Had our normal judicial system been efficient, we might not have seen the institution of military courts in the country, courts that violate Article 175 of the Constitution, which stipulates separation of the executive and judiciary. A war-like situation created by terrorists somewhat justifies the establishment of military courts and that too for a short period of time. This short cut, however, should not make us oblivious to much-needed long-term measures to reform our glacially slow judicial system, which has alienated the masses from the state and created despondency among the people.
Tens of thousands of civil and criminal cases have been lingering in courts across the country for years, some dating back to more than 40 years. At the end of 2014, for instance, more than 100,000 civil and criminal cases were pending before the Lahore High Court (LHC), including those dating back to the 1960s. Almost the same number of cases was pending before the lower courts of Lahore during the same year. One major reason, but not the only one, seems to be the shortage of judges and huge workload on them at all tiers of the judiciary. In 2014, the LHC, with the strength of 49 judges, received on average 500 new cases per day. At this rate, an LHC judge ideally needs to hear and decide more than 2,200 cases (old and new combined) in a year to clear the backlog, a task that can be accomplished only by a superhuman. Can we expect a competent lawyer to fight as many cases during a year?
The approved strength of judges in the judiciary at all levels is less than what is required for prompt settlement of cases. Even a significant number of the sanctioned strength remains vacant in high courts and lower courts. The LHC was short of at least 11 judges against its sanctioned strength during the last year and the city’s lower courts were short of more than 100 judges. In Sindh’s lower judiciary, more than 30 positions were vacant at the end of the 2014. The lackadaisical attitude of the police, lawyers and judges is another main factor behind our slow motion justice administration. When the issue of slow, protracted judicial process is raised, all the concerned parties — judges, lawyers and police — pass the buck onto each other. The reality is that all of them are responsible for this state of affairs besides the government that has failed to make laws to reform the system.
In criminal cases, the police get the blame, and rightly so, for using delaying tactics in appearing before the courts despite repeated summons and undue delays in the submission of charge sheets. For instance, during the first six months of 2014, the Rawalpindi police failed to complete the charge sheets of 3,576 registered cases out of a total 9,812 registered criminal cases. Radical steps are needed to reform the police investigation department, which is marred by shortage of manpower, incompetence and corruption. In civil disputes, however, judges and advocates solely share the responsibility for procrastination as the police has no role in civil matters. The judges are not strict enough while lawyers have a vested interest in dragging their cases. Lawyers keep obtaining adjournments and stay orders from the courts.
Even anti-terrorism courts have failed to deliver speedy justice. They do not decide cases as speedily as was originally envisioned in the law that they would hear cases on a daily basis and decide them within seven days. The cases are dragged in these courts for months and years. Furthermore, appeals against the judgments of anti-terrorism courts remain pending in the superior courts for a long time. For example, at the end of 2014, 482 appeals against the verdicts of anti-terrorist courts were pending in the LHC, including 454 appeals dating back to 2011. It is claimed that witnesses fear to depose against terrorists and judges fear to announce verdicts. Despite knowing this situation for a long time, the government has not taken a single step towards providing safety to witnesses and judges.
In recent years, the higher judiciary has taken some measures to accelerate justice delivery but either its directions were not implemented or its measures proved to be merely baby steps that hardly made palpable difference to a chronically ill system. In July 2009, the National Judicial Policy called for the settlement of most civil and criminal cases within four months to a year. Both bar and bench did not follow the policy. Simple inheritance cases take years for adjudication. In December 2014, 3,345 bail applications and around 600 applications for cancellation of bail were found pending in the LHC for more than the last two years. Under the judicial policy, a high court was to decide a bail application within seven days and cancellation of bail within 15 days. The Supreme Court (SC) has recently announced it will clear the backlog of criminal cases by the end of May 2015. If the SC achieves this goal, it will set an example for the high courts and the lower judiciary.
After the Peshawar incident, the SC has also directed anti-terrorism judges to hear cases on a daily basis as the law has required. The present government is considering the creation of alternate courts of arbitration for civil disputes before these cases are brought before civil judges. This is in line with the rulers’ old habit of creating parallel courts instead of reforming the existing system. The government can make existing civil courts efficient by increasing the strength of judges. Furthermore, a law should be made to fix a timeframe for the settlement of a case and penalise those responsible for delay. There is no alternative to a normal judicial system that can provide cheap and speedy justice to all citizens without compromising on due process and legal procedures.
If the present judicial system is not reformed, lawlessness and violence will keep rising. When people lose faith in the judiciary, they take the law into their own hands. Our society desperately needs a smart and just dispute resolution mechanism. This is the requirement of a democratic, humane society.
The writer is a freelance columnist