Judicial reforms or executive control?

It is hardly a secret that the current political flux the country is in relates to the proposed constitutional amendment. The contours of the amendment are unclear but what can be gleaned from the statements of the ruling parties and other quarters is that they shall contain certain changes to Pakistan’s judicial structure.

The original draft that appeared in the public sphere, and talk thereafter, suggests that changes envisioned include the formation of a ‘Federal Constitutional Court’ which will hear and decide constitutional matters either filed directly before it or as appeals arising from constitutional petitions filed at the high courts.

Other appeals would be left within the domain of the Supreme Court. It is understood that the Federal Constitutional Court shall have superior authority as compared to the Supreme Court, in so far as it decides the question of law.

It is being reasoned that this change is necessitated as the Supreme Court is unable to decide regular civil and criminal appeals owing to the burden of constitutional cases pending before it.

It is being envisioned that the government and the legislative would have a determining role in the appointments and removal of all judges of superior judiciary, including the Federal Constitutional Court. Furthermore, the executive and legislative branches would have greater control over the functioning of the high courts as they would reserve for themselves the power to transfer judges between high courts and to also remove them based on yearly performance reviews.

If these amendments are viewed through a lens that enables the seer to see only bona fides, then the purpose of these amendments appears to be the rebalancing of the capability and capacity of the judiciary to judicially review executive actions and to limit its ability to affect the formation and stability of governments.

There are some strong merits in wanting to achieve these objectives. After all, these governments are elected to carry out the electorate’s mandate, and it is that mandate which is affected when the judiciary influences government-making. However, some pitfalls need to be addressed and catered for in this endeavor to reform the judiciary.

The most immediate issue with these reforms is that they do not correctly identify the causes of delay in the judicial system. For most kinds of cases, pendency at the Supreme Court accounts for only about a fourth of their lifetime. Most of the delay is occasioned by adjournments at this court of first instance, which is ordinarily the civil court or court of the magistrate.

Ordinarily, a civil case will take three to five years to be decided by a civil court. Thereafter, each appeal will take between a year and a half to two years. Often interlocutory matters such as the framing of issues or production of evidence will give rise to appeals. When this happens, the appeals will be decided according to a similar timeframe, and while they are being decided the trial comes to a standstill, only to begin again after the appeals are finally decided by the last forum.

The judicial reforms proposed by the constitutional amendments do not cater for or address the more substantial reason for delay. Unless these delays are managed somehow, the constitutional amendments in so far as they purport to streamline the system shall remain unsuccessful. In any case, the issue of delay relates to the civil and criminal procedure laws, the amendment of which does not require changes in the constitution.

One of the aspects in which the judicial system works with comparative efficiency is the writ jurisdiction exercised by the high courts. In this jurisdiction, the high courts hear and decide matters where petitioners challenge the acts of government or legislature for being more than their legal or constitutional bounds, as the case may be.

One can expect immediate relief from such illegal state action in the form of injunctions. These cases and their appeals are also often finally decided within six years approximately. The proposed amendments, however, threaten to make this jurisdiction ineffective, thereby damaging a part of the judicial structure, which is functioning relatively better.

If the government and the legislator assume the power of transferring judges from one high court to another and remove them on the basis of yearly uprises, it is likely that the judges will be mindful of this consideration when deciding cases against the government or the legislature. Understandably, a judge hearing cases in Lahore may be wary of passing orders that may result in him finding himself hearing cases in Turbat.

Another angle to look at this issue is that the litigant will also decide to not seek judicial review of the executive or legislative actions if the final court to which that matter shall be appealed is manned according to the discretion of the government. It would be a fair perception that the Federal Constitutional Court, whose judges are appointed and may be removed by the government, is unlikely to render decisions that may antagonize the government.

No person who has experienced the judicial system can deny that it requires a complete overhaul. The system does not work for the ordinary litigant. It is so inefficient that even if a matter is decided in favour of a litigant, so much time has often passed by that the final decision is then of no use or significance.

One cannot fault a litigant when s/he feels that the legal costs endured to obtain a judgment were a bad investment. The more worrying concern is that when there is no state-sanctioned dispute resolution mechanism in which an ordinary citizen can find recourse, s/he is likely to resolve his disputes out of court, and oftentimes times this resolution will entail violence. It should also not be forgotten that one of the reasons why the TTP found support in certain regions was that they offered a swift and effective dispute-resolution mechanism.

It is imperative that the judicial system be fixed. However, the judicial reforms proposed through the constitutional amendments do not appear to do so. With the information available, it is hard to view them as anything but a recalibration of the three branches of the state – for the benefit of those who seek power and control over the state.

The writer is a lawyer with

degrees from LUMS and Georgetown Law. He tweets/posts @J_Sukhera