Sunday July 03, 2022

Judicial repair

March 27, 2019

In his first few months in office, Chief Justice Asif Saeed Khosa has repeatedly highlighted the need to reform the judicial process. Most recently, he has called for the appointment of more judges in order to clear a backlog of 1.9 million cases that are currently pending in courts across Pakistan. The fact that the highest judicial officer of this land is keen to turn inwards and introspect comes as a breath of fresh air.

In welcoming this change, however, we must not forget that previous attempts to speed up our justice system by increasing the number of judges had only postponed the issue; not solved it. Bringing ad-hoc and piecemeal changes in procedure have had very limited affect as well. What we need instead is a holistic review of the entire legal framework to find out why so many disputes end up in our courts. Unless that is done, chances of meaningful judicial reform remain bleak.

To understand why, consider the following analogy between a country’s judicial system and a company’s repair and after-sales service. Suppose a large company provides a good called ‘justice’. If customers are disappointed with what they get or the product develops a fault, the company provides its customers with the option of taking the product to its ‘repair factory’ where the product can either be fixed or a refund be granted.

Now suppose that the ‘repair factory’ gets flooded with complaints when ‘Justice 2019’ is launched and runs out of enough manpower to process those claims. This leaves customers extremely dissatisfied. The factory chief alerts the company and says that he urgently needs more workers before the backlog piles up and spirals out of control. He also asks that the factory’s existing conveyor belt be replaced with a more efficient one in order to bring down the processing time.

The company’s board calls an immediate meeting. It examines the demands raised by the chief and orders an enquiry to ascertain why there have been so many complaints with the new product. Note how the board’s thinking diverges from that of the chief; the board is primarily concerned with finding out why there are so many complaints, while the chief is concerned with figuring how to resolve them expeditiously.

Our approach towards judicial reform has historically been that of the factory chief and the CJ’s call for appointing more judges is a continuation of the same trend. When we talk about amending the civil procedure, streamlining the appellate process, appointing more judges and providing speedy justice, we are focusing our energies on improving the process and increasing the output. Like the factory chief who is fire-fighting by fixing as many defective goods as possible once they have come through the conveyor belt, our proposals for criminal and civil justice reform are focused on expediting the adjudication process.

The board, however, not only wants to improve the process but is also keen to bring the total number of complaints down. This means that instead of focusing entirely on the rate of disposal – a factor of how efficiently claims are processed – we should also look at the rate of institution and ask why so many cases end up in our courts? Are people particularly litigious here? Or are courts burdened with issues like succession that can be better dealt with by other agencies like Nadra? Should the average time of deciding cases be brought down by trying to reduce the total number of cases filed in one year or should we leave that untouched and instead divide the projected workload over more and more judges?

Judges are ill-equipped to answer such questions because they are trained to think in an ex-post manner. When judges determine the guilt or innocence of a person, they are effectively being asked to use deductive reasoning. Policy reform requires ex-ante thinking and inductive reasoning which the legal mind is, in all fairness, not trained for.

This is where the Law & Justice Commission of Pakistan (L&JC) can step in. All good companies invest in R&D programmes to stay abreast of technological developments. The judicial system’s R&D housed in the L&JC should be urgently revamped and utilised for this purpose. Ex-officio members must be replaced with members who can work full-time for the commission and push data-driven reform.

Any R&D programme needs data and empirical evidence to work with. Without such information, it is impossible to provide good and reasonably accurate reform proposals. At present, there is no concerted effort being made to collect data with respect to the judicial system. Some rudimentary statistics are compiled and published each month but detailed metrics remain unavailable.

Unless this changes, we cannot conclusively determine which areas of the law are most litigious. For instance, land disputes clog our judicial system the most. If that is true, then we need to examine what aspects of land disputes are most common. Disputes where multiple buyers have been sold the same plot of land because the system of recording transfer of lands is archaic? Bona-fide disputes between adjoining landowners because land demarcation is based on the system of metes and bounds? Or inheritance-based disputes because oral gifts of land are still recognised as valid transfers? Each case requires a different policy response. One may require legislation for establishing a centralised land register that records conclusive title to land. The other may require outlawing oral gifts of land.

A country’s justice system is like a repair service that a company provides for customers who run into a problem. If the repair service is swamped with complaints, you can either hire more people to do the job or you can work on reducing the total number of claims by examining and re-configuring the product itself. For too long, we have prioritised the former over the latter. Perhaps, we should be doing both?

The writer is a lawyer.

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