Need for all-out reforms

Huzaima Bukhari & Dr. Ikramul Haq

Every now and then, we keep on hearing from higher judicial echelons that the federal and provincial governments must run the affairs according to the Constitution of Islamic Republic of Pakistan [“the Constitution] and applicable laws/rules/regulations must be followed in letter and spirit. While this is an undisputable and uncontroversial command, there is also the need for ensuring all-out reforms in the justice delivery system that includes among others an end to the long-drawn costly and time-consuming litigation. As charity begins at home, the judiciary should take the lead and present itself as a role model for all other institutes/departments.

The people of Pakistan for the last many years, especially after 2009 restitution of judges who were unconstitutionally removed by a military dictator, have been hoping that the judicial system will improve, but in reality, it witnessed further deterioration with the passage of time. This fact is highlighted every time a new Chief Justice of Pakistan (CJP) takes oath, and on numerous other occasions by the higher judiciary and other stakeholders. Hundreds of thousands of cases are pending in various courts and tribunals. The justice system is admittedly choked, but neither the legislators nor the executive branch of the government is taking remedial measures suggested by Judiciary to make the system effective. We need fundamental structural reforms in the justice delivery system, which is sine qua non of any democratic dispensation, as well as requirement of the Constitution.

The right of access to justice is an inviolable fundamental right enshrined in the Constitution. This right must be understood in wider terms to include speedy dispensation, the right to be treated according to law, the right to have a fair and proper trial and the right to have an impartial court/tribunal. Justice therefore can only be done if there is an efficient system to settle the rights and obligations of litigants within reasonable time. Judiciary should not only be independent but also competent and efficient. 

The existing judicial system is abused by money power. People allege that the rich, through hiring expensive lawyers “distort” or “delay” justice. Slogans such as independence of judiciary and justice for all in our milieu have proved to be mere clichés. The much-publicised National Judicial Policy 2009 has also failed to achieve its objectives. This and other measures are viewed as attempts to cure symptoms and not removing the causes of illness. Critics say that until today, no concrete and meaningful efforts have been made for undertaking effective structural reforms aimed at removing the underlying reasons for malfunctioning of the dysfunctional justice delivery system.

It is an irrefutable fact that the poor and weaker sections of society find it difficult to get justice. Many cannot afford to pay fees to lawyers and bear other expenses. Even if they do manage funds by borrowing or selling their assets, have to wait for umpteen years to get final settlement of the disputes. The prevalent judicial system, they complain, only protects the rich and mighty offenders. The academicians and social activists allege that the “defenders” of the system—both bar and benches—resist any radical changes, as it would hurt their financial interests, benefits, huge perks etc. As stakeholders in the exploitative system, both judges and lawyers, according to them, will never go for complete restructuring aimed at benefitting common citizens i.e. elimination of causes of litigation. They argue that even after giving clear finding against highhandedness of state functionaries or wrong investigation in criminal cases, the heads of respective departments are not punished. In the end, they and those committing wrong should be taken to task, if the system is to work within the four corners of law.

It is a fact that during the last many decades nothing worthwhile has been done by Legislature, Executive and Judiciary to bring fundamental changes in the existing outdated, exploitative, anti-people and elitist structures designed by colonial rulers for their needs and interests. These structures and outdated laws/rules/procedures are the real maladies faced by us. There is no will to dismantle these and adopt world best practices. The reform agenda for Judiciary, Executive or Legislature based on patchwork here and there can never deliver, unless fundamental structural changes are made. There is an urgent 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 clichés and rhetoric about reforms, we have been hearing for a long time, have not served any purpose. Mentioning about dearth of competent judges, delays in dispensation of justice, huge pendency etc are not enough. These are nothing but symptoms of an ever-ailing system. The crucial question is: Do we have the will and a plan for removing the causes giving rise to these symptoms? Mere mentioning and addressing of the symptoms without removing their causes has proved to be an exercise in futility. Judiciary has never made public for open debate any concrete proposals, executable reform plans with clear time-lines to fix the system. The successive governments and parliaments have also never debated any agenda to provide an efficient justice system. It is high time that we should move from clichés to practical steps for reforming Judiciary, which is a vital organ of the State.

