In his first speech, Prime Minister Imran Khan emphasised the need for institutional reforms in almost every sector, including the justice system.
However, without reforming the justice system immediately, reforms in other sectors may not be entirely successful. In this article, we will focus on two major reforms: the merit-based appointment of superior courts judges and state counsels, and the systematic performance reviews for these officials.
In the past, justice sector reforms have often emerged and ended with a particular chief justice and haven’t been properly institutionalised. For instance, Justice Syed Mansoor Ali Shah initiated reforms in the Lahore High Court. But soon after the honourable judge was elevated to the Supreme Court, these reforms slowed down. The same pattern surrounds the Supreme Court chief justices.
These institutionalisation failures weaken the implementation of reforms. At the 8th Judicial Conference, held in May 2018, it was declared that the reforms would be executed in four months. The declaration included extremely ambitious recommendations on regional economic integration and effective dispute resolution in the context of CPEC; alternative dispute resolution methodologies; strategies for delay reduction and expeditious case disposals; legal education and uniform judicial selection criteria; and revamping the criminal justice system. So far, no reforms have materialised. Even the chief justice has said occasionally, “he has been unable to put his house in order”.
Superior Court judges are appointed under Article 175-A of the constitution, which authorises the chief justice of a high court to nominate a lawyer for judicial appointments by the Judicial Commission of Pakistan. Those with the right connections are often appointed notwithstanding their competence or integrity. Article 175-A may be amended to provide a fair opportunity to those who have the right skills and aptitude.
In the UK, candidates have to go through a written test, situational questions, role-playing exercises, and interviews under the Constitutional Reform Act, 2005. Candidates are accordingly shortlisted and then considered for judicial appointments. In Pakistan, a competitive judicial examination and interviews could be introduced as well.
The composition of the Judicial Commission of Pakistan may also be revised to make appointments more collaborative. There is no harm if, as in the UK, professionals from non-legal fields are also represented in the commission. The judges are to deliver decisions in a complex sociopolitical and economic context. Their judgements have effects beyond the matter in dispute. Therefore, the judicial appointment process has to be more dynamic, transparent, and inclusive.
Professional competence and integrity should be the only basis for judicial appointments and extraneous factors like sociopolitical stature shouldn’t be taken into account. In order to enhance the jurisprudential quality of judgments, renowned law professors may also be appointed as superior court judges.
Further, appointments in the attorney-general’s office and the advocate-general’s office may be made on merit rather than the sole discretion of the president and the governor of each province. Article 100 and Article 140 of the constitution, which provide for such appointments, may be amended to encourage this. If these offices are stuffed with political appointees and their performance is not monitored, the cause of good governance and rule of law, as highlighted by PM Khan, will be compromised.
Finally, there should be systematic reviews to gauge the performance of superior court judges as well as the attorney-general and the advocate-general’s office, particularly with reference to their understanding of law, their ability to ascertain relevant facts, and their skills in logical reasoning, legal analysis, judgment writing, case management, and efficiency.
It is a common grievance that cases aren’t decided in a speedy fashion due to the lack of adequate legal assistance by state counsels or the poor appreciation of facts or law by judges. Some cases are heard quickly while others are thrown into cold storage. The selective or random prioritisation of particular cases delays the disposal of other cases. As a result, the performance of judges and state counsels should be reviewed far more rigorously. Anonymised performance data should also be made available to researchers and the Supreme Judicial Council, enabling them to conduct objective studies and recommend policy changes.
According to a recent statement, there are 36,344 cases pending in the SC. There is a huge backlog of cases in high courts and district courts. Usually, court cases remain pending for years.
Our justice system is poorly ranked. Pakistan ranks at 105 out of 113 countries in the World Justice Rule of Law Index 2017-2018.
It is a welcome step that the PM has expressed a strong desire to improve rule of law and ensure the delivery of justice. It is expected that a new government and judicial policymakers will consider essential reforms like the ones proposed here. As the PM pointed out, there is a pressing need for the quick disposal of cases involving widows and orphans. But it is not just a matter of a speedy disposal for particular types of cases. Sector-wide judicial reforms must be institutionalised.
The writer is a lawyer.