposal ofeach case, the program has introduced newscheduling practices. Previously, the gen-eral practice was for the court staff to fixthe hearing dates. As a result, judges didnot know how many cases were scheduledfor a particular date nor did the staff knowwhether the judge was available on that dateor not. Now, judges have become more in-volved in setting the schedule of cases andare required to maintain their own court ap-pointment records. These new schedulingpractices are intended to assure litigantsand attorneys that cases will proceed asscheduled.

Judges and their staff are monitored tosee that proper court procedures are ob-served. There are also regular consultationswith members of the Bar who provided in-puts on the reform programs.

After this program was followed in

Karachi Central, the twenty-five judges as-signed there were able to clear 70 percentof their backlog within thirty-two months.Two factors counteracted the positive ef-fects of the reforms and prevented the back-log of cases from being disposed of asquickly as it could have been. First, severalcourts were vacant because the presidingjudges had been transferred to new assign-ments. Second, extra-judicial duties per-formed by the judges, including the super-vision of local elections, referendums, andgeneral elections, prevented them from fo-cusing all of their time on processing thebacklog of cases. While it is an importantfunction of the judiciary to ensure indepen-dent elections, it nonetheless affects the pri-mary functions of the courts.

The same approaches and methodolo-gies to address the case backlog were imple-mented in Karachi East. In thirteen months,40 percent of the backlog was cleared. Thenumber of pending cases was reduced from12,961 to 10,389 as of 1 January 2005.

Improvement of InformationProcessing TechniquesThe second level of judicial reforms focuses

“The paradigm shift requires achange in the attitudes andapproaches of the individualmembers of the judiciary andcourt staff. While such a shift isintangible and difficult to measure,it is nonetheless a fundamentalelement of implementing andsustaining any reform program. Inthe case of the East Karachijudicial reform program, theparadigm shift was achievedthrough dissemination ofinformation on the programs.”

Mr. Zafar Ahmed Khan Sherwani is a Districts and Sessions Judge of KarachiEast, Pakistan. He was formerly Registrar, Special Courts for Speedy Trials,Home Department of the Government of Sindh. He was also Deputy Chief Plan-ning, Emergency Planning Cell, Home Department and Member Inspection Team,then Registrar, of the High Court of Sindh. He was also involved in the PilotProject of the Access to Justice Project of the Asian Development Bank.

Hon. Zafar AhmedKhan SherwaniDistrict and SessionsJudge, East KarachiPakistan

Larry Ram

os


on the introduction of improved informa-tion processing techniques.

The District Courts of Karachi East hasembarked upon a groundbreaking programof automating its case flow management, us-ing Case Filer, a state-of-the-art software ap-plication designed and developed by a Pa-kistani company. This system enables thecourt to automate case filing and trackingas well as to efficiently disseminate case listsand information related to specific cases.Case Filer allows litigants to make case in-quiries via an information cell located onthe premises of District Court East. Partiesare now able to access searchable case lists,judgments and basic rules and procedureson the Internet.

An information technology trainingcenter was established to enable judges andtheir staff to receive basic training on com-puter applications and accessing custom-ized court-related software. Private consult-ants were hired to conduct workshops andsymposia on the use of technology to facili-tate case and case flow management. Thetraining center will train trainers for othercourts as well.

A 50,000 volume law library has alsobeen established to provide judges accessto legal materials, including journals, as wellas providing Internet facilities. Case law isavailable online and on CDs prepared by anelectronic law journal. The library is run bystaff who are available to assist with theelectronic as well as the traditional re-sources. The library is available to all thejudges in Karachi East, as well as to judgesfrom other districts.

All the courts in the district, the infor-mation technology training center, and thelibrary are connected by a local area net-work following the Integrated InformationProcessing Monitoring Model. Informationat all levels about bar and court manage-ment is now available to court users, liti-gants, members of the bar, and judicial of-ficers and staff. The general public can alsoaccess, first hand, current informationabout court rules, procedures, case lists, andany other matter concerning the courtsthrough information kiosks. Parties mayalso file cases electronically by submittingforms available on the www.karachieast.orgonline. Judges can use the One-Point Accessto Information program to monitor all

courts through a single interface throughthe local area network. This makes it pos-sible for judges to monitor the entire pro-cess and identify the cases that are not pro-ceeding according to schedule.

