New CJP, old challenges  

Dr. Ikramul Haq

There are about 1.9 million cases pending in the country before all the courts put together and to handle such a huge number of cases there are only about 3000 Judges and Magistrates available from top to bottom. Successive governments have failed to suitably increase the number of Judges and Magistrates on account of financial constraints. 3000 Judges and Magistrates cannot handle 1.9 million cases even if they work for 36 hours a day—Address of Mr. Justice Asif Saeed Khan Khosa on January 17, 2019 in honour of outgoing chief justice

With the appointment of Mr. Justice Asif Saeed Khan Khosa as 26th Chief Justice of Pakistan (CJP) on January 18, 2019, there are expectations that the much-needed reforms in judicial system will take place as he has in-depth knowledge of maladies faced by it and possesses the desire to remove them. Former CJP Mian Saqib Nisar after taking oath as 25th CJP on December 31, 2016, though time and again stressed the need to fix the justice system but things further deteriorated till his retirement instead of improving. As pointed by new CJP, there exists a huge pendency of in various courts. In the Supreme Court itself pendency per judge as on 30-09-2018 was 2,367 cases.

It is a fact that nothing worthwhile has been done by Judiciary and Legislature to bring fundamental changes in the existing exploitative, anti-people, elitist structure that is the real malady. The reform agenda for judiciary, executive or legislature based on patchwork here and there can never succeed, unless fundamental structural changes are made. There is a need for replacing the prevalent, decayed and disintegrating systems with modern and efficient models working successfully in other countries. Since independence, we have failed to reconstruct/modernize/democratise our obsolete state institutes.

Mere cliché and rhetoric about reforms, as we have been hearing for a long time, will not serve any purpose. Mentioning about dearth of competent judges, delays in dispensation of justice, huge pendency etc alone is not enough—of course these are symptoms of a very sick system but where is prescription for cure? Curing the symptoms without removing the root cause of illness would be just an exercise in futility. No concrete proposals, executable plans and time-frames have come during the two-year tenure of Mian Saqib Nisar. Parliament and successive governments have also never tried to provide an efficient justice system. It is high time that we should move from clichés to pragmatism for reforms.

The available data confirms that every month more cases are filed than disposed—choking the justice delivery system. Despite this critical situation, there is no emergent plan to deal with it. No effort whatsoever has been made to remove the causes of unnecessary litigation and reducing/eliminating backlog. Our courts are still following the outdated procedures and methods whereas many countries have adopted e-system for filing of cases and their quick disposal through fast-tracks follow up using the offices of magistrates at grass root levels.  

It is pertinent to mention that the Eleventh Finance Commission of India recommended a five-year scheme for creation of 1734 Fast Track Courts (FTCs) for disposal of long pending cases and provided ₹502.90 crores as “special problem and upgradation grant” for judicial administration. The term of FTCs, established to expeditiously dispose of long pending, especially those of under trial prisoners, was to end on March 31, 2005. However, the Indian Supreme Court, which was monitoring the functioning of FTCs observed through Brij Mohan Lal Vs UOI & Ors that these should not be disbanded all of a sudden.  The Indian Government accorded its approval for the continuation of 1562 FTCs for a further period of 5 years. According to a report of BBC, the FTCs in India working since 2001 decided till 2012 “more than three million cases”. Our successive governments have not considered any such initiative and judiciary has also not pondered about it.

In our case, even the simple solutions like awarding costs to frivolous litigants,  adjournment only in exceptional circumstances, appeal by leave of court only, and active case management etc, have not be adopted, what to speak of structural reforms and updating of procedures. We all know the issues faced by our decadent judicial system, namely, complexity of procedures, outdated methods, lengthy hearings, highhandedness of public functionaries that is passing of illegal/unlawful orders, lowering standards of pleading and adjudication, rich parties taking advantage of law houses of relatives of serving judges (in India in terms of Rule 6 of Advocates Act, 1961 no relative of a judge can practice where the judge is serving). Unfortunately, in Pakistan, there is no political will to remedy these shortcomings/maladies.

An efficient justice system can only be established if efforts are made to produce highly competent adjudicators at lower level, who are recruited transparently by a board of professionals and not serving judges, and trained extensively at a centre of excellence or a reputed university. It will help produce competent judges for higher courts in future. All appointments of members in all the special tribunals must be through the same procedure. The Chief Justice of Pakistan or any other Judge authorised by him or a committee appointed by him should look into appointments already made on political basis in these tribunals and incompetent members should be declared as disqualified to sit on benches.

The main aim of judicial reforms should be elimination of unnecessary litigation and facilitating smooth running of affairs between the State and its citizens. Once both learn to act within the four corners of law, there would be no need for enormous litigation. It is painful that presently the government is the main litigant. It usurps the rights of people and then drags the poor citizens in courts. It is hoped that the apex court under new Chief Justice will establish a commission to determine the reasons for this morbid state of affairs and how to rectify the situation. The main purpose of judicial reforms should be ending unnecessary litigation and for this all the three pillars of State—Legislature, Executive and Judiciary—will have to work hand-in-hand.

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The writer is Advocate Supreme Court and Adjunct Faculty at Lahore University of Management Sciences (LUMS). Email: ikram@huzaimaikram.com; Twitter: @drikramulhaq