The available data confirms that every year 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 concrete efforts whatsoever have 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 developing countries have adopted e-system for filing of cases and their quick disposal through fast-track follow ups using information technology tools and taking e-courts and/or mobile courts at grass root levels.  

Even simple solutions like awarding costs to frivolous litigants, adjournment only in exceptional circumstances and active case management through computerised systems have not been adopted at lower levels, what to speak of structural reforms and updating of outdated laws, rules and procedures.

We all know the issues faced by our judicial system, namely, complexity of procedures, outdated methods, lengthy hearings, highhandedness of public functionaries that keep on making illegal/unlawful orders but never get punished for their wrongdoings, 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 after public hearing by a board of professionals and not by the serving judges, and trained intensively at a centre of excellence or a reputed university. It would help produce competent judges for higher courts in future.

Appointments of members in all the special tribunals must be through the same procedure as in the case of judges of High Courts and not by the Executive. The Chief Justice of Pakistan or any other Judge authorised by him or a committee appointed by him should look into appointments already made in these tribunals and incompetent members should be removed, declared unfit to sit on the special tribunals.

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 drastic reduction in litigation, thus no need of more buildings, additional judges, new cars, big bungalows etc for them.  Why is there enormous litigation? Obviously due to lack of enforcement of rule of law and educating the society to abide by rules and regulations as well as socio-economic justice to eliminate disputes and good policing to deal with criminal elements. It is hoped that the Prime Minister in consultation with the CJP 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—need to work hand-in-hand.

The issue of meaningful and result-oriented reforms as discussed above should not be confined to one pillar of State, the Judiciary, alone. It must be for all organs of State and society as a whole be made part of the process for which awareness campaigns are a prerequisite. The prevailing structures of Legislature, Executive, in fact, all areas of governance, are suffering from multiple maladies. The elitist, anti-people and power structures are the real cause of major problems faced by Pakistan. Unfortunately, there is no political party, including the present in power, willing to dismantle these structures. On the contrary, the ruling classes—militro-judicial-bureaucracy-clique, landed classes in assemblies/senate and wealthy businessmen-turned-politician, financed by unscrupulous traders and rent-seeking businessmen—stand united under one banner; maintenance of status quo ensuring that real power is never shifted to masses. Non-implementation of Article 140A of the Constitution for the last two decades testifies to it.

We have failed to democratise our State apparatus. The existing system is inherently exploitative and anti-people—the ruling elites thrive on people’s hard-earned money and use force of police, taxation and judiciary to keep them under control.  The empowerment of people politically and economically is the real essence of a true democracy but this would be a deathblow for the ruling classes. Thus, they work hand-in-hand to safeguard their mutual interests. In between, some in-fights among them do take place for grabbing more and more benefits and privileges, but they always strike deals to save their vested interest through a mutually-beneficial/exploitative system. They hoodwink the masses by slogans of change and/or reforms but are not ready to empower the masses. They know that the perpetuation of existing system alone can help them keep the masses subjugated.

For democracy, the sine qua non is accountability for all. Accountability must start from the judges who adjudge others. Judges must be above board—men of integrity, blameless, and free from all internal and external pressures. Since justice should not only be done but seen to have been done, the prime duty of a judge is to demonstrate this through his judgements and not by verbal exchanges in courts or statements on various occasions. The starting point of reforms in Pakistan should be accountability of all organs of State. 

In a State where the high-ranking civil and military officials and judges get state lands/ high-value urban plots etc as bounties, but do not make public declaration of assets owned by them and their close relatives, there cannot be hope for true democracy, rule of law and responsible governance. The civil society and media should come forward to force legislators to abdicate all laws of secrecy and demand unfettered right to information as enshrined in Article 19A of the Constitution, except matters related to State security etc. This would pave the way for accountability of all organs of State through independent bodies, as was done by China in March 2018 by establishing two new “super agencies” to separately regulate the public and the private sector. The “super agency” regulating the public sector is the National Supervision Commission (NSC) and one regulating the private sector is State Administration for Market Regulation (SAMR)—for details see [‘China’s lawfare against corruption—lessons for Pakistan’ by Hassan Aslam Shad & Dr. Ikramul Haq] 

