Decentralise for justice

Under Article 37 of the constitution, the state is bound to provide inexpensive and expeditious justice to the people of Pakistan.

For this purpose, Article 7 of the constitution defines the state as both federal and provincial governments along with such local authorities in Pakistan as are by law empowered to impose tax or cess.

The state is also enjoined under Article 37 of the constitution to decentralise government administration to facilitate expeditious resolution of matters and disposal of its business, to meet the convenience and requirements of the public.

These great ideals of the constitution have remained unattainable for the people of Pakistan. The federal and provincial governments as well as local governments have not yet (even after 77 years) been able to establish an inexpensive and expeditious justice system. Nor have we been able to decentralise administration for the convenience and requirements of the public.

It is due to this fundamental inability to provide expeditious justice that the people are dissatisfied with the system of executive and judicial governance. It is for this reason that people are clamouring for justice through various forms of political and societal organisations, because the constitutional setup that should be responding to their needs is latent and ineffectual.

Pakistan can easily set up a judicial system along the lines that operate quite effectively in the US, by establishing provincial supreme courts (analogous to state supreme courts in the US federation).

Civil and criminal appeals arise from provincial laws both in the US and in Pakistan. For the convenience of its citizens, the US created a Supreme Court in each of its 50 states (in fact, in Texas they even have two separate supreme courts for civil and criminal appeals, respectively). Therefore, a litigant from, say, California or Oregon does not have to take a four-hour flight or overnight train to Washington DC to contest his/her civil/criminal appeal.

Compelling litigants from far-flung areas (like Gwadar, Chagi in Balochistan or say Dadu and Mithi in Sindh), to contest their civil and criminal appeals in the Supreme Court at Islamabad is highly unfair. We can easily replicate the American system which will cater to the ease and convenience of the public and deliver expeditious and inexpensive justice, as promised in the constitution.

The US and Pakistan both have their criminal/civil justice systems operating under state/provincial governments respectively. The subjects of law and order and policing in Pakistan, are exclusively provincial. For the effective administration of both civil and criminal justice, their operations need to genuinely reflect constitutional provisions.

During the recent debate on the 26th Amendment, the PPP proposed to create a Federal Constitutional Court based on equal representation of the provinces. It has been suggested or rather pointed out that after the establishment of the Federal Constitutional Court or benches (as presently established under the 26th Amendment) the civil and criminal functions of the Supreme Court become superfluous at the centre.

To rationalise matters, the present constitutional benches can and should be declared as the Federal Constitutional Court and the four provincial supreme courts must be established in each province. Retaining a Supreme Court with civil and criminal appeals at the centre is not only expensive for the people, it is extremely inconvenient and unfair to litigants who have to not only pay lawyers exorbitant fees but also their airfares and accommodations in Islamabad for the duration of the hearings. Many a civil matter has not been pursued by aggrieved litigants in the SC due to the high costs involved and many litigants have died natural deaths before their cases could be resolved.

Let us not forget that all civil and criminal appeals arise from provincial law. The current arrangement of one Supreme Court in Islamabad badly affects the delivery of criminal justice and law and order in the provinces. Moreso, after the establishment of constitutional benches, it has created a dichotomy.

Had the original proposal of PPP Chairman Bilawal Bhutto Zardari been carried out (and not diluted by mainly the PTI) the establishment of a Federal Constitutional Court would have provided a clear, succinct and straightforward path for public litigants and their legal counsels.

Having two categories of judges in the Supreme Court is awkward, expensive and burdensome. This is in contrast to the provision of inexpensive and expeditious justice promised to the people of Pakistan under Article 37 of the constitution.

Let us remind ourselves that the duty to establish a system of inexpensive and expeditious judicial system is the responsibility of the federal and provincial governments (under the constitution). This responsibility has not been conferred upon the judiciary.

The federal and provincial governments are both represented in parliament to amend laws and the constitution, as the need arises to make life easier, more convenient and judicious for the people. It is their mandate. The 26th Amendment is definitely a milestone. The establishment of provincial supreme courts for the convenience and requirements of the people would revolutionise the law-and-order system in the provinces.

A section of lawyers or rightist politicians appear nostalgic for a ‘lost’ Supreme Court at the centre. For them, one Centralised Supreme Court evokes a sense of grandiosity and imperial feeling. Perhaps they resent the potential loss of (all expenses paid) trips to Islamabad? Anyway, whichever way one slices or dices it the current arrangement is highly restrictive for all but the wealthiest of citizens.

Muhammad Ali Jinnah, the first governor-general of Pakistan, established a Federal Court in 1948 which was supposed to be the Federal Constitutional Court (as proposed and debated by him in the Roundtable Conference in London in 1931). However, the powers that dissolved the original Constituent Assembly of Pakistan replaced this Federal Court with the Supreme Court in the new 1956 constitution. This convention continues even today as the SC is an appellate court for civil and criminal matters arising out of the provincial high courts. It is a court of original jurisdiction only for disputes between provinces and centre or amongst provinces. (by the SC’s newly formed constitutional benches).

Instead of retaining one Supreme Court, we must embrace a concept and system of justice in consonance with the requirements of the public. This would require a constitutional amendment and in the light of experience of the 26th Amendment, it should not be difficult for all political parties to forge a consensus, in the interest of the people of Pakistan. This will further the object of the 26th Amendment.

Along the same lines, and for the same reasons, the federal and provincial governments under Article 37 are also required to decentralise all government administration offices. Therefore, under this constitution, the federal government needs to transfer all ministries (on provincial subjects) to the provinces. The provincial governments, in turn, must adopt a two-pronged approach to empower district and taluka administrations on the one hand and local governments on the other.

More than 40 departments of the provincial government have concentrated powers at the provincial headquarters level, which need to be decentralised to the same departments at the district and taluka levels.

It is good to see that at least in Sindh local governments have been strengthened by the promulgation of the Local Government Act. Various further amendments may need to be made to administratively and financially strengthen local government by empowering and facilitating them to collect local taxes and cess to generate their resources instead of looking to the provincial government for handouts.

The above two objectives need to be pursued by the federal and provincial governments. This would empower people at the local and district levels. Furthermore, by establishing Supreme Courts in the provinces we could create a congenial, trustworthy and ideal legal system, for speedy justice.

Investors, both local and foreign, would feel confident that their civil and criminal disputes would conclude expeditiously. The economy – dependent on political stability and law and order – could grow manifold.

The writer has served as advocate general of Sindh. He tweets/posts @zamirghumro