Daily Times

Since taking the oath on December 31, 2016 as 25th Chief Justice of Pakistan (CJP), Mian Saqib Nisar, repeatedly stressed the need for speedy justice, but near to his retirement (January 18, 2019), things have deteriorated, instead of improving. According to the data available on the website of the Law and Justice Commission of Pakistan (L&JCP), there was a huge pendency of 1,810,745 cases in various courts as on September 30, 2018 — by the end of 2019, 300,000 plus cases would be added. In the Supreme Court itself, total pendency was of 40,243 cases (2,367 cases per judge). It has proved that mere good intentions could not bring efficacious dispensation of justice — it requires concentrated efforts and comprehensive structural reforms.

The data by L&JCP confirms that every 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 to remove the cause of unnecessary litigation and reduce the backlog. Our courts are still following the outdated procedures and methods whereas many countries have adopted e-system for the filing of cases and their quick disposal through fast-tracks follow up using the offices of magistrates at grass root levels. 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for effective/speedy justice system, nor has judiciary prepared/presented any concrete plans to discard the outdated procedures suggesting the federal/provincial governments to establish ‘Fast Track Courts’ as was done in India way back in 2001.

Many months back, the CJP lamentably noted that even after getting extraordinary salaries and facilities, the judges were not delivering. Speaking about inordinate delays in deciding cases, the CJP remarked that its responsibility “lay on me and all the judges collectively”. Even after admitting responsibility, it is a pity that no remedial measures have been taken. The cases of judiciary 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.

It is a fact that nothing worthwhile has been done by Judiciary and Legislature to bring fundamental changes in the existing exploitative, anti-people, elitist judicial structure that is the 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 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/modernize/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 not 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 sick system but where is the correct prescription for cure? Curing the symptoms without removing the root cause of illness will be just an exercise in futility.

Devising a speedy justice system is a daunting challenge in Pakistan due to large pendency. The existing inefficient and outdated judicial system is exploited by money power that hires “crafty” lawyers to get justice delayed/destroyed/manoeuvred.

Slogans such as the independence of judiciary and justice for all in Pakistani milieu have proved to be mere clichés — even in the wake of the restoration of pre-November 3, 2007, judiciary through 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 removing the causes of illness.

According to the data available on the website of the L&JCP, there was a huge pendency of 1,810,745 cases in various courts as on September 30, 2018 — by the end of 2019, 300,000 plus cases would be added. In the Supreme Court itself, total pendency was of 40,243 cases (2,367 cases per judge)

An efficient justice system can only be established if efforts are made to produce highly competent adjudicators at the lower level, who are recruited transparently and trained extensively. It will help produce competent judges for higher courts in the future. All appointments of members in all the special tribunals must be placed before the Chief Justice of the province in which the members perform their duties. The Chief Justice himself or any other Judge authorized, or any committee appointed by him may look into such appointments to approve or disapprove the same, which should be binding for the Federal Government. All existing and future appointments in all tribunals must be screened by the judicial organ of the State.

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 a 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 IRs 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 versus 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 pondered about it.

No concrete proposals, executable plans and time-frames have come from the CJP during his about to end tenure. 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 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 asked to tackle 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.

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

Published in Daily Times, December 30^th 2018.