Wednesday November 30, 2022

Judicial reforms

May 30, 2018

Amidst criticism targeting the performance of the judiciary, the Law and Justice Commission of Pakistan (LJCP) organised a judicial conference earlier this month. The conference concluded with the passing of the ‘Islamabad Declaration 2018’ aimed at bringing reforms in the judicial system within four months.

The timeframe is overly ambitious, but our senior judiciary seems genuinely committed to bring about reforms. The declaration is, indeed, very timely given Pakistan ranks 105 out of 113 countries in the World Justice Project Rule of Law Index 2017-2018.

The Islamabad Declaration included recommendations on (1) regional economic integration and effective dispute resolution in the context of CPEC; (2) alternative dispute resolution methodologies; (3) strategies for delay reduction and expeditious case disposals; (4) legal education and uniform judicial selection criteria; and (5) revamping the criminal justice system.

Of all these themes, reduction in delays and expeditious disposal of cases stand out the most. Subject to the LJCP’s recommendations, the conference’s participants noted that the four-tier court system should be replaced with the three-tier system: trial court, high court, and the Supreme Court (SC). This means that a trial conducted in the trial court must attain finality in the first appeal before a high court. The SC should only interpret and adjudicate points of law. This would decrease the burden of the SC and further help in reducing delays.

When a leave-to-appeal is granted, the SC has to undertake a reappraisal of the evidence which consumes a lot of time. Moreover, the time spent in the appreciation of evidence in the trial and high courts is effectively wasted. If facts are determined in the high court, a substantial amount of time in the final adjudication of the cases in the SC will be reduced.

The conference’s participants also criticised the proliferation of separate or special courts in Pakistan, noting that the additional sessions judges –rather than separate anti-terrorism and military courts – could try anti-terrorism cases. Environmental, corruption and narcotics cases etc can also be tried by the additional sessions judges rather than by special courts and tribunals. In this way, in case there is an objection of jurisdiction, the time and effort put into getting cases transferred from an anti-terrorism court to another court of criminal jurisdiction would be saved. Furthermore, assigning a particular category of cases to the additional sessions judges would keep all courts under one hierarchy, helping in quick administration and disposal of cases. This would also enable the sessions judges to handle various types of cases under the mainstream judicial system.

Moreover, the participants noted that laws causing delays should be repealed – for example Sections 22-A and 22-B of the Criminal Procedure Code (CrPC), 1898 – under which the sessions judges pass judicial orders concerning registration or non-registration of a criminal case or harassment by police. They pointed out that the complaint-handling mechanisms envisaged in the Police Order, 2002, should be effectively used. Complaints against police officials may be addressed by executive orders within the hierarchy of the police department. This would save courts the time spent on the disposal of complaints against the police force. The district courts would then be able to spend more time on other cases by conducting day-to-day trials.

With regard to processing of cases in the trial courts as well as in the appellate and constitutional courts, the attendees recommended that the process could be expedited with the help of technology. Fresh cases could be filed electronically and automatically fixed for hearings. Even judgments could be dictated with the help of voice-recognition softwares. Similarly, technology can be used in compiling evidence and presenting it in criminal trials via video-link. The legal fraternity could also use technology to examine large swathes of existing case laws more quickly, helping them refine their arguments and save more time in court.

Furthermore, alternative dispute resolution (ADR) methods could be integrated in two ways to reduce the existing backlog of cases – both for formal judicial processes and for those who cannot afford to bring their disputes before the courts and hence, avoid litigation. This is a particularly important proposal because it promises to deliver justice to the voiceless in our society.

Finally, and perhaps most importantly, the problem of unnecessary adjournments was also discussed in the conference. It was observed that adjournments should not be sought by the bar and neither should they be granted by the courts, except in exceptional circumstances. The Code of Civil Procedure, 1908, and the CrPC 1898, may be amended to specify ‘inevitable exceptions’ for adjournments. Moreover, meaningful cooperation between the bench and bar was highlighted to avoid frequent adjournments.

The chief justice of Pakistan (CJP) has demonstrated a strong will to implement these recommendations by constituting a committee headed by a senior SC judge, Justice Asif Saeed Khan Khosa. It is not expected that these reforms will be executed over the next four months. However, all stakeholders should fully support these reforms for the overall improvement of our justice system. At the same time, the Supreme Judicial Council, headed by the CJP, should conduct an audit of the performance and accountability of judges in order to make judicial reforms effective.

The writer is a lawyer.