Daily Times

We frequently hear from the higher echelons that all organs of state must act according to their boundaries, which are determined by the Constitution, and all should follow the rule of law. While this is undisputable; the Legislature, Judiciary and Executive accuse each other of breaching these constitutional boundaries all the time — none is ready to accept its own shortcomings and abide by the maxim ‘first reform thyself’. Those at the receiving end of ‘good advice’ ask: what has been done to end the agonizing process of long-drawn, costly and time-consuming litigation? According to the Law and Justice Commission of Pakistan (L&JCP), 1,857,340 cases were pending in all the superior and subordinate courts of Pakistan as on January 31, 2018.

The data compiled by L&JCP confirms that more cases are filed every month than disposed — choking the justice delivery system. Despite this critical situation, there is no emergent plan to deal with this. No effort whatsoever has been made to remove the causes of unnecessary litigation and reducing or eliminating the backlog. Neither the Legislature has so far reviewed or updated laws and regulations for a speedy justice system, nor has the judiciary presented any concrete plans to discard the outdated procedures and suggest that the federal and provincial governments establish ‘Fast Track Courts’, as was done in India way back in 2001.

The Eleventh Finance Commission of India recommended a five-year scheme for creation of 1,734 Fast Track Courts (FTCs) for disposal of long pending cases and provided Indian Rs 502.90 crores as ‘a 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 1,562 FTCs for a further period of five years. According to a BBC report, the FTCs in India which have been functional since 2001 decided till 2012 ‘more than three million cases’. Our successive governments, military and civilian alike, have not considered any such initiative and the judiciary has not considered it either.

The much-publicised National Judicial Policy 2009 was nothing but an attempt to cure the symptoms, as no efforts have been made until this day to make meaningful and effective structural changes to cure the illness

On December 15, 2017, the Indian Supreme Court approved a scheme prepared by Central Government to setup FTCs for pending criminal cases against all the Members Parliaments (MPs) and Members Legislative Assembly (MLAs). 12 FTCs started working from March 1, 2018 to ensure that 13,500 pending cases against 1,581 MPs and MLAs end within one year so that they continue as public office holders or leave the Houses after conviction. In Pakistan, there isn’t even any data about criminal cases against elected members, what to speak of their taking them on a priority basis.

Devising a speedy justice system is a daunting challenge in Pakistan due to pendency, frivolous cases where filers go unpunished, frequent adjournments, administrative highhandedness forcing people to go to courts, outdated procedures and paucity of judges. The existing inefficient and outdated judicial system is exploited by the powerful elite, which hires crafty lawyers to get justice ‘delayed, destroyed, or outmanoeuvred’. Slogans such as independence of judiciary and justice for all in Pakistani milieu have proved to be mere clichés — even in the wake of restoration of the pre-November 3, 2007 judiciary through a popular mass campaign. The much-publicised National Judicial Policy 2009 was nothing but an attempt to cure the symptoms, as no efforts have been made till today to make meaningful and effective structural changes to cure the illness. Since 2009, the backlog in all courts have increased manifold, as evident from data released by L&LJCP — High Courts had 298,142 pending cases and lower courts 1,520,485 as on January 31, 2018.

It is an irrefutable fact that the system denies access to justice to the poorer and weaker sections of society — they cannot afford to pay lawyers and wait for several years to get orders. Those having vested interests in the system will resist restructuring and fundamental structural reforms that would be beneficial for the common people. The existence of anti-people power structures, whether in the executive, judiciary or legislation, is the root cause of Pakistan’s problems. Unfortunately, no political party that has the agenda to dismantle these structures. On the contrary, the ruling classes — militro-judicial-civil-bureaucratic-complex, landed classes, wealthy politicians and unscrupulous businessmen — stand united under one banner; protection of the status quo, ensuring that the masses are not empowered.

For democracy, the sine qua non is accountability for all. Accountability must start from the judges who adjudge others. Judges must be competent, efficient, have integrity, and free from all internal and external pressures. Since justice should not only be delivered but seen to have been delivered, the prime duty of a judge is to demonstrate this through his judgements and not through verbal exchanges in courts or statements on various occasions. The starting point of reforms in Pakistan should be accountability of all organs of State. As a first step, we need comprehensive legislation for judicial accountability and reforms entailing setting up an independent and credible institution for the appointment of judges, entertaining complaints against them, criminal investigation of judges if they indulge in corruption, amendment of the Contempt of Courts Law by removing the words ‘scandalising and lowering the authority of the Court’ from the definition of ‘contempt’ and implementation of  right-to-information law for all organs of State, including the judiciary.

It is vital for the success of democracy to go for all-out reforms rather than patchwork or cosmetic changes here and there. For example, the judiciary is still following outdated procedures and methods, whereas many countries have adopted an e-system for the filing of cases and their speedy disposal through fast-track follow ups. Since dispensation of justice is the main pillar of democracy, the foremost need is elimination of unnecessary litigation.

It is regrettable that the government departments are the main litigants. They usurp the rights of people and pass illegal or arbitrary orders and then drag citizens through the courts. They don’t have to face any punishment for these illegal and unfair actions. The right of access to justice to all is a well-recognised, inviolable right enshrined in the Constitution of Pakistan. It must be read in wider terms to include speedy dispensation of disputed matters, 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 or tribunal. Justice therefore, can only be done if there is an efficient system to settle the rights and obligations of litigants within reasonable time. The Judiciary should not only be independent, but also competent and efficient. One hopes that in the coming days, the much-needed and long-ignored reforms are undertaken, to achieve these goals.

The writer, Advocate Supreme Court, is Adjunct Faculty at LUMS. Email: ikram@huzaimaikram.com; Twitter: @drikramulhaq

Published in Daily Times, March 25^th 2018.