No more judges, please

Last year, Pakistan’s former chief justice, Justice Jawwad S Khawaja, showed the bar and the bench a mirror when he announced the results of an empirical study conducted by Supreme Court staff. This official study concluded that a case that starts its life in a trial court and gets appealed all the way through to the Supreme Court generally takes about 25 years to conclude. A quarter century is only the average. Outliers regularly take more than half a century.

With our civil justice system in such bad shape, and there can be no two views that the Senate’s recent law-reform initiative represents a ray of hope. Here’s a quick recap of the Senate initiative: between May and December, 2015, the entire Senate of Pakistan sat as a committee to deliberate law reform proposals. Law reform pundits were invited to contribute from all over the country. The result is an 80-page report containing detailed proposals for fixing the justice system. By mid-January, eight different bills giving effect to the proposed changes had been unanimously adopted. These bills, available on the Senate’s website, are now awaiting the National Assembly’s approval.

In an earlier oped, I had opposed one of the proposals: further increasing the number of SC judges. Since then, the apex lawyers’ body, the Pakistan Bar Council, has also come out in opposition to this proposal, which effectively means the end of the matter.

But the Senate’s report also contains some useful proposals regarding the civil justice system which deserve to be highlighted. Five of these proposals are worth a mention. First: soon after a case is filed, judges must conduct ‘pre-trial hearings’ and come up with a ‘case scheduling order’, a stage-wise timetable for conducting the entire trial. Second: substitute oral evidence with written affidavits wherever possible. Third: reduce the scope of ‘adjournments’ granted to lawyers. Fourth: abolish procedures known as ‘revision’ and ‘intra-court appeals’. Fifth: appoint more judges in the district judiciary.

The finest idea in this entire wish list is the first one, the one about judges passing a Scheduling Order early on. Today, when a first-time litigant first enters our legal system, the thing that intimidates him or her the most is the seemingly endless nature of the process. When litigation begins, neither the lawyer nor the judge has any endpoint in sight. There are simply no goalposts.

The delay issue is in part a manifestation of the moral crisis of our legal profession. Somewhere down history lane, as a collective, our lawyers and judges lost their commitment to the dispensation of justice for all. But moralisers tend to forget that a large part of the fault also lies in our 19th century procedural codes. These codes are sensitive to a whole range of concerns but time is simply not one of them. They provide deadlines for only a handful of stages of litigation – for instance, the well-known one-month deadline for the submission of a written statement or the limitation periods prescribed for appeals. For most stages, however, and for litigation as a whole, there are simply no deadlines given. Nor do these codes expressly empower judges to fix and enforce reasonable deadlines.

The case scheduling order emerged in the US as a response to a similar epidemic of judicial delays. In 1983, Rule 16 of the Federal Rules of Civil Procedure was rewritten in order to tackle the issue. Since then, the case scheduling order has been transplanted into the procedural law of many other countries, including the UK. The same idea was brought to Pakistan by a brilliant policy paper published in 2013 by a thoughtful member of our district judiciary, Judge Kamran Mufti. Over the course of two years, the idea presented in Judge Mufti’s paper has gained wide currency in our law reform circles and is now on the verge of finding its way into the law.

The rest of the Senate’s proposals are, unfortunately, quite insipid.

Two of the proposals are simply redundant because similar provisions already exist on the statute book. Under Section 30 and Order XIX of the Code of Civil Procedure (CPC), judges already hold the power to substitute the time-consuming process of recording oral evidence with written affidavits. Likewise, under Order XVII Rule 3 of the CPC, judges already enjoy the power to discipline lawyers or litigants seeking unnecessary adjournments by dismissing their cases. In practice, though, lower court judges hesitate in asserting these powers and if ever they do, lawyers find a way to get around it. These are both good practices and need to be adopted more widely. But the Senate has not bothered to probe into the institutional conditions because of which these practices have not been adopted.

As for the ‘appoint more judges’ mantra, the Senate is not the first institution to have succumbed to its charms. To be honest, let me admit that when I first started thinking about law reform, I too found this simple and intuitive formula quite appealing. I used to conceive of the legal system as some sort of an assembly line. Add more judges and things will speed up. But in the years since, I have come to realise that the judicial process is not an assembly line; it is, essentially, a wresting arena. At every round of the litigation, one of the parties actually benefits from the delay because it can afford to wear the other out; the lawyers representing such a party have a direct incentive to throw a spanner in the wheels.

The only party that can effectively thwart delaying tactics is the one party whose institutional interest (almost) always lies in swift disposal: the judge. But judges in our adversarial system of litigation are not always in a position to out-manoeuvre lawyers. This problem is most acute in the civil courts where the judges are generally young, 20-something, modestly-talented, freshly-inducted and financially-constrained individuals. Quite often, they simply don’t have the social prestige, legal acumen or managerial drive required to assert the judicial powers necessary for pushing a trial through. If ever they do exercise such powers, the three tiers of higher courts rush to neutralise them.

To sum up, what we need is not more trial court judges but better and stronger ones. The political dynamics of the courtroom at the trial court level need to be radically reworked. Without a radical restructuring of the lower courts, the wreck that is Pakistan’s civil justice system cannot be salvaged. Not even by twice as many judges as we have at present.

The writer is a lawyer associated with Foundation for Fundamental Rights.

Email: umer.gilani@gmail.com