The delivery of justice

Even after almost three years in office, the present government has not taken a single step for improving the slow-moving judicial system that has not only spawned lawlessness but also alienated the people from the state.

There are two obvious reasons for the inordinate, protracted delivery of justice in this country: one, shortage of judges at all tiers of the judiciary, and two, delaying tactics used by lawyers to prolong cases through adjournments. Our rulers can address both the issues if they have a will to do so.

According to former CJ of the Supreme Court, Jawaad S Khawaja, a case initiating at a lower court in our country on average takes 25 years for final settlement at the Supreme Court. Only this January, a two-member bench of the Supreme Court decided a 55-year old case of inheritance.

At the end of 2015, nearly 27,000 cases were pending at the Supreme Court and 60,000 before the Lahore High Court (LHC) and the Sindh High Court each. A large number of these pending cases were not less than a decade old.

This is despite the fact that the pendency in the two high courts significantly declined last year as compared to the preceding year – 40 percent at the LHC and 20 percent at the SHC – owing to improved management of cases. The system, however, is so acutely ill that small measures cannot clear the backlog piled up over the decades.

A major factor, but not the only one, behind the slow adjudication of cases is shortage of judges in the judiciary. Former Sindh High Court CJ Justice Faisal Arab is on record blaming the scarcity of judges for delay in dispensation of justice.

According to media reports, at the end of 2014 the Supreme Court and five high courts were up against 304,813 cases with no more than 130 judges on their strength.

How the number of judges affect the pace of justice can be seen from the example of the Sindh High Court where Chief Justice Faisal Arab appointed 10 additional judges last year as a result of which the number of pending cases significantly dropped in a matter of a few months.

There are strong lobbies, especially elite lawyers based in big cities, that resist greater strength of superior courts. When the Senate recently passed a bill to raise strength of the Supreme Court from 17 to 26, some senior lawyers, including the executive committee of the Pakistan Bar Council, opposed this move, saying there was a need to increase judges at lower courts and high courts – not in the apex court. The fact is that there is a need to have more judges at all tiers.

A significant number of the approved strength of judges remains vacant in high courts. At present, the LHC is short of at least five judges against its sanctioned strength of 60. The Sindh High Court (SHC) never worked to its approved strength of 40. These days, there are 33 judges at the SHC. In 2014, it worked with only 23 judges.

A common excuse for vacancies in superior courts is that competent people are not available. It defies common sense that in a nation of 200 million with a 100-year-old tradition of judicial system based on common law, there is a shortage of capable people who can work as judges of high courts.

Appropriate people could be in short supply for high courts for the reason that lower courts do not have adequate number of judges. If young lawyers are recruited in the lower judiciary in large numbers, they can become experienced enough over a certain period of time to be elevated to the high courts.

According to figures of the Law and Justice Commission, at the end of 2014, around 1.4 million cases were pending in lower courts for which there were only 4,000 judges. There is need to enlarge this number by two to three times to make the system work. Judges in lower courts are so overburdened that a judge has to deal with 200-400 cases every day.

For a nation with a standing army of 600,000 and a police force of 400,000, employing 4,000-8,000 more judges for a functional system of justice should not be a big deal. Similarly, the government can make a law that fixes a timeframe for the settlement of cases, and penalise those responsible for delay.

Further, our lawmakers need to serious consider establishing an alternative dispute-resolution mechanism by amending the Arbitration Act, 1940. In his address to the Senate last November, Chief Justice Anwar Zaheer Jamali said that 80 percent of disputes in the country are settled by the unregulated informal justice sector such as jirgas and panchayats. This mechanism can be formalised by placing it under certain rules and regulations.

The suggestion that the number of appeals against a court verdict be reduced from three to two, especially intra-court appeals, also merits serious consideration. The state also needs to consider setting up high court benches at the district level since a majority of people cannot afford the cost of travelling and hotel for reaching out to high courts working in big cities.

If not permanently stationed, judges of high courts can spend some fixed days each month in a district to hear cases from that particular region. This could be a big step towards providing justice at people’s doorsteps though this may deprive elite urban lawyers a portion of their clientele.

A big stakeholder against judicial reforms is the powerful civil bureaucracy. An expanded and efficient judiciary implies a larger check on the working of the civil service, including the police. The reality is that police stations are unlawfully involved in settling property disputes in return for money.

The vested interest against an efficient judicial system is well-entrenched. A strong political will is needed to overcome these forces, lawyers and bureaucracy if the people of Pakistan are to be given a fair deal.

Email: adnanadilzaidi@gmail.com