The two-tiered program to alleviatecase backlog and promote the speedy reso-lution of cases over the long term has al-ready shown signs of success and promisesto continue to improve the efficacy of thejudicial system in Karachi in the future.

Case and Case Flow ManagementRICHARD HOFFMANConsultant, The Asia Foundation

Courts in Singapore, the Philip-pines, Pakistan and Bangladeshhave all developed and adoptedcase and case flow managementtechniques, following the pat-

tern established in North America and West-ern Europe. In Bangladesh, for example, theWorld Bank has developed a project to getan accurate count of the cases in every courtso that judges will have complete informa-tion regard the cases on their dockets. TheAsian Development Bank (ADB) is support-ing preliminary work on case flow manage-ment in India, and the court system in Delhiis now in the second phase of that project.

There are ten key elements to an effec-tive case flow management program: (a)leadership; (b) clearly defined goals; (c) in-formation; (d) communication; (e) clear poli-cies and procedures; (f) education and train-ing programs; (g) commitment by the admin-istrative staff; (h) accountability mecha-nisms; (i) judicial responsibility and com-mitment; and (j) backlog reduction and in-ventory control. The effectiveness of acourt’s caseload management often de-pends greatly on the character of the locallegal culture and the attitudes and behav-iors of private attorneys. Surveys show thatmany lawyers prefer good case flow man-agement in the courts because it improvescertainty within the system.

Adopting case flow management prin-ciples is most effective when leadershipwithin the courts and the judicial systemsupport the reforms. Principles and proce-

The effective-

ness of a court’s

caseload man-

agement often

depends greatly

on the character

of the local legal

culture and the

attitudes and

behaviors of

private attor-

neys. Surveys

show that many

lawyers prefer

good case flow

management in

the courts be-

cause it im-

proves certainty

within the

system.

■■■■■


dures for good case flow management can-not be imposed from the outside. Leader-ship within the judiciary and the wider le-gal community must appreciate the factthat proper case flow management does notsacrifice justice but enhances it. Good caseflow management prevents unnecessarydelays in litigation and ensures that casesare resolved while memories are fresh, evi-dence is available, and the parties are alive.In certain countries and jurisdictions, law-yers have been skeptical that case flowcould be effectively managed. However, af-ter the implementation of reforms, lawyers’behavior reflects their reliance on the cer-tainty gained by way of case flow manage-ment. Attorneys no longer file cases unlessthey are ready to move to trial and disposi-tion, for example. Case flow management isimportant not only because it ensurestimely disposition of individual cases, butalso because it can increase deference forthe judicial system as a whole and mitigatefrivolous litigation.

Institution of case flow managementprinciples must be treated as a continuingprocess, and not as a one-time remedy. Pro-grams for the adoption of case flow man-agement principles must not only be pi-loted and implemented but also revisitedand reinforced. When courts adopt caseflow management principles, they must con-sistently review their performance in orderto maintain the gains made by initial re-forms. The biggest challenge is to institu-

“Case flow management isimportant not only because itensures timely disposition ofindividual cases, but alsobecause it can increasedeference for the judicial systemas a whole and mitigatefrivolous litigation. ”Mr. Richard Hoffman is a courts and justice system consultant based in Washing-ton, D.C. He is currently Team Leader for the Asia Foundation for the Improve-ment of the Administration of the Indonesian Supreme Court project in Jakarta.He has helped formulate strategies to increase judicial independence and ac-countability as well as design physical assets management systems in Philip-pine courts. In 2004, he conducted a study of the financing of the SerbianCommercial Court and directed a criminal case flow management survey of theMacedonian basic courts. He has set out a plan to improve case processing inthe High Court and Appellate division and to establish a national court adminis-trative office in Bangladesh and examined information systems developmentsin Sri Lanka. While at the Administrative Office of the U.S. Courts, he helpeddraft the first Long Range Plan for the Federal Courts and trained more than 150federal court administrators in strategic planning. He directed the preparation ofthe final report of the Council on the Role of Courts at the U.S. Department ofJustice and conducted a wide range of court improvement projects for the Na-tional Center for State Courts. He graduated from Cornell University with a B.S.in industrial and labor relations, received a J.D. from Harvard University, and isa Fellow of the Institute for Court Management.

