Daily Times

There is a negative public perception in regard to the judicial system, especially the subordinate judiciary, on account of systemic delays in disposal of cases and the fact of endemic corruption. From time to time many procedural changes have been made that have no doubt improved the speed of justice. However, the reality remains as it was: a huge backlog in all the courts and a number of years before the average case passes through each level of the judicial hierarchy. It is time to think of more radical reforms, more fundamental changes. Why should we not convert to a uniform three-tier system: trial court, appellate court and the Supreme Court. The three-tier system is already there for a number of special laws, e.g. banking laws, labour laws, and environmental laws. Let us abolish the civil courts and start the first tier with additional district judges recruited through a competitive examination process open to BA LLBs between 35 to 45 years of age with not less than 10 years practice or comparable legal experience. The appellate court should be the High Court. The civil revision jurisdiction could go. To cope with the backlog a sufficient number of additional district judges could be recruited on contract for, say, five years till the number of pending cases had been reduced to acceptable levels. Senior lawyers could also be appointed for a fixed five year term as ad hoc judges of the High Courts for tackling the backlog. The target should be for the average case to pass through the trial court stage within one year, and again not more than one year at the appellate stage. Inevitably there will be transitional provisions in moving from the current four-tier system to the proposed three-tier one but surely they can be overcome. The three-tier system will cut years from the final disposal of the average case. It will also greatly improve the quality of judgments because the trial court level will be manned by far more experienced judicial officers.

Even if a uniform three-tier system is not possible or feasible, an exercise should be carried out as to how many additional civil court judges, additional district judges and high court judges are required on the yardstick that the average case should pass through each of these three levels within not more than one year at each stage. Parliament should then be asked to allocate funds accordingly, keeping in mind that speedy access to justice for all is a fundamental prerequisite for good governance. The shortage of judges in the subordinate judiciary was brought to the notice of parliament and the government by the Supreme Court as far back as 2001 when in the case reported at PLD 2001 SC 1041, the court observed: “After separation of the judiciary from the executive more man-power is required. A civil judge is not only a civil judge but rent controller as well as Family Court and he has also been burdened tremendously with the disposal of criminal cases. This is not fair and this is one of the causes of delay.” Ten years having passed without adequate response. It is time that the Supreme Court passed order for affirmation action in this matter on the basis of the proposed exercise.

There are many honest, capable and hardworking officers in the subordinate judiciary. But the overwhelming public perception is that justice at this level is delivered on the basis of money or influence or both. Corruption in the subordinate judiciary, whether actual or perceived, erodes respect for those who have the high duty to adjudicate civil disputes, to punish the guilty and to exonerate the innocent. It alienates the common man and instils in him an ingrained feeling of injustice. It negates good governance. An in-depth discussion of the various forms and manifestations of corruption and the very many steps required to cope with this cancer is beyond the scope of this article. Nevertheless, without amplifying, a few suggestions are offered that may over time alleviate this grave and continuing threat to the integrity of our judicial system. These proposals, which may sound simplistic, are based on two premises. The first is that it is far easier and cost-effective to try and prevent corruption than to punish the corrupt, and the second is that corruption is, to a significant extent, a crime of opportunity. If you close or squeeze the window of opportunity, or make it dangerous to climb through this window, you can reduce corruption.

The first of these proposals is that when a case is ripe for arguments the district judge should transfer the case to any other court of competent jurisdiction including transfer from his own court if any of the parties applies for transfer. On such application, in which no reasons need be given for seeking the transfer, the transfer order should also direct the hearing of arguments and final order by the transferee court within, say, the next 10 days. This proposal, if implemented, could be coupled with an announced policy of taking administrative action in cases where more than a specified number of such transfer applications are received against a particular presiding officer.

Another proposal is that counsel for both parties should invariably be required to file their written arguments or at least a summary of arguments. This should effectively dissuade lower courts from not noticing arguments when writing judgments on other than the merits of a case. The proposal has the further advantage that it will save court time and eliminate disputes in appellate courts about whether a particular ground was urged in the court below. Hopefully this will also improve the level of assistance from the Bar. This proposal, like the previous one, could be coupled with a policy directive that whenever an appellate court comes to the conclusion that the reasoning of the lower court was perverse or in deliberate ignorance of law the appellate court shall report the matter to the competent authority for appropriate proceedings against the concerned presiding officer. Further to expedite the recording of evidence and disposal of cases, the oral evidence, i.e. examination-in-chief, should be allowed to be recorded through affidavits and cross-examination through Interrogatories and after such exercise where it is required by the court or parties that cross-examination of witnesses should be done in person then the further cross examination should be conducted by the presiding officer.

Public interest litigation on the basis of simple individual applications or suo motu notice taken by the Supreme Court itself has provided a speedy and effective remedy for violation of fundamental rights. Also, and very importantly, it has fostered the concept of participative justice, another key ingredient of good governance. There are, however, obvious practical limits to the number of cases that the Supreme Court, or even the High Courts, can entertain and adjudicate upon in exercise of such jurisdiction and consequently the emphasis has to be on judicial directions for remedial legislation and/or the exercise of executive power in a manner that promotes the public interest. One vital part of this is the regulation of the power or discretion of the government and its functionaries to distribute largesse including jobs, contracts, quotas, licenses and the like. The grant of such largesse must be structured on the basis of rational, relevant and non-discriminatory standards and norms. It is impossible for the superior courts to intervene in all the acts of injustice that take place in this domain throughout the country. At the end of the day there is no substitute for changes in the attitudes and practices of the executive organ of the state as a consequence of judicial directions, laws enacted by parliament and the provincial assemblies, pressure of the media and other opinion-makers, because only such basic changes at all levels of public administration can ensure better and good governance for the people as a whole.

The writer is a senior advocate Supreme Court, former governor Punjab and former federal minister. He can be reached at hamidlawassociates@gmail.com