Reforming judicial system

Huzaima Bukhari & Dr. Ikramul Haq

It is a fact that nothing worthwhile has been done by Legislature—no matter whether under civilian or military rules—to bring fundamental changes in the existing exploitative, anti-people, elitist structures and replace outdated laws that are the real malady leading to non-delivery of services to the citizens. 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 an urgent need for replacing the prevalent, decayed and disintegrating structures with modern and efficient models working successfully in other countries with active people’s participation. Since independence, we have failed to reconstruct/modernise/democratise our obsolete state institutions, and judiciary is no exception.

Mere cliché and rhetoric about reforms, as we have been hearing for a long time, will never serve any purpose. Mentioning about dearth of competent judges, delays in dispensation of justice, huge pendency etc alone is not enough—these are just symptoms of a very ailing system. The issue is that of a correct prescription for cure. Curing the symptoms without removing the root causes of illness will remain an exercise in futility. For example, how tax cases are decided in our country can be illustrated in the light of Supreme Court’s decision in the case of Assistant Collector of Central Excise & Land Customs v. Mst. Siddiqan Afzal & Others [2007 P T D 1485]. This is a classic case of inefficiency and apathy on the part of the tax department and inordinate delay in dispensation of justice in Pakistan. The honourable apex court after taking into account the legal and factual positions held:

“Show cause notice to owner was issued after fifteen years of seizure of gold and eight years after coming into force of the Customs Act, 1969, gold now become liable to be returned to owner after two months of coming into force of Customs Act, 1969 as no notice was issued within the time prescribed.”

For this act of blatant maladministration, the tax department in any civilized society would have been taken to task by asking to pay substantial pecuniary damages to the family. The accused passed away during litigation and his widow was unnecessarily and compulsively dragged in a long-drawn legal battle, which must have not only been costly but also agonizing for her. This exposes the efficacy of our tax judicial system. It is simply shocking that in a case where proceedings started in 1963 were finally settled in 2007. This is just one example. There are many others that can also be quoted. In a case reported as Crescent Distributors v. Customs, Excise & Sales Tax Appellate Tribunal & Others (2009 PTD 148), a simple dispute relating to whether a particular chemical item was exempt from sales tax or not was eventually decided in favour of the taxpayer after 9 years of struggle in Sindh High Court! Considering that sales tax law is applied on daily transactional basis it is indeed a pity that it took such a long time for the taxpayer to seek justice for a consignment imported almost nine years back.

Table A: Consolidated statement showing pendency, institution and disposal of cases during the period 1-15th June, 2020 in the Supreme Court of Pakistan, Federal Shariat Court, High Courts and District Judiciary

Superior Courts	Pendency	Institution during the period	Disposal during the period	Balance
Supreme Court of Pakistan	44,939	446	260	45,125
Federal Shariat Court (Upto 31st May, 2020)	200	0	0	200

Name of Courts	Old Cases Filed upto 31-12-2011			New Cases Field from 1-1-2012				Old + New (Grand Total)
High Courts	Pend	Disp	Bal	Pend	Inst	Disp	Bal	Pend	Inst	Disp	Bal
Lahore High Court	8,196	154	8,042	181,483	5,139	6,253	180,369	189,679	5,139	6,407	188,411
High Court of Sindh	12,823	4	12,819	70,849	943	261	71,522	83,672	943	265	84,341
Peshawar High Court	2,638	4	2,634	35,680	885	735	35,830	38,318	885	739	38,464
High Court of Balochistan	69	0	69	5,249	104	109	5,244	5,318	104	109	5,313
Islamabad High Court	620	4	616	15,165	221	155	15,231	15,785	221	159	15,847
Total (High Courts)	24,346	166	24,180	308,426	7,292	7,513	308,196	332,772	7,292	7,679	332,376
District Judiciary	Pend	Disp	Bal	Pend	Inst	Disp	Bal	Pend	Inst	Disp	Bal
District Judiciary, Punjab	9,508	1	9,507	1,255,926	120,760	99,072	1,277,614	1,265,434	120,760	99,073	1,287,121
District Judiciary, Sindh	621	13	627	101,732	10,120	7,027	104,831	102,353	10,120	7,040	105,458
District Judiciary, KPK	409	3	405	202,558	24,657	15,815	209,620	202,967	24,657	15,818	210,025
District Judiciary, Balochistan	47	0	47	16,415	1,166	628	16,953	16,462	1,166	628	17,000
District Judiciary, Islamabad	1,204	0	1,204	42,018	929	227	42,720	43,222	929	227	43,924
Total (District Judiciary)	11,789	17	11,790	1,618,649	157,632	122,769	1,651,738	1,630,438	157,632	122,786	1,663,528
Grand Total (Supreme Court, Federal Shariat Court, High Courts and District Judiciary)								2,008,349	165,370	130,725	2,041,229

The difference is reported due to transfer, re-opening/restoration, remand and in case where leave to appeal is granted.

