Journey to judicial reforms

In his address on January 17, Chief Justice Asif Saeed Khan Khosa said: “There are about 1.9 million cases pending in the country before all the courts put together and to handle such a huge number of cases there are only about 3,000 judges and magistrates available from top to bottom. Successive governments have failed to suitably increase the number of judges and magistrates on account of financial constraints. 3,000 judges and magistrates cannot handle 1.9 million cases even if they work for 36 hours a day”.

With the appointment of Justice Asif Saeed Khan Khosa as the 26th chief justice of Pakistan (CJP) on January 18, 2019, there are expectations that much-needed reforms in the judicial system will take place as he has indepth knowledge of its shortcomings and possesses the desire to address them. After taking oath as the 25th CJP on December 31, 2016, former CJP Mian Saqib Nisar had time and again stressed the need to fix the justice system.

Instead of improving, the situation has further deteriorated. As pointed out by the new CJP, there exists a huge pendency of cases in various courts. In the Supreme Court itself, the total pendency per judge (as on September 30, 2018) was 2,367 cases.

Nothing worthwhile has been done by the judiciary and legislature to bring fundamental changes in the existing exploitative, anti-people and elitist structure that is the real problem. A reform agenda for the judiciary, executive or legislature can never succeed without fundamental structural changes.

There is a need to replace the prevalent and disintegrating systems with modern and efficient models that are working successfully in other countries. Since Independence, we have failed to reconstruct, modernise and democratise our obsolete state institutions.

Mere cliches and rhetoric about reforms, which we have been hearing for a long time, won’t serve any purpose. Talking about the dearth of competent judges, delays in the dispensation of justice and huge pendency alone is not enough. These are, of course, symptoms of a very weak system. But where is the prescription that can cure them? Curing the symptoms without removing the root cause of the illness is an exercise in futility. No concrete proposals, executable plans and timeframes emerged during Saqib Nisar’s tenure. Parliament and successive governments have also never tried to provide an efficient justice system. It is time we are pragmatic about introducing reforms.

The available data confirms that more cases are filed than disposed every month, choking the justice-delivery system. Despite this critical situation, there is no plan to deal with the problem. No effort has been made to remove the causes of unnecessary litigation and reducing/eliminating the backlog. Our courts are still following outdated procedures and methods whereas many countries have adopted e-systems to file cases and ensure their quick disposal through fast-track follow-ups using the offices of magistrates at the grassroots levels.

It is pertinent to mention that the Eleventh Finance Commission of India recommended a five-year scheme to create 1,734 fast-track courts (FTCs) for the disposal of pending cases and provided INR502.90 crores as a “special problem and upgradation grant” for judicial administration.

The term of FTCs, established to expeditiously dispose of pending cases – especially those of under-trial prisoners – was to end on March 31, 2005. However, the Indian Supreme Court, which was monitoring the functioning of FTCs, observed in ‘Brij Mohan Lal vs UOI and Ors’ that these courts should not be disbanded all of a sudden. The Indian government accorded its approval for the continuation of 1,562 FTCs for a further period of five years. According to a BBC report, FTCs working in India since 2001 decided “more than three million cases” by 2012. Our successive governments haven’t considered any such initiative and the judiciary has also not pondered over the matter.

In our case, even simple solutions – such as awarding costs to frivolous litigants, only permitting adjournments in exceptional circumstances and appeals by leave of court, and active case management – haven’t been adopted, leave alone structural reforms and efforts to update procedures. We all know the issues faced by our judicial system – complexity of procedures; outdated methods; lengthy hearings; the highhandedness of public functionaries that are passing illegal/unlawful orders; the poor standards of pleading and adjudication; and rich parties taking advantage of the law houses of the relatives of serving judges (as per Rule 6 of the Advocates Act, 1961, no relative of a judge in India can practice where the judge is serving). Unfortunately, there is no political will in Pakistan to remedy these shortcomings.

An efficient justice system can only be established if efforts are made to produce highly-competent adjudicators at the lower level who are recruited transparently, by a board of professionals and not serving judges, and trained extensively at a centre of excellence or a reputed university. This will help produce competent judges for higher courts in future. All appointments of members in all special tribunals must be made through the same procedure. The chief justice of Pakistan or any other judge authorised by him or committee appointed by him should look into appointments that have already been made on a political basis in these tribunals and incompetent members should be disqualified.

The main aim of judicial reforms should be to eliminate unnecessary litigation and facilitate the smooth running of affairs between the state and its citizens. Once citizens and the state learn to act within the four corners of law, there will be no need for so much litigation. It is painful that the government is presently the main litigant. It usurps the rights of people and then drags poor citizens to court. It is hoped that the apex court, under the new chief justice, will establish a commission to determine the reasons for this morbid state of affairs and find ways to rectify the situation.

In order to put an end to unnecessary litigation, all three pillars of the state – the legislature, the executive and the judiciary – will have to work hand in hand.

The writer is an advocate of the Supreme Court and adjunct faculty at LUMS.

Email: ikram@huzaimaikram.com Twitter: @drikramulhaq