New judicial year

The writer is a lawyer based in Islamabad.
At the ceremony marking the new judicial year of the Supreme Court most speakers tried to bend the executive’s ear for its egregious disregard of judicial rulings. A fish rots from the head down they say. The highest echelons of the government not abiding by the orders of the highest court of the land is not just audacious, but dangerous. Our justice system is already in disarray due to an inefficient, ineffectual and corrupt local court system. If even our powerful Supreme Court cannot get its orders implemented, rule-of-law advocates might as well throw the towel in. But judges rebuking the government in public speeches will not result in strict implementation of judicial pronouncements that we all seek.
As a court of law the Supreme Court is endowed with judicial authority to get its orders implemented. Legal consequences must flow every time a public-office holder refuses to give effect to court orders. But the judiciary’s note of censure in the face of disobedience to the law must be in the form of judicial ruling. If the success of the lawyers’ movement proved one thing it was that the citizens of Pakistan crave rule of law. The bar, the media and other segments of the civil society are all acting in aid of the apex court to bring pressure upon the executive in order to have rule of law entrenched in Pakistan. They will be no less vociferous in their efforts even if the medium of judicial censure is the written word.
The speeches at the new judicial year ceremony were more remarkable for what they left out as opposed to what they said. As a proponent of restoration of the judiciary and its independence, and rule of law and constitutionalism, one would have liked the chief justice to utilise the occasion and reflect on the successes and failings of the judicial branch over the last year while announcing initiatives and setting goals for the next. If one had to make a wish-list of additional themes and issues that the honorable chief justice might want to consider as objectives for 2010-11, there are at least four that come to mind readily.
One, there is an urgent need to bolster the supply side of justice delivery. In simpler terms, the number of judges comprising our district judiciary is scanty, their professional training skimpy and their salary and fringe benefits deplorably inadequate to attract the brightest lawyers to opt for judicial service. Everyone knows that given the numerical strength of the lower judiciary and its service conditions, even angels might be unable to do justice to their jobs. There can be no apology for greed, intellectual and financial corruption within the judiciary. But realistically, without hiring the appropriate human resource, training it professionally and linking appraisals and promotions to performance, the interface between ordinary citizens and the justice system will stay broken. If there is one fight that the judicial branch ought to pick with the executive, it should be over allocation of resources to enable our justice system to deliver.
Two, it is also vital to scrutinise the demand aspect i.e. review the nature of cases that come before courts and fix the underlying causes of disputes. While disputes cannot be eliminated in a community, they can certainly be minimised. For example a significant proportion of urban disputes are rent matters. Our rent laws provide such unreasonable protection to tenants that they create an incentive to renege solemn contractual commitments. These laws need amendment. In rural areas, a significant number of disputes relate to land. After 63 years of existence we still do not have a title system in this country on the basis of which land ownership can be verified.
The land ownership, possession and demarcation problem will face the justice system wilth all its ugliness now that the flood waters are receding and people will go back to fixing fences. Absence of required laws and flaws in existing ones encourage litigants to abuse the lengthy court process as a matter of strategy to buy time and promote petty interests. Despite being aware of the problem our courts are loath to award legal and judicial costs to the winning party, and as a consequence there is nothing to deter frivolous litigation. We have a Law and Justice Commission, with the chief justice as its chairman, which is responsible for rendering advice on which laws to reform and amend. The chief justice therefore must beseech the executive and the parliament to move ahead with required statutory reform.
Three, the justice system will continue to underperform until the bar begins to mend its ways. We as lawyers have bought into the ethic of using weakness of laws and procedural delays as legitimate tools to protect the interests of our clients. Here the role of bar councils as self-regulatory professional bodies couldn’t be more disappointing. When was the last time a lawyer lost his license due to unethical practices? And God forbid if there is ever a move requiring lawyers to update their skill and knowledge, through mandatory continuous learning programs, we would all be up in arms. Would it not be refreshing if the chief justice and the Supreme Court Bar president had identified crucial areas where we are failing as professionals and implored us to embrace reform?
Four, would it not be a small miracle if the chief justice announced that he was dedicating the remaining three years of his term to institutionalise the exercise of judicial authority of the Supreme Court and the administrative responsibilities that come along. At the fag-end of the rule-of-law movement, after the PPP switched sides, the detractors of restoration would argue that it is institutions that are important and not individuals. The counter-argument was that in the face of non-existent institutional norms and practices, the role and importance of individuals in building institutions can’t be underestimated and hence the need to bring back Chief Justice Iftikhar Chaudhary.
How inspirational would it be if the honourable chief justice undid within the Supreme Court what has been the bane of all our national institutions: centralisation and monopolisation of authority? Can the suo moto powers of the Supreme Court not be exercised in such a manner that most of the local issues are marked to district courts for immediate resolution? There are only so many cases that the Supreme Court judges can adjudicate. But if the court throws its weight behind district courts and adopts an active supervisory role, not only will it empower the district judiciary but also many more aggrieved citizens will get access to justice.
More crucially, the power of the administrative head of the Supreme Court to single-handedly determine the size and composition of benches and who gets to hear what cases and when, is neither logical nor sustainable. This gives one man the administrative power to influence judicial outcomes and the nature of justice within the country. In the US, for example, all the Supreme Court justices have a say in what matters are to be heard. Would it not be preferable if the chief justice created an administrative committee within the apex court comprising the four senior-most judges and the chief to institutionalise the process of creating benches and drawing cause-lists and thus adding transparency to the process?
Voluntary cession of authority doesn’t come naturally to humans. But we’ve seen giants like Nelson Mandela do it. Rule of law is all about structuring and regulating discretion. Chief Justice Iftikhar Chaudhary has an opportunity to lead in all this by his example.
Email: sattar@post.harvard.edu