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Challenges on judicial front  

Huzaima Bukhari & Dr. Ikramul Haq

The judiciary worked tirelessly to provide justice to the people with less resources. 3,100 judges worked hard and decided 3.6 million cases in a year. Judiciary decides all the cases on merit and does not differentiate between the rich and poor—Chief Justice of Pakistan

The Chief Justice of Pakistan (CJP), Justice Asif Saeed Khan Khosa, while addressing the inauguration ceremony of mobile-app SC Call Centre, complete video-link facility in five courts as well as Research Centre, in Islamabad on November 20, 2019, made it clear that the present judiciary cannot be compared with the one that existed prior to 2009. This reference was very significant besides his warning to the incumbent Prime Minister not to undermine the judiciary as an institution.

The CJP said that the current judiciary should not be compared to that of pre-2009 era as “it is free now”. “For us, no one is either big or small or powerful”, he added. We convicted one prime minister and disqualified another. A (former) chief of army staff’s case is about to be decided soon. Are these examples not in front of you? For us, only the law is powerful,” he said. He emphasised that the dedication and impartiality of the institution should be respected, saying: “Nobody is perfect. No institution, no human being is perfect. But if some people are working with such dedication, please encourage and facilitate them”. The CJP asked the Prime Minister to review his statement and balance it with the role being played by the judiciary in accordance with law.

The Chief Justice of Pakistan remarked: “Don’t give us this taunt referring to ‘the powerful’. Nobody is powerful before us (the judiciary) other than the law itself”. Referring to former prime minister Nawaz Sharif’s foreign travel on medical grounds, Chief Justice of Pakistan reminded Prime Minister Imran Khan that it was he and his cabinet that agreed for ‘someone’ to travel abroad, so it should not be said that “the judiciary was the sole authority in the matter”.

A day earlier, the Prime Minister said in an indirect reference to Nawaz Sharif’s travel to London that “there are separate laws for the weak and powerful in the country, requesting the CJP to deliver prompt justice” for which he is ready to provide funds and whatever other support was required.

Since its inception, politicians allege that Pakistan has been facing a daunting challenge of establishing constitutional supremacy. Long military rules and in between experiments of “controlled democracy” denied the people of Pakistan their sovereign right of self-governance, for which many lost their lives, property and relatives to secure independence from the British raj. The long dictatorial rules muzzled all the State organs—especially judiciary that became an approving arm for many unconstitutional rules till 2007. Even during the Decade of Democracy [2008-18], the judiciary on many occasions allegedly encroached upon the powers of Legislature and Executive. The judicial defiance of March 9, 2007 gave hope to people but soon it faded away when after restitution on March 16, 2009, the apex court started stifling the Legislature and Executive. The elected representatives were even forced to amend the method of selection of judges of superior courts. Many were disqualified without fair trial guaranteed as fundamental right under Article 10A of the Constitution. Powers under Article 184 read with Article 187 of the Constitution were selectively used. The glaring example is that of Asghar Khan’s case [Human Right Case No. 19 of 1996] where years were taken to decide the issue. Till today implementation of the order is not made by the mighty proving that law is different for the weak and powerful.

The CJP while welcoming the prime minister’s statement for offering resources for improvement in the judicial system said: “The prime minister is the chief executive and an elected representative and we welcome his offer”. The CJP lamented that the judiciary was working without proper resources and only 3100 judges gave verdicts in hundreds of thousands cases last year. “If one high-profile case gets highlighted by media then it does not mean the 3.6 million cases by a mere 3,100 judges should be forgotten,” CJP added.

The CJP said that they did not ask for additional funds, did not ask for raise in the annual budget and most importantly, they did not ask for any legislation for bringing improvement in the judiciary, but launched various gigantic projects within their own resources. Therefore, the chief justice said that a segment in society instead of criticising the judges should laud their role for dispensing speedy justice.

Chief Justice of Pakistan mentioned that in 187 working days, the judiciary had concluded some 73,000 trials besides disposing of a large number of criminal cases, pending since 1994. “The appeals filed in these criminal cases, majority of them were of poor and weaker people,” the CJP said, adding that all are equal in the eyes of law. The CJP said that in 23 districts of the country, there is not a single case of narcotics pending. He said that in 20 districts, there is no family matter case pending and in 29 districts, there is not a single case of rent appeal pending as well. Moreover, the CJP said that the Supreme Court also took steps for police reforms and post of SP Complaint cell was created in each district that has also reduced 30 percent burden of cases on district courts and 15 percent on high courts.

Chief Justice of Pakistan, Justice Asif Saeed Khan Khosa is scheduled to retire on December 20, 2019. He took oath of the office on January 17, 2019 as 26th Chief Justice of Pakistan. In his inaugural address, he made a pledge to clear the huge back log.  His predecessor 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, did not take any concrete steps for the same—things in fact further deteriorated on his retirement instead of improving as CJP Justice Asif Saeed Khosa in his address on January 18, 2019 after taking oath pointed out that huge pendency in various courts was the real challenge.

It is a fact that during the last many decades nothing worthwhile has been done by Judiciary and Legislature to bring fundamental changes in the existing exploitative, anti-people, elitist structures—our 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 the 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 came 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-track follow ups using the offices of magistrates at grass root levels.  

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 been 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 Prime Minister in consultation with the outgoing 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—will have to work hand-in-hand.

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

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