In Pakistan, we have laws for declaration of assets and liabilities by government servants. The declarations are not made public to ascertain their present value and how they have been acquired. The same is the case of judges and generals. Their declarations must also be made public. In India, there was a sharp criticism over asset disclosures of the judges and their spouses. It was demanded that information about the assets of other close relatives, like sons and daughters, was also important in the Indian context. It is also critical in the Pakistani context as near and dear ones take advantage of positions of their relatives in power.

In India, the declarations, made under a Supreme Court resolution of May 1997, were criticised being only in partial conformity with the requirements laid down therein. It was campaigned that declarations, in fact, underlined the need for a law that “makes the disclosure mandatory and open to the public, lays down in detail what are the assets to be declared, how the disclosure is to be made and who all should come under its purview”. It was demanded by Indian civil society and media that the consequences of wrong declarations should also be specified. In Pakistan we need similar laws for judges, government officials, elected representatives and holders of public office.

The issue of accountability has assumed greater relevance in today’s Pakistan amidst allegations of political victimisation and gagging freedom of Press. The public and media must demand right-to-information about the sources of acquiring assets, especially lucrative plots from government on which no tax is paid under section 13(11) of the Income tax Ordinance, 2001 by mighty sections. In the light of Article 19A of the Constitution, it is now fundamental right of every citizen to know about the assets and tax declaration of persons holding any judicial position, government post or public office or where information is of public importance.  Even courts cannot curtail this fundamental right as Article 19A of Constitution says: “Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law”. This was explained by the Supreme Court of Pakistan in Watan Party & Others v Federation of Pakistan & Other PLD 2012 Supreme Court 292 as under:

“Article 19A has thus, enabled every citizen to become independent of power centres which, heretofore, have been in the control of information on matters of public importance….. Article 19A is a grant of the Constitution and, therefore, cannot be altered or abridged by a law enacted by Parliament…It, therefore, will not for this Court to deny to the citizens their guaranteed fundamental right under Article 19A by limiting or trivializing the scope of such right through an elitist construction whereby information remains the preserve of those who exercise state power.”

In the light of above, the civil society and medianeed to counter any move by the government, courts, parliaments—national or provincial—or any other organ/department of State to curtail this fundamental right in the garb of special secrecy laws, contempt of court law etc that cannot overrule this constitutional right. The true implementation of Article 19A of the Constitution is necessary if all the four pillars of State—Legislation, Judiciary, Executive and Media—have to be accountable to the public at large.

Right to information, access to public record and free availability of what is owned by privileged classes must be assured—this alone can help fight corruption, abuse or excessive use of powers and malpractices in all domains. As a first step, we need a comprehensive legislation for accountability of all powerful segments and reforms entailing setting up an independent and credible body for the appointment of judges, entertaining complaints against them, criminal investigation if they indulge in corruption, amendment of the Contempt of Courts Law by removing “scandalising and lowering the authority of the Court” from the definition of the phrase “contempt”, and implementation of right-to-information law to all organs of State, including the generals and judges, which is being thwarted by self-serving laws/rules framed by them that they have effective (sic) self-regulating bodies/laws/regulation for the same.

It is vital for open government and success/sustainability of democracy to go for all-out reforms rather than selective and cosmetic changes. Since dispensation of justice is the main pillar of democracy, the foremost need is elimination of unnecessary litigation and facilitating smooth running of affairs between the State and its citizens. It is highly lamentable that presently government departments are the main litigants. The functionaries usurp the rights of people and/or pass unlawful orders or act beyond jurisdiction and then drag citizens in courts. Thus, a national commission should be established to not only determine the reasons for this sorry state of affairs but also to suggest reforms to stop unnecessary litigation and ways for speedy disposal of cases as well as accountability of both public and private sectors as successfully done by China.

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The writers, lawyers and partners in Huzaima, Ikram & Ijaz, are Adjunct Faculty at Lahore University of Management Sciences (LUMS)