The problem of delayed justice system is not new, but as old as Pakistan. Many attempts have made by eminent jurists, scholars, law commissions and committees constituted by different governments to decently counter the existential problem but to no avail. The problem once again became the centre of attention when tragedy of the Army Public School (APS) took place in December 2014. As a result of the APS attack, the political leadership at that time unanimously agreed upon establishment of military court to try terrorists for two years.
The courts were established through the 21st amendment of the constitution. Presumably, the idea behind the establishment of the military courts was that the shortcomings which are occurring in the criminal justice system would be expeditiously addressed within a period of two years. The extension of military courts have not only undermined constitutional supremacy but also violated the basic fundamental rights which are related to the proceeding of the courts.
Chief Justice of Pakistan Asif Saeed Khosa would do a great service if he takes this issue seriously and finds perennial solutions to it.
Firstly, the problem is stuck in the police department. After lodging an FIR, the police are the first executive agency, especially in criminal cases, which reach the crime scene for investigation. The investigation is the first step in a criminal case which is the primary administrative duty of the police. In fact, the investigation is an evidence which leads the court to a just and fair conclusion about the guilt or innocence of an accused person. The investigation consists of proceeding to the spot, ascertainment of the facts, collection of evidence and detainment of the suspect, if required.
For a speedy and fair trial, we need a separate special investigation department in the police. It shall be under the district police officer, but their main duty shall be confined to investigations. Qualification should be a degree in law and such a police shall be trained by competent judges and lawyers in judicial academies to teach them special techniques and skills. A collection of evidence by such police will be authentic and accurate and will facilitate a judge to reach a decree.
Time limitation for a declaration of the decree for both civil and criminal cases needs to be introduced
Judiciary in Pakistan at the district level is itself a hurdle in the way of speedy justice. It’s hosting three kinds of problems like insufficient number of judges, recruitment of inexperienced officials or functionally illiterate judges with no specialisation over the civil or criminal branch.
Inadequate socio-economic infrastructure is also leading to the inability of the courts to keep up with the growing population and litigation demands. Crime ratio is increasing day by day due to weak law and order. The number of judges in district courts is also a problem. According to the website of Peshawar High Court, by the end of October 2016, around 33,302, cases were pending before the high court whereas 187,840 cases were pending before district courts. So, every provincial government is required to recruit sufficient number of judges district level to contain the cases backlog.
Most judges in district courts are fresh graduates of law having no vigorous practical experience as a lawyer. Such fresh graduates face problems in dealing with complications of cases of complex technical nature. Recently, KP government has recruited civil judges for which two years qualification was mandatory as a district lawyer. Most of the hired judges have licenses but no experience as in the two years they would be committed to jobs in other institutions rather than practicing in courts. Hence, a mechanism is required to be devised for this problem.
Specialisation and expertise over criminal or civil branches of law are also a point of great concentration. Such options shall be given to them on the initial phase of training in judicial academies to pick one field of their choice willingly and then, expert lawyers of relevant fields (civil/criminal) shall be called in to guide and teach them about the technicalities. They shall perform their duties in the specialised field till retirement. This will significantly help in the speedy delivery of justice.
Time limitation for a declaration of the decree for both civil and criminal cases needs to be introduced. For this purpose, our parliamentarians are required to do a legislation in which they specify a specific time for judges for case remedies and bind them not to postpone unnecessarily. The specific time must be reasonable, not too short to defeat the maxim, “Justice hurried is justice buried,” and not so lengthy to defeat the concept of “Justice delayed is justice denied”. Such kind of legislation shall also bind the lawyer fraternity to represent its plaintiffs on the day of hearing strictly. Former chief justice Iftikhar Muhammad Chaudhry had introduced national judicial policy with an aim to resolve civil and criminal cases within fixed time but ultimately failed. Such kind of legislation can vigorously speed up the judicial process.
Protection of judges and their families is crucial, especially in sensitive or high-profile cases.
The introduction of protection of witness program is also critical, especially in criminal cases in line with the model of the U.S Witness Security Program (WITSEC), which is protected under Organized Crime Control Act of 1970. The roles of witnesses in criminal and civil cases is that of a backbone. In the event of non-protection, witnesses prefer to avoid providing testimonies out of fear.
The inherent power of adjournments of proceeding should be used very rarely. It should be only allowed in exceptional cases and then not more than once.
The incumbent chief justice with the help of government is required to take the problem of delayed justice seriously and discuss it with bars, eminent jurists and lawyers to derive out a permanent solution for it.
The writer is a lawyer based in Islamabad with an LLB degree from Islamia College University, Peshawar
Published in Daily Times, March 8th 2019.