The defining moment of Chief Justice Anwar Zaheer Jamali’s tenure was November 3, 2015, when he stood in the Senate of Pakistan –the first chief justice ever to do so – and proclaimed that there was nothing wrong with the justice system.
This was a time when, after the 21st Amendment, a national consensus had emerged that there was something wrong with our justice system and radical reforms were needed. A committee appointed by Prime Minister Nawaz Sharif had already presented its findings. It advocated radical changes, such as imposing heavy costs on the losing side in civil cases, granting judges the power to schedule cases, stricter regulation of lawyers, enforcing anti-perjury laws, and much more.
In January 2016, the Senate unanimously passed eight law reform bills which had a similar aim. The air was ripe with hope. But the chief justice maintained throughout his tenure a policy of studied inaction. The only effort that the chief justice made towards judicial reforms was to deliver a dozen odd, uninspiring lectures at lavish donor-funded dinners hosted by the Law and Justice Commission of Pakistan.
In the meanwhile, another bench of the Supreme Court thankfully kept the issue of judicial delays in the limelight. Perhaps to drive home the farcical reality of our judicial system, over the last few months, a bench headed by Justice Khosa has acquitted numerous prisoners. These inmates had, after waiting for around two decades to be sentenced, either already passed away or, worse, had been mistakenly hanged by the time their appeals were decided. The posthumous acquittals of these prisoners have confirmed, in a graphic way, the bleak picture of our justice system – which everybody in the country is familiar with. Cases take ages to conclude and, often, the segments of society who most need access to justice are the ones who are deprived of it.
With the swearing in of the next CJP, Mian Saqib Nisar, those of us who want a well-functioning justice system in Pakistan see a new ray of hope.
In the recent past, Justice Nisar has gone out of his way to make some sincere and bold statements about the issue of judicial delays. In MFMY v Federation of Pakistan (2015 SCMR 1550), he said, “a judiciary which … is tardy… and has no urge… and ability to decide the cases/disputes before it expeditiously… is a danger to the state and the society”. As he walks into the chief justice’s chamber, let us remind Justice Nisar that the judiciary he presides over is one of the tardiest in the world.
While high-quality statistics on the issue has never been gathered, a pilot study conducted with the Supreme Court concluded that the average high-stakes civil case which ends up in the apex court takes over two decades to conclude. Justice Khosa’s posthumous acquittal cases suggest the situation is similar for the criminal system. This can be compared with, for instance, the UK where the average criminal trial for a serious offence takes no more than one year. The same situation applies with the average civil trial involving more that £10,000. Less serious criminal and civil proceedings take, on the average, under seven months.
In MFMY v Federation, Justice Nisar also went on to prescribe the remedy for addressing delays which many countries in the world have adopted: the proactive case management by judges. He said, “the courts must, thus, exercise all the authority conferred upon them to prevent any delays which are being caused at any level by any person whosoever”. Let us hope that now, when the constitution has conferred vast authority upon His Lordship, he would exercise it for the noble cause of speeding up justice.
While the chief justice is the best available expert on this matter, there are two things he could do to immediately address the issue.
First, he should appoint a commission. Through an article published in Dawn, Salauddin Ahmed, the vice-chairman of the Sindh Bar Council, has urged the chief justice to appoint a full-time commission to investigate the causes of the delays and devise reforms. He argues that a Supreme Court that is, under Article 184(3), willing to constitute commissions to investigate the Memogate scam, the Quetta suicide bomb attack and money laundering accusations against the PM’s family, should also be willing to constitute a commission to investigate and resolve these problematic delays. He proposes that the commission should include three sitting judges, one from the Supreme Court and two from the high courts. This is a sound proposal. But I would add that some reform-oriented judges should be included from the trial courts, where long delays are endemic.
Second, it should follow the lead of the Islamabad High Court (IHC)’s rule committee. Little noticed by anyone, the IHC has already made certain radical amendments to civil procedure so as to address delays. The basic idea, as explained by Judge Kamran Basharat Mufti, the chief architect of IHC reforms, is “shifting the control of civil litigation from the litigants to the courts, extending a proactive managerial role of the presiding officers”. The amendments are inspired by the reform experience of the US and UK, which used to have similarly delay-ridden court systems in the past that have recently been fixed. The new CJP should immediately look into these reforms.
Finally, whatever else is done, the illusion must never be entertained that the systemic reform of Pakistan’s judiciary is simply a technical problem – a neat and clean job. Were it a technical problem, the ADB-funded $350 million Access to Justice Project and various subsequent donor-funded multi-million dollar projects would have resolved it. Any form of judicial reform is a political struggle, an ugly job which is bound to create winner and losers, just like former chief justice Iftikhar Chaudhry’s movement did.
Pakistan would not have succeeded in establishing the kind of robust constitutionalism that it now has – with a few notable blind spots such as intelligence agencies – if Iftikhar Chaudhry had not taken the courageous steps he did and made himself numerous life-long enemies. These steps include the decision to sack almost half of all superior court judges, sending former prime minister Yousaf Raza Gillani home, charging Gen (r) Musharraf with treason and Imran Khan and Altaf Hussain with contempt. Speeding up the court proceedings might seem innocuous in comparison to establishing the rule of law. But even this task cannot be achieved without a full-scale judicial struggle.
While Article 37(d) of the constitution ensures “inexpensive and expeditious justice” to all the people of Pakistan, no chief justice in our history has ever delivered upon this promise. If the incoming chief justice wants to do something different, he should be willing take on everybody who is responsible for the delays. These include senior judges and lawyers, powerful bar association leaders and, perhaps, the legal fraternity as a whole. The only durable friends an honest chief justice can afford to have are the people of Pakistan – the obstinate, resilient millions who have never seen a glimpse of “inexpensive and expeditious justice” and yet, to their credit, have never stopped dreaming about it.
The writer is a partner at The Law and Policy Chamber.