Richard HoffmanConsultantThe Asia Foundation

Larry Ram

os

Open ForumOn Case and Case Flow ManagementResistance to Case and Case Flow Management Reforms• Participants expressed concern that judicial reform efforts might be met with resistance from the govern-

ment and from the judiciaries and members of the bar.• Example: Peshawar, Pakistan. The government in Peshawar, Pakistan initially resisted reforms,

including the creation of additional posts and the grant of judicial allowances. Meetings between thereform program designers and officers of the provincial governments from the chief secretary to thelowest ranking official, led to agreement on the necessity of certain reforms.

Donor and Recipient Nation Relations• Donor nations and foreign institutions that promote and fund judicial reform programs might be seen to

intrude on the domestic affairs of the recipient states and so undermine their sovereignty.

tionalize the reforms process so that caseflow management becomes entrenched inthe judicial culture and incoming judgesand administrative staff simply proceedwith the reformed principles and proce-dures.


• Recipient states must remain sovereign and independent, and be allowed to implement reforms on theirown.

• Rewards to recipient states for the successful implementation of reforms are acceptable, but imposingpenalties for unsatisfactory implementation is more problematic.

Bench and Bar Resistance• In many South Asian countries, there generally is tension between the bench and the bar and common

resistance to reform efforts.• Example: Delhi, India. Case hearings are often postponed because the vocal and aggressive Delhi Bar

treats adjournment of a case as a matter of right and not as a privilege.• Solution: Peshawar, Pakistan. The Chief Justice visited each district to educate the judicial officers

about the need to implement the judicial reform program, emphasizing that the delay in implementationof the reforms would be detrimental to the delivery of justice.

• Court representatives also met with members of the Bar to discuss the aims and purposes of the judicialreform program and obtain their cooperation, particularly in helping reduce delay in the disposal of cases.A Bench-Bar liaison committee was established to enhance the consultation process and encouragefrequent dialogues between representatives of both groups.

• Solution: East Karachi, Pakistan. The Court obtained the cooperation of the members of the bar inimplementing judicial reforms by fostering a shared sentiment that both the Bench and the Bar wereworking in the interest of justice. The benefits to the public were emphasized. Attorneys understood thatreforms would facilitate their work, that speedy disposal of cases would expedite the payment of theirfees, increasing attorney incentives to support reform efforts.

Implemented ReformsISLAMABAD, PAKISTANa. Annual district conferences were institutionalized and held in the frontier provinces to give the subordi-

nate judiciary (i.e. district judiciary) an opportunity to convey their grievances to the High Court to whichthey report administratively.

b. Grant funds were allocated for the Access to Justice Program and for the compensation and the establish-ment of a rewards program for judicial officers. Representatives of the 29 implementing agencies in-volved in the program management of the Access to Justice Program sat in the Project Management Unitfor better coordination in the distribution of the meager resources.

c. District criminal justice coordination committees, citizen liaison committees and bench and bar commit-tees were established.

d. An Annual Report was published that incorporates the opinion of the previous Attorney General (who wasthe representative of the High Court Bar Association) retired judges, previous judges of the High Courtand other representatives of the bar association.

e. A training program in case and case flow management was developed for lawyers and judges to beconducted by senior lawyers.

f. Model districts in four provinces were established for identification and implementation of best practicesto be replicated in other districts.

g. Training programs in process service were established for judicial officers.h. A judicial welfare fund was established for judicial officers and staff.i. A retirement fund for judicial officers and staff is being studied.j. Fines are now being imposed for suits filed for malicious purposes or on frivolous grounds, or on the basis

of false documents.k. Adjournments at each stage of a suit have been limited to three, and a fourth adjournment now merits the

payment of fees to the other party. The judge would dispose of the case ex parte upon the fifth or sixthadjournment if the other party did not appear. Readmission of a case is no longer routine but allowed onlyupon payment of a fee.

l. An ad interim ex parte injunction is now granted with the requirement that the application for injunctionmust be resolved within ten days of the appearance of the opposing party.

m. Fully-equipped district libraries and conference rooms were established in various districts.n. A wireless system that facilitates the summoning of witnesses to criminal cases has been installed in

some districts.


o. Water coolers, washrooms, shaded areas, and fans were installed for litigants in consideration of thesmall and overheated courtrooms.

p. Information kiosks were established in many subordinate courts to inform litigants about court proce-dure, filing fees, and hearing dates.

