Daily Times

The Constitution of Pakistan has guaranteed certain fundamental rights, one of which ensures speedy justice as a principle of policy to its citizens. Good governance and speedy and inexpensive justice are important to protect fundamental rights. They are just as essential for our internal security and the bright future of Pakistan. However, Pakistan ranks among the worst countries in areas of judicial and governance deliverance. Every year, its ranking downgrades a little further. This state of affairs definitely needs the consideration of our legislatures. The justice-related stakeholders need to address the existing problems on a priority basis and to make the governance and the pursuit for justice effective, vibrant, and time-bound.

The inherited colonial governance and judicial system had the objective to engage the locals in multiple proceedings so they would not demand or raise their genuine legal rights and go for independence. It is important to note that at that time, when the existing governance and judicial system was introduced in 19th century India, it was never legislated for the Britishers in the UK. After independence, no concrete or visible effort has been made to completely overhaul the colonial governance and judicial system at any appropriate stage including the parliament and provincial assemblies. This state of affairs has created a strong perception on one side that the present judicial system is so complex, overlapped, inefficient, and old, that years and years have been spent by the common man seeking justice; almost losing the citizens’ trust and confidence in state institutions.

Pakistan is at the same time also among one of a few countries where too much litigation has been cropped up or initiated against govt departments either due to misgovernance, complex procedure, delay, or by exercising unbridled discretion of state officials during their official assignments. Resultantly, it increases the workload of courts and as well the precious courts time is not there being allocated properly for the protection of citizens’ rights. Being that the mafias are protected against the supremacy of law resultantly, the country has been poor in all areas including in governance, enforcement of rights, and in economic and investment areas.

The inherited colonial system had the objective to engage the locals in multiple proceedings so they would not demand their genuine legal rights.

There is no fear among those who have broken laws or encroached upon other rights because of delay and mal-governance. Hundreds and thousands of cases are pending before different courts, tribunals, forums, and administrative authorities throughout Pakistan and in most of these cases, everyday proceedings are adjourned in one or another way with no conclusive and time limit legal judgment. The existing laws, the present governance, and judicial system have further weakened our international legal ranking that now international investors try and demand to exclude our legal jurisdiction while drafting the international investment contracts in Pakistan. The country had earlier paid a heavy monetary price as well to the international contracts before different international forums. Thus, the present governance and judicial system should not be rectified through a patchwork but it urgently needs to be overhauled completely both in procedure and in areas of substantive laws. The new, vibrant, and time-limited governance and legal system would not be a new experiment for Pakistan but every modern and welfare state has done it according to their need and requirements by considering the supremacy of law and citizens well being.

For an efficient and credible judicial system in Pakistan, it is suggested and recommended that,

1. Governance and justice reforms should be initiated immediately to curb the delay in governance and justice sectors. The new governance and judicial system should be based upon the legal principles of simplicity, equality, less procedural, time limit and to have the capacity to curb all delays in provisions of judicial and administrative justice. Best practices of different successful judicial systems both on substantive laws and on procedure sides can also be studied and to be included for improving our governance and judicial system in the best interest of our country and citizens.

2. Special Core Group of Justice Deliverance be constituted like National Judicial Reconstruction Bureau with the approval of Federal Cabinet under the umbrella of PM Office or the Ministry of Law for deliberations and recommendations for new judicial reforms and to make new draft statutes with specific requirements of modern justice needs with a new strategy for “Dispensation of Justice” both in administrative/Civil and Criminal Justice systems. The task given to them should be to this institution should be specific and time-bounded and they should also take benefits from the opinions/views of all stakeholders including from observation of Superior Courts. These suggestions and recommendations as model draft legislation be taken and forwarded to the Parliament and Superior Courts for their final input before implementation. Decisions taken by this institution should be monitored and implemented by the top level.