The latest data available on the website of Law and Justice Commission of Pakistan (L&JCP), show huge pendency of 2,041,229 cases during the period 1-15th June, 2020 in the Supreme Court of Pakistan, Federal Shariat Court, High Courts and District Judiciary. In the Supreme Court alone the pendency was of 45,125 cases. In 2018 [Table B] for the period 1-30 September 2018, total cases pending were 1,810,745 while Supreme Court had a pendency of 40, 243.  

The data by L&JCP [Tables A & B] confirm that pendency has been increasing as every week/month more cases are filed than disposed—choking the justice delivery system. Despite this critical situation, no emergent plan has been prepared to deal with it. No effort whatsoever has been made till today for reducing the backlog and removing the causes of unnecessary litigation.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 alternate dispute resolution and/or fast-tracks follow up using the offices of magistrates at grass root levels.

Table B: Consolidated statement showing pendency, institution and disposal of cases during the period of 1st—30th September, 2018 in the Supreme Court of Pakistan, Federal Shariat Court, High Courts and District Judiciary

Superior Courts	Pendency	Institution during the period	Disposal during the period	Balance
Supreme Court of Pakistan	40,871	988	1,637	40,243
Federal Shariat Court	500	6	84	422

Name of Courts	Old Cases Filed upto 31-12-2011			New Cases Filed from 1-1-2012				Old + New (Grand Total)
High Courts	Pending	Disposed	Balance	Pending	Instituted	Disposed	Balance	Pending	Instituted	Disposed	Balance
Lahore High Court	10,300	243	10,057	151,172	14,705	10,419	155,458	161,472	14,705	10,662	165,515
High Court of Sindh	16,254	268	15,993	76,896	3,023	3,745	76,176	93,150	3,023	4,013	92,169
Peshawar High Court	3,426	27	3,399	26,279	1,192	1,246	26,225	29,705	1,192	1,273	29,624
High Court of Balochistan	306	11	295	6,549	342	344	6,547	6,855	342	355	6,842
Islamabad High Court	1,403	24	1,377	15,412	818	577	15,708	16,815	818	601	17,085
Total (High Courts)	31,689	573	31,121	276,308	20,080	16,331	280,114	307,997	20,080	16,904	311,235

District Judiciary	Pend	Disp	Bal	Pend	Inst	Disp	Bal	Pend	Inst	Disp	Bal
District Judiciary, Punjab	10,938	174	10,783	1,062,104	235,960	214,440	1,084,759	1,073,042	235,960	214,614	1,095,542
District Judiciary, Sindh	1,151	143	1,107	100,237	23,435	23,717	99,952	101,388	23,435	23,860	101,059
District Judiciary, KPK	408	50	386	202,595	45,309	38,556	209,598	203,003	45,309	38,606	209,984
District Judiciary, Balochistan	96	5	92	14,203	4,134	4,460	13,877	14,299	4,134	4,465	13,969
District Judiciary, Islamabad	906	7	914	37,070	10,713	10,406	37,377	37,976	10,713	10,413	38,291
Total (District Judiciary)	13,499	379	3,282	1,416,209	319,551	291,579	1,445,563	1,429,708	319,551	291,958	1,458,845
Grand Total (Supreme Court, Federal Shariat Court, High Courts and District Judiciary)								1,779,076	340,625	310,583	1,810,745

Neither Legislature has so far reviewed/updated laws/regulations for effective/speedy justice system, nor has judiciary prepared/presented any concrete plans to discard the outdated procedures suggesting the federal/provincial governments to establish ‘Fast Track Courts’, as was done by many countries.

Chief Justice (retired) Saqib Nisar when in office lamentably noted that even after getting extraordinary salaries and facilities, the judges were not delivering. Speaking about inordinate delays in deciding cases, he remarked that its responsibility “lay on me and all the judges collectively”. Even after admitting responsibility, it was a pity that no remedial measures were taken by him or his successors. The cases of higher judiciary (getting extraordinary emoluments and perquisites) and Federal Board of Revenue (with double salary package) confirm that mere extraordinary salaries and perks cannot improve the system. One needs skilled manpower, efficient network, automated procedures and strong system of checks and balances weeding out those who fail to deliver.