PESHAWAR, PAKISTANa. Dialogues between members of the Bench and the Bar, and officers of the provincial governments, were

held to get their cooperation to the implementation of judicial reforms.b. A Bench-Bar liaison committee was established.

EAST KARACHI, PAKISTANa. An Annual Confidential Report (ACR)—a performance evaluation report and listing of all courts that

performed well—was adopted.b. Sanctions and penalties have been imposed following disciplinary proceedings for judges and other court

officers who receive poor evaluations.c. Training programs for lawyers were conducted by retired senior judges and senior lawyers.d. Bail fees have been lowered.e. Stay orders are no longer granted, except in the case of demolition and disposition.f. Amendments to the Code of Criminal Procedure and Code of Civil Procedure are being studied with the

objective of disposing of cases expeditiously.g. The separation of criminal and civil courts is being considered.h. Establishment of a federal court to deal with highly technical cases, such as commercial law cases, is

being considered.i. Implementation of programs for improved Bench-Bar relations has been commissioned.j. Shortening of process service has been commissioned.

■■■■■

Court Registries andProcess ServiceChallenges to Improving CourtRegistries and Process Service: ThePeshawar ContextMUHAMMAD TARIQAdditional Member, Inspection Team,Peshawar High Court, Pakistan

Court Registries in Pakistan per-form different functions at theHigh Court and District levels.The High Court Registry, headedby the Additional Registrar, re-

ceives and evaluates documents submittedto the High Court for preliminary hearing.Also, when the cases are scheduled for ahearing, the Registry secures the atten-dance of the parties involved in the particu-lar case. The High Court Registrar has cer-tain judicial functions as well, including re-jecting documents or ordering a dismissal

of a case where a party is in default. On theother hand, District Registries perform onlynon-judicial functions, including reviewingthe compliance with the formal require-ments for filing complaints, establishingand maintaining relationships between thecourt, the bar, and the public, and provid-ing attorneys and litigants copies of ordersand judgments.

Despite the fact that the High Court reg-istry is stronger than the district registry, nei-ther is well organized or properly equipped.They lack resources, equipment, and prop-erly trained staff. Unlike their counterpartsin developed countries, court registries inPakistan have no formal organization rela-tionships with the bar, media or civil soci-ety. Current reforms in Pakistan seek to ad-dress these problems:• Bench-Bar Liaison Committees (BBLC)

and Citizen-Court Liaison Committees(CCLC) have been established at theDistrict Level to formalize the relation-ship between the courts, the bar, andcivil society and expedite the disposalof cases.

Unlike their

counterparts in

developed

countries, court

registries in

Pakistan have

no formal

organization

relationships

with the bar,

media or civil

society.

■■■■■


• Information kiosks have been placedin almost half of the districts of NWFPprovince so the public can obtain in-formation regarding their cases.

• An Office of District Court Administra-tor has been planned by the PeshawarHigh Court. The pilot project, which isunder review by the provincial govern-ment, will authorize one of the civiljudges in each of the major districts toact as District Administrator.

• Judicial training programs have beeninitiated by the Peshawar High Court tobuild capacity and supplement the un-der-resourced Federal Judicial Acad-emy, which lacks proper facilities but iscurrently the only judicial training in-stitution in Pakistan.

• Joint planning sessions involving dis-trict judges, ministerial staff, and pro-cess serving agencies are being encour-aged by the Pakistan High Court.

• Computers and printers have been pro-vided to nearly half of the courts in Pa-kistan, and the remaining half will soonbe provided these facilities as soon asfunding becomes available. The com-puters are part of a larger plan underthe Access to Justice Program to auto-mate court processes, the first phase of

which involves the automation of thesuperior courts, followed by the districtcourts.

Process ServiceThe provision of service of process in NWFPneeds significant reform. Currently, the pro-cess serving agency is headed by the CivilNazir, who is assisted by the Naib Nazirs,the bailiffs and process servers, who executethe court processes. While both process ser-vice for both civil and criminal suits needsreform, the remainder of the paper focuseson the civil aspect of service of process.