3. Model Civil Procedure Code and Criminal Procedure Code should be drafted by taking into consideration the ground reality, courts observations/judgments to include best legal practices with minimum procedures and to set a timeline to finalize court cases at all stages of litigation from 1 month to 12 months. Superior Courts, later on, be also requested to suitably amend their Rules & Orders on priority by adding new best practices in view of new draft legislation and to ensure specific time for specific categories of proceedings of cases pending with them and before district Courts. Superior Courts may also be requested to activate Administration Committees of High Courts and Provincial Justices Committee at the district level as per their mandate for dispensation of timely justice.

4. Very few civil, criminal and tax laws almost involve more than 80 per cent litigation of our governance and judicial system, so these laws need to be given priority for redrafting as model statutes to reform them for timely dispensation of justice in the larger public interest.

5. Forensic audit regarding working and performance through independent expert sources of our governance and judicial system be carried out at the earliest for rectification and to make the system more effective and vibrant.

6. Modern technology should be used/introduced at all stages of court proceedings including Process Service, Fixation of cases, Case Management, Case Tracking and recording/ submission of evidence and arguments by litigants in court proceedings.

7. The concept of “Conclusive Proceedings of Case” along with a time limit of arguments of both sides may be initiated for a timely decision of cases. New SOP for case management and conclusive proceedings system be designed with coordination of all stakeholders. Efforts are made to finish left-over proceedings in all court cases.

8. Cause list of a judge at all levels may be rationalized so that he can manage and perform his duties in a good manner and ensure conclusive proceedings.

9. Special measures should be taken for strengthening the Internal Complaint Resolution / Dispute Resolution Mechanism of government departments at all levels. Regular interaction can be made with Federal and Provincial Ombudsman Offices who are dealing with mal-administration issues of government departments and so they can become the main source to minimize the administrative litigation of Superior Courts and District Courts.

10. Special Benches should be constituted in Superior Courts in special areas of different laws having the same legal propositions.

11. Steps legally are required for reconsideration of the closing the forum of Intra Court Appeals in High Courts wherever it now exists as it consumes more time both of the courts and litigants with not much legal productivity.

12. Cases may not be fixed before judges until it is ensured that all the documents/replies are received from both sides, and for this purpose, the capacity of the administrative staff of High Court and District Courts may be enhanced. Special benches or judges are designated for the cases of children, women, overseas Pakistanis and citizens who are above 60 years of age.

13. The Concept of “Special Costs” be initiated and ensured in courts matters for the avoidance of frivolous litigation. Measures are suggested for the recording of evidence and arguments through video links to save time and money.

14. Existing, govt Rules of Business were made soon after the promulgation of 1973 Constitution and much time has passed, thus it needs reconsideration as per modern governance requirements. For better working and structured discretion within the government affairs and departments, Rules of Business relating to the functions of Federal and Provincial governments should be redrafted in a way for giving more efficiency in administrative justice. This is the time as well to make such rules and regulations for structured discretion in govt affairs with today’s requirements for the efficiency in govt affairs in the public interest. Action against delinquent officials of government departments while deciding cases at all levels be taken who are regularly involved in maladministration and responsible for obstructing justice and not performing their duties as per law and more importantly responsible for increasing the court’s litigation.

Legal reforms are a continuous process. Regular, yearly independent Forensic Audit of judicial working and client satisfaction in Pakistan should be conducted and recommendations made during these reports be taken into consideration for future strategy and implementation. Reforms should be started and continued regularly as other successful nations do in the world. In the present circumstances and situation of our country, it is the need of time to start working without wasting further time for the improvement of the judicial system and to initiate immediate rudimentary steps for those laws which are not only outdated but failed to deliver and have not come up to the expectations of the public at large and resultantly creating unrest among countrymen and society. Finally, I must say, it is the Constitutional and legal obligations of all the state organs, especially relating to legislation and justice sectors to look into and take the lead immediately for overhauling/improving the present governance and judicial system in Pakistan for a bright and confident future.

The writer is a practicing lawyer at Supreme Court and has served as Judicial Member, Federal Excise & Sales Tax Appellate Tribunal and Advisor Federal Tax Ombudsman. He can be reached at: hafizahsaan47@gmail.com.