Judicial reform

The writer is a lawyer based in Islamabad

A conference on the implementation of the National Judicial Policy 2009 announced by the National Judicial Policymaking Committee is underway at the Supreme Court this weekend. The idea is to get a larger buy-in from major stakeholders and constituent units of our justice system, bounce off ideas on how to practically realize the ambitious goals laid out in the National Judicial Policy, put in place a monitoring mechanism to confront the challenge of implementation, and to reiterate the resolve of our independent-minded judiciary to change the way justice is meted out in this country. The twin foundational objectives of the policy – to eradicate delays in disposal of cases within one year and exhibit zero-tolerance for corruption – are spot-on, even if the timeline proposed to accomplish them seems a bit unrealistic.

It is true that the policy does little more than laying out strict timelines for disposal of urgent matters, instructing courts that inordinate adjournments are not to be granted, and reminding everyone that various statutory provisions that are already binding law in Pakistan must be abided by. And yet the lurking scepticism that the goals of this policy might not be realized highlights on the one hand the extent to which our justice system is broken and on the other the need for the state and the society to throw its weight behind the reform of our justice system. A reformative policy and an effective monitoring mechanism are imperative for injecting a sense of urgency into the otherwise lacklustre judicial proceedings that grind along for years and are the bane of ordinary litigants struggling for their rights to be upheld. But it is not sufficient to cure our nonperforming justice system.

More will need to be done by the judicature, the executive, the legislature and the civil society if we are to build on the values crystallized and the momentum built by the rule of law movement. There are two sets of changes that we need if the twin-goals of the National Judicial Policy are to be achieved: administrative/technical changes; and behavioural/adaptive changes. And here when we speak of the goal of addressing delays and reducing pending cases, we are not even proposing ways to reduce litigation or lodging of cases in the first place – a huge area in itself that needs to be addressed separately.

The decision of the Judicial Policy Making Committee to issue the National Judicial Policy and recall all judges performing executive duties is part of the administrative or technical changes required to revamp our ineffectual court system. But this only a step in the right direction. We need more judges, we need to introduce emolument packages that attract the smartest legal minds to the judicial service, and we need to introduce the concept of effective continuous training and education to the judicial branch to keep our judges abreast of evolving areas of law and jurisprudence. The issue of continuous legal education for judges is within the grasp of the judiciary. The federal judicial academy and provincial academies must be transformed into centres of learning and excellence, the curriculum must be redesigned to instil appropriate breadth, depth and vision in the programs of study, and the faculty must possess an appropriate mix of academic expertise and professional experience instead of being a docking ground for judges in the post-sunset phase of their careers that it presently is.

Developing continuous legal education programmes for both the bench and the bar is one area in the rule of law reform process where we can borrow from the experience and expertise of other common law countries as well as that of our own law schools. And the success of such initiative hinges more on the vision of the leaders of our bench and bar rather than resources. Enhancing the capacity of judges, in terms of their numbers and attracting the right individuals to judicial service, is an area where the PPP-led government will need to exhibit its "commitment to institutional reform" of the judiciary (its oft-repeated aphorism during its foot-dragging phase in the rule of law movement). As a country that has a total of around 2000 judges for a population of over 170 million, Pakistan would probably have one of the highest judge-population and judge-caseload ratios in the world.

It is not humanly possible for even a Herculean civil judge to mete out justice in the 100-200 odd cases listed before him for hearing during a workday. A judge needs time to review the case files, appreciate the evidence adduced, ensure that procedural due process is followed and apply his judicial mind while rendering a judgment. If we are to ensure that the emphasis on quick disposal doesn't result into whimsical judicial pronouncements, we will need to do more than simply enhance the work hours of judges and warn them that there will now be accounting of their performance. Judges must be judged not on the touchstone of disposal alone but also for the logic and wisdom of their rulings.

Should the government refuse to allocate appropriate resources to hire more judges, either pending cases will linger on or the emphasis on quick disposal will compromise the quality of justice done by our courts. And without a drastic upward revision in the salary package especially for members of the district judiciary we will continue to ensure that mediocrity reigns supreme within the foundational rung of our judiciary that defines the character of our justice system. While the salary structure of all state employees needs rationalization, given that a functional justice system is a prerequisite for a sustainable system of governance, there is good reason to start with the judicial branch if our resource constraints demand prioritization.

The success of the rule of law movement backed by mass public support, the opportunity for introspection forced upon members of our superior judiciary during their non-functional phase, the interest of the international community and donors in aiding Pakistan's justice sector and the emphasis on the need for performing institutions of justice to sustain peace as highlighted by events in Swat have all created an epochal moment. We now have a judicature that is itself spearheading a movement for internal reform, a society that is vying for a refurbished system of justice and many ex-patriots and international donors who are willing to invest in reconstruction of our composite legal system.

There could be many ways to finance reform and reconstruction, including the establishment a ring-fenced endowment fund comprising contributions from the government, donors and citizens for the exclusive purpose of paying for and sustaining the reform of our justice system. Such a fund, though unprecedented, if established and intelligently structured could contribute toward the sovereign reserves of the country while providing the judiciary with the required financial autonomy that is an essential part of our doctrine of judicial independence.

The bottom line is that it will be a real tragedy if we squander this historic opportunity merely because we did not have the imagination or initiative to find the required resources for legal reform at a time in our history when all other things seemed to be aligned in favour of constructive change. While all these administrative/technical changes are necessary, they are easier to introduce in comparison to the behavioural/adaptive changes required of individuals and institutions that together comprise the justice system.

Legal and judicial reform by nostalgia will not work for us. As insiders to a defunct system, judges, lawyers and law enforcement and civil administrative agencies that are constituent units of the justice system must not disavow their part and responsibility in creating the problem they are now trying to resolve. Objective self-evaluation and audit of past behaviour can help us accept responsibility for our collective conduct that bereft the bench of integrity and credibility, plagued the bar with unethical and unprofessional conduct, and reduced our legal system to a rotting monstrosity.

The challenge of reform and implementation of the judicial policy is in fact a larger challenge of reducing the gulf between the values espoused and propagated by the rule of law movement and our individual behaviour on an everyday basis. While we must continue to push for administrative and institutional changes, we must not avoid the pain of acknowledging our own hypocrisy and the myriad contradictions in our personal lives if we wish the reform of our justice sector to be real and sustainable.



Email: sattarpost.harvard.edu