The ADB recently conducted a study onthe challenges confronting process service.First, process servers tend to have a largeworkload and receive little compensation.Process servers rank as the lowest grade ofgovernment official1. Under the law and thehigh court rules, process servers are paidfrom the revenue generated by the processfees, which are very low. Process servershave insufficient logistical support. Theyreceive little or no training, so that manydo not know what a summons is when theybegin work. The poor monitoring systemcompounds the problem. Further, there is ashortage of process servers.

Peshawar High Court has embarked onreform programs, taking into account therelevant existing laws and the ADB reportand recommendations on process service.The Peshawar High Court has alreadyamended the Civil Procedure Code and theHigh Court Rules & Orders. The remainingrecommendations for reforms have been for-warded to the provincial government aswell as the federal government, including arecommendation to upgrade the posts ofprocess servers from Grade 1 to Grade 4, thatof bailiffs to Grade 5, and that of Naib Nazirsto Grade 7. It is interesting to note that aprocess server is called a “piada,” in Urdu,which means “a pedestrian, a man whowalks on foot.” Part of the reform programincludes providing process servers withvehicles to facilitate conveyance. Staff hasbeen hired to strengthen the process serv-ing agencies. The Peshawar High Court hasheld training sessions for process serversand bailiffs. Each and every district has alsobeen encouraged to hold its own trainingsessions at the district level. The monitor-ing system has streamlined the process ofreporting. Each Senior Civil Judge justice

“It is interesting to note that aprocess server is called a piada,in Urdu, which means apedestrian, a man who walks onfoot. Part of the reform programincludes providing processservers with vehicles to facilitateconveyance. Staff has been hiredto strengthen the processserving agencies. The PeshawarHigh Court has held trainingsessions for process servers andbailiffs.”

Muhammad TariqAdditional RegistrarPeshawar High CourtPakistan

Mr. Muhammad Tariq is an Additional Member Inspection Team of the PeshawarHigh Court of Pakistan. He is a focal person for the Asian Development Bank-supported Pakistan Access to Justice Program, as well as an Additional Districtand Session Judge. He remains civil judge and magistrate and senior civil judgeat different stations of the province.

Larry Ram

os


has been asked to send a monthly report onthe performance of their individual processservers and actions taken against default-ing process servers, if any. The PeshawarHigh Court then issues a report about theperformance of each process service agencyof the province. During the past two years,forty process servers have been punishedfor default in executing the summons.

Karachi East Strategies forImproving Process ServiceHON. ZAFAR AHMED KHAN SHERWANIDistrict and Sessions JudgeKarachi East, Pakistan

The judicial system relies uponproper service of process to pro-tect the due process rights of de-fendants. Current reforms in Pakistan aim to preserve defend-

ant’s rights by ensuring that service of pro-cess is carried out effectively and its integ-rity is maintained and protected.

The process service department of thepolice was transferred to the Deputy In-spector General Investigation Branch,headed by the Deputy Inspector General ofthe Police (DIP). A formal program involv-ing all concerned district police officerswas implemented to systematize processservice in the district. The centralized pro-cess service division for criminal cases pre-pares a monthly report listing for each pro-cess service whether service was com-pleted fully and whether service processwas not successfully completely and why.Regular meetings are held with the DIP In-vestigation Branch to discuss the reports,evaluate the work of the process servers,and suggest means and procedures on howthe process serving agency could be fur-ther improved.

The civil process serving agency wasalso centralized and extensive training isbeing provided to the bailiffs responsiblefor civil process service. Lack of propertraining and systematized procedures re-sulted in unreliable process service andpoor record keeping. The reliability of pro-cess service will be greatly improved if thebailiffs have formal schooling and are givenproper training for carrying out their duties.

The first step taken in the Karachi districtwas to provide bailiffs with proper trainingby a competent judicial officer, typically thesenior civil judge who is also in charge ofthe process service agency. These trainingsteach bailiffs how to effect service appro-priately and efficiently and prepare reportson effective and ineffective service. Thesereports require plausible reasons for the ser-vice that was not effective. Bailiffs are ex-pected to submit a monthly efficiency re-port and are evaluated regularly. Complaintsregarding allegations of corruption, ineffi-ciency, or poor monthly reports will receiveimmediate administrative action.

