Daily Times

Justice being the fount of all good in societies has always been considered the most important public good that ensures order and stability in a society. Pakistan was identified as one of the most litigant societies by Lee Kwan Yu and for good reasons too. Litigation in Pakistan is both a colonial bequest as well as public preference due to our peculiar socio-economic structure and lax regulatory environment. A system of governance where the government is ruling by fiat sans law based regulation, lends itself to corruption that forces people to the courts on flimsy issues. The feudal influence and culture also encourage litigation to escape the enforcement of law by influential landed gentry as well as the newly minted urban industrial elite. Regardless of the reasons the fact remains that we are one of the most litigation prone people in the world.

The upshot of the above predilection is overburdening of the courts displaying large pendency of cases both in lower as well as higher courts. Our courts are chugging along on the archaic colonial railtracks with the understaffed courts and an underperforming legal system where pecuniary gains for lawyers trump justice for the litigants. There are endless adjournments for cases that add to the purse of the lawyers but prolong the misery of poor litigants. It is a system where endless delays in deciding cases drain the litigants of their lifelong earnings on the spurious logic that the justice should not be rushed. The costly and cumbersome justice system in Pakistan has led towards a public ennui that has shaken the confidence in the efficacy of the system. It is a development that is full of ominous portents for a country that needs public faith in the state institutions for much needed national integration.

A justice system where 1.9 million cases are pending does not inspire any confidence amongst Pakistanis. A Supreme Court saddled with 40871 cases has scarcely any time to think and adjudicate on weightier constitutional issues and much needed judicial reforms. With District and Special Tribunals clogged with 1458,845 and 130,746 cases respectively the concept of speedy justice is buried under a carapace of systemic inefficiency. A legal fraternity that sporadically quibbles over spoils of justice for business reasons, and when challenged throws gauntlet to the guardians, presents a sorry spectacle diminishing any hope in the system. Rowdy lawyers who take law into their own hands and routinely thrash judges in lower judiciary indicate a deep rooted malaise in the legal community. A legal fraternity that once boasted the likes of A.R Cornelius and M.R Kayani has failed to emulate the examples of those luminaries.

Improvements in our justice system require holistic reforms starting with the quality of induction and legal institutions. All substandard law colleges should be subjected to a review by a specially constituted committee headed by Supreme Court judges and eminent lawyers

So what has gone wrong? Is it the selection, training and career management of the legal community or the shortage of judges and staff? Or is it the flawed British system bequeathed to us? Perhaps the answer lies in multiple factors like induction criteria, oversight mechanism of judges and policy weaknesses. The first reason for decline in efficiency on legal profession is the quality of intake. Unfortunately having tasted the inebriating potion of power the lawyer community has been assailed by a wave of legal carpetbaggers who have entered legal profession for protecting their family interests instead of serving the ends of justice. One of the reasons for this decline is the dilution in the quality of legal entrants due to substandard private law colleges.

The mortal blow to the legal education was dealt by a decision to allow a mushrooming of private law colleges to offer law degrees. Resultantly there are far too many degree churning colleges without academic rigour. Acquisition of law degree without regular attendance by unscrupulous elements has also become a reality. The ingress of criminal elements with malafide intents who subsequently maltreat clients as well as judges has been facilitated by these substandard law colleges. The system of judicial selection also needs improvement by making it more competitive. For higher judiciary the two thirds percentage reserved for lawyers and one third for the judges of lower judiciary needs to be rationalized. The criterion for selection of judges for high courts needs to be made more stringent. At present 15 years of practice is the criterion for shortlisting followed by a selection by a judicial committee. The discretionary nature of the selection needs to be made more objective and transparent.

The selection of judges should be based on 50% quota each for lawyers and the lower court judges. The shortlisted lawyers for High Courts appointments need to be subjected to a competitive examination followed by interviews by a committee comprising Supreme and High Court judges, members of parliament, academics, and lawyers of proven integrity and intellect. Such a committee would ensure better quality and transparency in judicial selections. The number of judges should also be commensurate to the work load in conformance with international best practices. In order to discourage frivolous litigation the concept of law firm scrutiny like the US system needs to be ensured. Most of the cases that do not pass muster on the bar of serious litigation should never be allowed to burden the courts. But for that to happen the unholy nexus between justice and money would need to be broken.

Improvements in our justice system require holistic reforms starting with the quality of induction and legal institutions. All substandard law colleges should be subjected to a review by a specially constituted committee headed by Supreme Court judges and eminent lawyers. Any institution found below par should be disallowed to offer degree programs in law. In addition to above a fundamental review of our existing trial system needs to be done. Trial by jury where the questions of fact are decided by jury and those of law by the judges might not be entirely acceptable to our society but a review of existing British bequeathed system needs to be done. The French system which relies on a rigorous competitive selection procedure of judges and trials headed by three judges giving judgments through majority might offer few advantages from the point of view of judicial efficacy and transparency.

And lastly the parliamentary oversight needs to be ensured by having a balanced mix of members of National Assembly, Senate, academia, lawyers, and judges in a “Judicial Oversight Committee” charged with selection of judges for the Supreme Court. Our justice system is in serious need for reforms addressing weaknesses of the bar and bench both with courage and objectivity aimed at nothing but dispensing speedy and cheap justice. The reforms as indicated in the article should span the full gamut of legal education, judges’ induction, rationalization of workload and sifting of frivolous litigation. Without a holistic intervention any piecemeal tinkering with the system would not yield any results.

The writer is a PhD scholar at NUST