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February 16,2018

Judicial activism for judicial reform

Umer Gilani

“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”. These powerful words, equating a delay-ridden judiciary with a national security threat, were penned down by Justice Saqib Nisar in ‘MMFY Industries v Federation’ (2015 SCMR 1550) back in 2015.

Since becoming chief justice of Pakistan in 2017, Chief Justice Saqib Nisar has repeated the point he first made in MMFY: that the judicial system of Pakistan needs institutional overhaul and the whole country needs to come together to do something about it. The response from our political legal circles to this reform call has thus far been lukewarm. Judicial reform, it seems, is not a priority item on the agenda of the country’s political and legal elites.

This is why, on February 1 this year, a number of colleagues and I, all practising lawyers, filed a constitution petition in the Supreme Court of Pakistan urging the court to exercise judicial activism for bringing about judicial reform. The idea behind our petition is simple: charity begins at home. The petition has been registered but is yet to be fixed for hearing. Whenever we get a chance to address the Honourable Supreme Court, we will urge it to use the same tool for reforming the administration of justice which it frequently deploys against the executive and legislative branches of government: judicial activism.

We want to draw the attention of the Supreme Court – and of the people of Pakistan – to the following six salient points. First, let’s look at the facts. At present, Pakistan’s ranking in the Word Justice Index is 106th out of 113 countries studied; in the World Bank’s Ease of Doing Business Survey, our ranking is 147th out of 190 countries studied. The Supreme Court’s own figures show that the average shelf-life of a moderately complicated civil dispute is over 25 years. The average number of hearings it takes to conclude a civil trial in Punjab is 58.

Second, blame should be assigned where it rightfully belongs. Whenever the issue of delay in the dispensation of justice comes up, we – judicial administrators, judges and lawyers – conveniently shift blame to the politicians who grace our parliament, the civil servants who staff our governments or the colonial masters who left this land more than 70 years ago. That’s not fair. Judicial administrators, judges and lawyers must accept the lion’s share of blame for the failure of our justice system. We have failed the nation and only a candid confession of this failure can open for us the doors of redemption. This is why one of the principal respondents in our petition are the five Honourable High Courts of Pakistan. We want to promote introspection amongst fellow members of the legal community.

Third, we have drawn attention to the oft-ignored and little-used ‘regulatory powers’ of courts. There are numerous provisions in our law which empower judges to regulate the functioning of courts. Judges can impose ‘costs’ on those litigants who file cases (including applications, appeals, reviews and revisions) which are frivolous or they can penalise lawyers who ‘abuse the process of the court’ by, amongst other things, causing unnecessary delays; and they can prosecute and punish witnesses who commit perjury by submitting affidavits or giving oral testimony which they know is false.

The ground reality is that judges in Pakistan do not exercise regulatory powers. They don’t impose cost, prosecute perjurers or penalise abuse of process. The result is a lawless legal arena where the most unscrupulous elements of society thrive while genuine litigants struggle to obtain expeditious justice. The Supreme Court must direct courts below to start exercising these ‘regulatory powers’ proactively.

Fourth, we want to press a point of constitutional law which has never been properly appreciated before. In our constitution scheme, it is the judiciary – and not the governments or parliament – which holds primarily responsibility for ensuring the efficient functioning of courts. Articles 202 and 203 of the constitution obligate the high courts to “control” the functioning of courts subordinate to them, and also empowers the high courts to make procedural law for this purpose. The high courts can, for instance, frame rules to fix mandatory time-limits for different kinds of cases and to facilitate better management of cases by judges. As of now, no time-limits have been prescribed for the most frequently filed categories of cases such as suits for declaration, suits for permanent injunction, suits for recovery of damages and writ petitions.

Work on ‘case management rules’ has finally started, courtesy of the one-man crusade led by His Honour Judge Kamran Mufti of the Islamabad district judiciary. But these high court-led reform efforts need to be stepped up. The Supreme Court can play a critical role in persuading the high courts to carry out much-needed reforms.

Fifth, we have called for reinterpretation of those provisions of procedural law which vest courts with ‘sanctioning powers’. The courts do have the power to dismiss cases which are groundless, to decide cases ex parte, to close the right of defence of a non-cooperative party, to order arrest of delinquent witnesses and so on and so forth. However, over the course of years, the superior courts have, through interpretation, completely diluted the effect of these provisions of law leaving the lower courts defenceless against dilatory tactics. The Supreme Court needs to recognise that the functioning of trial courts can only be improved by allowing them to exercise their sanction powers more frequently than is presently the case.

Last but not the least, we have urged the Supreme Court to make public the judiciary’s performance-related data. The people of Pakistan have a right to know figures like the average time it takes for a case to go from start to end (shelf-life statistics) and the average number hearings this requires. Without such data, there can be no public accountability of the justice system. If transparency is good for other institutions, then surely the same principle should apply to the judiciary too.

As petitioners, we believe that the ‘katchehri culture’ of this country will be transformed if the Supreme Court is able to match its inspiring reform talk with equally daring actions.

The writer is a partner at The Law and Policy Chamber.

Email: umer.gilanigmail.com


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