The new agency infrastructure for civiland criminal process service along with theextensive training for the process serversthemselves is the first step to ensure im-proved delivery of justice and protectionof defendant’s rights in Pakistan.

Improving Court Registries andProcess ServiceRICHARD HOFFMANConsultant, The Asia Foundation

Every case starts in the court reg-istry. The registry, also called thechancellery or the clerk’s office,receives, accepts, monitors andretrieves all the documents for

every case. It conducts the initial review ofa case, it monitors the progress of the case,and ensures the timely entry of all docu-ments into a filing system, whether auto-mated or manual. Automated data process-ing and electronic filing methods may im-prove case flow and efficiency more readilythan manual registers. Manual registersmake it more difficult to monitor cases andspot those that deviate from standard pat-terns in order to address issues in a particu-lar case early and prevent long delays.

The court registry is in the best posi-tion to determine whether cases are pro-ceeding on schedule and to detect whichcases do not follow standard time patterns.The registry establishes the initial jurisdic-tion of the court by ensuring that the re-spondent or opposing counsel is properlynotified. The registry can only perform this

Service of

process must be

taken seriously

as a fundament-

al element of

the delivery of

justice.

Pragmatic

approaches are

needed to

improve the

effectiveness

and reliability of

process service.

There are three

principles for

improving

process service:

notification,

supervision, and

information.

■■■■■


function, however, if the judiciary treats itas a partner and entrusts it with the respon-sibility of monitoring the progress of casesand enforcing the policy of the court regard-ing the need for parties to proceed in atimely manner.

Further, the registry is often the first con-tact with the court system for many litigants.It must be available and capable to assist,but not advise, pro se litigants. The registrystaff can facilitate the filing process to en-sure that all documents are filed properlyand timely. However, it is improper for theregistry to provide legal advice. The regis-try also serves to protect judges from im-proper influences and communications byinterposing a barrier to prevent parties andattorneys from having direct contact withjudges. The focus of strategies to improvecourt registries should be on anti-corrup-tion strategies to maintain the fair and equaltreatment of each case.

Service of ProcessService of process must be taken seriouslyas a fundamental element of the delivery ofjustice. Pragmatic approaches are neededto improve the effectiveness and reliabilityof process service. There are three prin-ciples for improving process service: notifi-cation, supervision, and information.

A model process service establishes thecourt jurisdiction over the responding partyby properly notifying that party. The initialnotification of the suit must be by personalservice on the party, after which time, theopposing counsel can accept service. Per-sonal service is the preferable method, butalternative means of service are acceptable

if the server can show that the party is avoid-ing service, including posting, mailing, andpublication. In the future, electronic noticemay be instituted to supplement or replacetraditional mail.

Whether service is effected by bailiffsor other agents employed by court or byprivate process servers, effective court su-pervision is mandatory to prevent abuse.An integrated national system of processservice can be established with proper courtmanagement.

Bailiffs must receive the proper train-ing to ensure effective, efficient and timelyservice of processes. They should be edu-cated to appreciate the nature and purposeof their responsibilities as servers of pro-cess and the importance of service withinthe larger context of the delivery of justiceby the court system.

There has been increased interest inoutsourcing this function to private provid-ers. Properly organized and administered,the function can be performed well by non-court personnel but the court, normallythrough its administrative staff, or, if thereis no full-time administration, through theregistry, must supervise the service of pro-cess, or viewed more generally, the execu-tion activity. This is a function that has beencharacterized in almost all countries, at onetime or another, by significant corruption.Thus, designing an effective process-serv-ing and execution of judgment unit—whether it be within the courts, the execu-tive branch, or the private sector—requiresa great deal of planning and anticipation ofpossible problems, both in inadequate per-formance and in improper behavior.

Every case begins at the registry, which:

• accepts, receives, monitors and retrieves documents;• registers cases;• conducts the first review of a case;• monitors the progress of cases and ensures the timely

entry of all papers into a filing system;• monitors and detects cases which do not follow stan-

dard scheduling patterns;• assists, but does not advise, pro se litigants;• establishes a court’s initial jurisdiction by proper no-

tification of a respondent or his counsel; and• protects judges from improper influences by interposing a barrier to prevent parties and attorneys

from having direct contact with judges.

