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December 27, 2019

Judicial challenges


December 27, 2019

With the appointment of Justice Gulzar Ahmad as the 27th chief justice of Pakistan (CJP) on December 21, 2019, there are expectations that the much-needed reforms in the judicial system will take place as he has in-depth knowledge of the maladies faced by it, and possesses the determination to remove them.

The previous CJ, Justice Asif Saeed Khosa, achieved a lot during his tenure of 337 days (about 235 working days). Justice Khosa, while speaking at the inauguration ceremony of mobile-app SC Call Centre, a complete video-link facility in five courts as well as a research centre, in Islamabad on November 20, 2019 reminded that “the judiciary worked tirelessly to provide justice to the people with less resources – only 3,100 judges worked hard and decided 3.6 million cases in a year. [The] judiciary decides all cases on merit and does not differentiate between rich and poor”.

During the tenure of Justice Asif Saeed Khosa as CJ of Pakistan in 187 working days, the judiciary concluded some 73,000 trials besides disposing of a large number of criminal cases, pending since 1994. The majority of the appeals filed in these criminal cases were of poor and weaker people.

On his retirement, in 23 districts of the country, there was not a single case of narcotics that remained pending. In 20 districts, there was no family matter case pending and in 29 districts, there was not a single case of rent appeal pending as well. Additionally, the Supreme Court took steps for police reforms and the post of SP Complaint Cell was created in each district which helped reduce 30 percent burden of cases on district courts and 15 percent on high courts.

The Supreme Court under Justice Khosa during 235 working days decided as many as 15,555 cases – despite many larger benches of the court being busy with some important cases that consumed a lot of time.

At the full-court reference held on the eve of his retirement, Justice Asif Saeed Khosa regretfully noted that “a malicious smear campaign” was being launched not only against him but also the judiciary after the detailed verdict was announced in the high treason case, and added: “I strongly reject the allegations and believe that truth always prevails”.

At the full-court reference, the new chief justice observed that those involved in corruption and illegalities needed to be “dealt with deterrence” for this was the most basic and fundamental scourge “that did not allow the country to grow and prosper”. He said that “the most essential need of the time is that the state should build and provide for civic infrastructure so also the civil infrastructure, and such should be done and achieved, keeping in line with the time and pace of the ever-progressing world”.

The new chief justice made it clear that “using suo-motu powers is also part of the constitution”. While paying rich tribute to Justice Asif Saeed Khosa, he said “his decisions had been a delight to read for those within the legal profession and those without.

It is a sad reality that our courts are working below the sanctioned strength and in an outdated fashion. Excessive and unnecessary litigation is symptomatic of various ills in society. Instead of removing the causes of litigation, only symptoms are being cured by increasing the number of judges, chambers and giving more room to lawyers to fleece helpless citizens. The number of judges and courts even if increased many hundred times would not end the real malady – lack of socio-economic justice in society, and good governance. These alone can stem the rising tide of litigation.

During the last many decades nothing worthwhile has been done by the legislature to bring fundamental changes in the existing exploitative, anti-people, elitist structures. A reform agenda for the judiciary, executive or legislature based on patchwork here and there can never succeed. There is a need to replace the prevalent decayed and disintegrating systems with modern and efficient models working successfully in other countries. Since Independence, we have failed to reconstruct/modernize/democratise our obsolete state institutes.

The available data confirms that every month more cases are filed than disposed – choking the justice delivery system. Even simple solutions like awarding costs to frivolous litigants, adjournment only in exceptional circumstances, appeal by leave of court only, and active case management etc, have not been adopted, what to speak of structural reforms and updating of procedures.

We all know the issues faced by our decadent judicial system – complexity of procedures, outdated methods, lengthy hearings, highhandedness of public functionaries, lowering standards of pleading and adjudication, rich parties taking advantage of law houses of relatives of serving judges (in India in terms of Rule 6 of the Advocates Act, 1961 no relative of a judge can practice where the judge is serving). Unfortunately, in Pakistan, there is no political will to remedy these shortcomings/maladies. These are daunting challenges.

An efficient justice system can only be established if efforts are made to produce highly competent adjudicators at the lower level, who are recruited transparently by a board of professionals and not serving judges, and trained extensively at a centre of excellence or a reputed university. This will help produce competent judges for higher courts in the future. All appointments of members in all the special tribunals must be through the same procedure.

A judicial committee could look into appointments already made on a political basis in these tribunals and incompetent members should be declared as disqualified to sit on benches.

The main aim of judicial reforms should be elimination of unnecessary litigation and facilitating smooth running of affairs between the state and its citizens. Once both learn to act within the four corners of the law, there will be no need for enormous litigation. It is painful that at present the government is the main litigant. It usurps the rights of people and then drags poor citizens in courts.

It is hoped that the new chief justice will soon establish a commission to determine the reasons for this morbid state of affairs and how to rectify the situation. The main purpose of judicial reforms should be ending unnecessary litigation and for this all the three pillars of state – legislature, executive and judiciary – will have to work hand-in-hand.

The writer is an advocate of the Supreme Court and adjunct faculty at LUMS.

Email: [email protected]

Twitter: @drikramulhaq