Saturday January 29, 2022

The high court’s woes

July 21, 2019

Political commentators tend to think that 'political' cases – the likes of the Avenfield case, the Al-Azizia case and fake accounts case – are the biggest headache facing the Islamabad High Court. But legal insiders know that nothing could be farther from the truth. Every day, as a judge of the Islamabad High Court walks into his chamber at 9am in the morning, the biggest issue confronting him is something else.

It is an issue which no one in the corridors of power is willing to talk about: human resource crunch. The heavy burden of the country’s most important high court is being shouldered by a grand total of four justices. At least since 2015, the justices have been complaining about it but little heed has so far been paid.

To get a better idea of the issue, let us first look at the court’s jurisdiction – or, in the jargon of management science, its job description. First and foremost is the court’s writ jurisdiction. Under Article 199 of the constitution, the high court has a duty to hear petitions filed by any citizen who claims to be aggrieved by any actions of the federal government or its officers.

No less important than the high court’s writ jurisdiction is its ordinary appellate jurisdiction. There are over 70 subordinate judges presently working in the Islamabad Capital Territory (ICT). These judges decide all kinds of civil, criminal and family disputes which arise between the over two million residents of the Islamabad Capital Territory. The high court has a duty to hear appeals against the decisions of the all these judges.

Third, the high court is also supposed to hear appeals from numerous federal regulatory bodies such as Pemra, PTA and the SECP. This jurisdiction makes it the ultimate arbiter of the scope of freedom of speech on electronic media and freedom of business in the stock market and the telecom industry. Fourth, as the custodian of citizens’ liberty, the high court hears a very large number of applications for bail, especially those arising from tough special laws such accountability law and anti-narcotics law.

Fifth, the high court also acts as the Companies Court for the ICT. Beside judicial work, the Companies Court also performs some rather demanding quasi-administrative functions. Finally, and this would seem strange to lay persons, the IHC sits as an appellate court over its own orders. In a very large number of cases, when a single IHC judge passes an order, appeal against it had to be heard by a two-member bench of the same court.

If you add up all these categories, there are, at present, over 18,000 cases pending adjudication before the high court. Every year, no less than 6,000 fresh cases are being added. A total of four judges are supposed to handle all of this workload. Even if seven judges were appointed in the near future, the maximum number permissible under the IHC Act 2010, each judge would still be battling a caseload in excess of 3,000 cases per judge. This means that if each high court judge were to work for 250 days a year, he would have to announce judgment more than 12 cases per day in order to clear the pendency. This is clearly not humanly possible – not unless we are willing to sacrifice the essence of justice altogether.

Add to this the administrative responsibilities cast upon judges of the high court by the constitution. Under Article 203, the high court is the “administrator” of all the subordinate courts located in the ICT. It handles appointments, promotions and transfers of over 100 judges. It also plays an important role in the issuance of practice licences to lawyers. Under Article 202, the high court is also supposed to draft procedural laws and policies for the courts below it.

The result of saddling so few persons with so much work is predictable. Delays are endless. Lawyers are frustrated because they almost never get a proper, decent hearing. And judges, especially the good ones, are suffering from rapid burnout. This situation is unfair to the judges, lawyers and litigants alike.

The solution is not as difficult as some people make it sound. First, parliament should amend Section 3 of the IHC Act which stipulates that the maximum number of judges is seven. In December 2018, the government introduced a bill in the National Assembly for this very purpose. This was a step in the right direction. After smooth sailing through the National Assembly and the Senate Standing Committee on Law, the bill was unfortunately defeated on the floor of the Senate floor on June 1, 2019 – because of a stand-off between the treasury benches and opposition. The government can, and should, urgently introduce a new bill after due consultation with the opposition.

Second, the chief justice of the Islamabad High Court should create specialized benches, once he has a larger number of judges at his disposal. If judges were only hearing cases falling within their subject area specialization, they would be able to arrive at faster, more fair and consistent decisions. Most jurisdictions of the world are moving in this direction.

Third, the Judicial Commission of Pakistan needs to make its move. The last time it appointed a judge to the Islamabad High Court was in 2015. Since then, despite the crisis situation, the nominations process has not culminated in a successful appointment. Fourth, parliament needs to sit down at the drawing board and re-examine the high court's jurisdiction, which I have broadly outlines in this article. The role of the high court could be confined to hearing appeals. For handling all other matters, including judicial review applications, separate specialized courts and tribunals can be set up.

The problem is that those at the helm of affairs do not seem to realize that their inertia is causing suffering every day. Litigants are facing delays, lawyers are facing rushed proceeding and judges are suffering from burnout. An intervention is needed.

The high court is supposed to listen to everyone’s grievances. Why is no one listening to the high court’s grievance?

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