Muh

amm

ad B

ilal


OPEN FORUMOn Improving Court Registries andProcess ServiceProcess Service• Process service is crucial to initiating the judicial process.• Proper record keeping of process served is required to prevent false allegations by the recipient party that

process was not properly served and/or that they did not receive notice of the suit.• Supervision of the process service is necessary to ensure that the process servers perform their work

honestly and efficiently and to identify deficiencies.• Judges and registrars should examine and audit their records regularly to avoid and prevent irregularities,

and to address such irregularities in a timely manner. Spot checks could be instituted to ensure that theprocess servers faithfully fulfil their duties.

• Proper funding is required to ensure that process servers have expertise. Greater efficiency of processservice in developed countries can be largely attributed to greater availability of funding.

• Incentive structures must be analyzed to identify causes for delays or failure of service of process.Potential benefits to parties and/or financial and strategic advantages to delaying service must beconsidered.

CREATION OF SPECIALIZED COURTS AND INCREASING THE COST OF LITIGATION• Specialized courts, including separate criminal and civil courts and separate pre-trial and trial courts, may

speed disposal of cases.• Increasing court fees and trial costs may deter litigants from pursuing baseless claims and thus alleviate

some of the court congestion. There was concern, however, that access to justice should not be predicatedon the ability to pay court fees.

• Example: Singapore. Trial costs are high and calculated on a per day basis. However, the Singaporemodel works because the country has resources to ensure proficiency in processing the cases.

Information Dissemination• Court rules and procedures must be systematically and broadly distributed.• Information on legal and judicial reform programs must be centrally collected and compiled for dissemi-

nation. Some South Asian countries have moved toward centralized information registries by placingcourt information on their websites, such as www.ifes.org, www.karachieast.org.

• The Internet can facilitate the judicial process, by providing a central location for information storage anddissemination, and by providing automated court filing services. Karachi East’s website,www.karachieast.org, enables the relatives and friends of a person under illegal detention to obtain andfile an online form for a writ of release for the detainee. Electronic submissions are reviewed immediatelyby magistrates. Online filing represents a step toward achievement of justice at everyone’s doorstep.

■■■■■

Participants to the ADB Symposium on Access to Justice deliberate on strategies to improve court registriesand process services.

Printed in the Philippines

Asian Development Bank6 ADB Avenue, Mandaluyong City1550 Metro Manila, Philippineswww.adb.orgPublication Stock No. XXXX

About the Asian Development Bank

The Asian Development Bank (ADB)’s work is aimed at improving the welfare of thepeople of the Asia and Pacific region, particularly for the 1.9 billion who live on less than$2 a day. Despite the success stories, Asia and the Pacific remains home to two thirds ofthe world’s poor.

ADB is a multilateral development finance institution owned by 63 members, 45 fromthe region and 18 from other parts of the globe. ADB’s vision is a region free of poverty.Its mission is to help its developing member countries reduce poverty and improve theirquality of life.

ADB’s main instruments in providing help to its developing member countries are policydialogues, loans, technical assistance, grants, guarantees, and equity investments. ADB’sannual lending volume is typically about $6 billion, with technical assistance providedusually totaling about $180 million a year.

ADB’s headquarters is in Manila. It has 26 offices around the world. The organization hasmore than 2,000 employees from over 50 countries.

Previous Law and Policy Reform at the Asian Development Bank Annual Publications

• Law and Policy Reform at the Asian Development Bank 2003Report: RETA on Judicial Independence

• Law and Policy Reform at the Asian Development Bank 2001–2002A Guide to Movables Registries

• Law and Policy Reform at the Asian Development Bank 2001Report: RETA on Legal Literacy for Supporting Governance and Poverty Reduction

• Law and Policy Reform at the Asian Development Bank 2000, Vol. IIReport on Insolvency Law Reforms in the Asian and Pacific Region

• Law and Policy Reform at the Asian Development Bank 2000, Vol. IReport on Secured Transactions Law Reform in Asia: Unleashing the Potential of Collateral