Devising speedy justice system is a daunting challenge in Pakistan due to large pendency, frivolous cases where filers go unpunished, frequent adjournments, administrative highhandedness forcing people to go to courts, outdated procedures, and of course paucity of competent judges. The existing inefficient and outdated judicial system is exploited by money power that hires “crafty” lawyers, many of whom are part of law houses of relatives of serving judges, to get justice delayed/destroyed/maneuvered. Slogans such as independence of judiciary and justice for all in Pakistani milieu have proven to be mere clichés—even in the wake of restoration of pre-November 3, 2007 judiciary through popular mass campaign. The much-publicised National Judicial Policy 2009 also proved to be just an attempt to cure the symptoms as no efforts have been made till today to make meaningful and effective structural changes removing the causes of illness—the reasons for unnecessary litigation as state functionaries do not follow law, rules and regulations or have failed to check in time violations committed by citizens/private parties.

In Overhauling justice system [Business Recorder, December 1, 2017], it was highlighted that: “In the process of revamping our justice system there can be two choices; reform the existing system or introduce an entirely new structure. A national debate is needed on this issue. In a democratic setup it is necessary to debate a question of such a sensitive nature having far reaching effects on dispensation of justice and independence of judiciary. A thinker rightly pointed out that: It is better to debate a question without settling it than to settle a question without debating it – Joseph Joubert (1754 – 1824).

The following issues must be debated vis-à-vis problems faced by the present judicial system:

Prevalent Problems:

• Quality of adjudicators/judges
• Selection process
• Delays – due to heavy pendency or irrational distribution of work
• Ineffective controls and poor management
• Cumbersome and time-consuming procedures.

Objectives for change:

• Need for professional adjudicators/judges
• Selection through parliamentary process
• Simple and cost effective procedures and rapid disposal of cases”.

Matthew C. Stephenson of Harvard Law School in his paper, Judicial Reform in Developing Economies: Constraints and Opportunities, aptly observed that: “….correcting some but not all market imperfections may lead to social welfare reductions, not that it necessarily will do so. And, even when partial reform does have counterproductive effects, these problems may be short-lived if the initial incremental reform efforts are followed by more extensive reform of other institutions. The important lesson is that individual reforms cannot be considered in isolation, and that we can and should draw on the tools of economic analysis, applied in a particular context, to try to identify situations in which certain institutional reforms that appear to be movements toward an unachievable first-best world will actually move us away from an achievable second best”.

Article, Judicial Reforms ‘under pressure’ by João Paulo Dias, Conceição Gomes,published in Utrecht Law Review, provides insight for judicial reforms in a situation like the one faced by Pakistan for years. It says: “The reform of the judicial map, if correctly planned and executed, should also have included adequate links between the judicial services and Alternative Dispute Resolution (ADR) mechanisms, such as legal advice and information, mediation and arbitration services. This would have involved not only studying and estimating the need for these services under the new geographical organisation to ensure even coverage, particularly in municipalities that would be deprived of a court or in cases where the courts were more distant, but also ensuring that information was made available on the options provided for citizens (including legal professionals). Moreover, although some services which offer mediation may be involved in court cases and therefore require special links with the courts, this was not adequately planned or resolved in the years which followed”.   

In our case, even 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 neither been adopted nor successfully implemented, what to speak of structural reforms and updating of procedures. We all know the issues faced by our decadent, near-to-collapse judicial system, namely, complexity of procedures, outdated methods, lengthy hearings, highhandedness of public functionaries that is passing of illegal/unlawful orders, declining 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. All those having vested interest in the existing system will never reform it.

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. 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 drastic decrease in litigation. It is painful that presently the governments are the main litigants. They usurp the rights of people and then drag the poor citizens in courts. We all know the reasons for this morbid state of affairs but nobody wants to fix it. Judicial reforms do not stipulate asking for more judges and funds but eliminating unnecessary litigation and quick disposal and to help reduce its occurrence in the first instance.

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, military and civilian alike, have not considered any such initiative and judiciary has also not contemplated about it.

Parliament and successive governments have never tried to give priority to providing the country an efficient justice system. It is high time that we should move from clichés to pragmatism for judicial and other reforms. Competent men in each field of law can be hired as Additional Judges in terms of Article 197 of Constitution for 3-5 years to clear the entire backlog, while the permanent judges should be assigned the task of just taking up new cases and finalise the same within one year of their filing. This simple solution can go a long way to improve dispensation of justice and eliminating the mammoth backlog. Unless it is done, the justice system will remain choked and clogged.

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The writers, lawyers and partners in HUZAIMA, IKRAM & IJAZ, are Adjunct Faculty at Lahore University of Management Sciences (LUMS).