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New Chief Justice, old challenges

In any society, administration and dispensation of justice should be the top most priority. A society without a sound, reliable and speedy judicial system, which does not ensure effective dispensation of justice, cannot progress or even survive for a long. Administration and dispensation of justice under the various laws in Pakistan need serious attention as the entire system is on the brink of disaster. There is an urgent need to ensure quick dispensation of justice, enforcement of rule of law and independence of judiciary from the control of administration.

The initiative in the form of National Judicial Policy Making Committee (NJPMC), enforced from June 1, 2009, needs a serious appraisal as it has failed to produce the desired results. In its concluding session on May 17, 2009, held under the chairmanship of the then Chief Justice, the NJPMC approved the National Judicial Policy containing various short-term and long-term measures for early disposal of cases. The following were some of the steps proposed:

1. “All pre/post-arrest bail applications will be decided within seven days. Criminal cases, punishable with imprisonment up to seven years registered after January 1, 2009, would be decided in the shortest period, which should not exceed six months and cases punishable with imprisonment exceeding seven years, including punishment of death, should be decided within one year.

2. Special steps are suggested for improving the plight of prisoners. Provincial governments are directed to establish new jails at district level or enhance the capacity of existing jails by constructing new barracks. A High Court judge, along with District and Sessions judge, will carry out inspection of prisons periodically for ensuring compliance with prison rules and giving on the spot remedy/relief to the prisoners according to the law.

3. In civil matters, all writ petitions under the Article 199 of the Constitution should be fixed for preliminary hearings and disposed of as quickly as possible. Writ petitions involving service matters, including promotion, transfer and admissions of students in professional colleges and allied matters, should be decided within 60 days. All stay matters under Order 39 Rule 1 & 2 read with section 151 CPC should be decided within 15 days of grant of interim injunction and in case of delay the reasons should be furnished to the high court.

4. Rent cases should be decided within four months in trial courts and appeals should be decided within two months. Family cases, including custody of minors, succession certificate, letter of administration, insolvency and maintenance, should be decided within six months. Civil appeals arising out of family cases, custody of minors and against interim order should be decided within 30 days.

5. Cases filed under Order 37 of CPC regarding suits upon bill of exchange, hundies or promissory notes shall be decided through a summary procedure within 90 days.

6. Cases relating to banking and different taxes and duties such as income tax, property tax, etc, should be decided within six months.

7. Labour and environmental cases should also be decided through fast track. Judges of labour courts and tribunals should be appointed amongst the lawyers qualified for appointment to be a district and sessions judge.

8. Priority should be given to quick disposal of women cases, juvenile cases, rent cases, stay orders, bail matters, small claims and minor offences under the Small Claims and Minor Offences Courts Ordinance 2002. The power of small claims and minor offences court may be conferred to all civil judges.

9. For clearing backlogs under different categories, special benches will be constituted for each category on the principal seat and branch registry of the Supreme Court and high courts. There will be commitment of judges to decide the old civil and criminal cases up to 2008 within one year. District judges will also adopt such measures that ensure handling of 50% of cases from backlogs (filed on or before December 31, 2008) and 50% from current cases.

10. For conducting elections, the services of judiciary in future will not be available. The focus of judiciary will be on disposal of cases to redress grievances of the people by dispensation of justice. If the government feels that the election should be held under the supervision of judiciary, then a request may come and the NJPMC would decide as to what extent and in what form help can be extended in the conduct of elections”.

After more than seven years, implementation of National Judicial Policy is still a far cry. The working of existing dispute resolution system, based on conventional appeal and review system under various statutes, is highly unsatisfactory. It confirms that unless there is total reformation of the system, these problems will persist. If causes for unnecessary and avoidable litigation in society are not removed, the system will remain choked. More and more judges will be required to cope with the ever increasing number of cases at all levels. Everybody is totally dissatisfied with the existing justice system. Those imparting justice complain of lack of facilities and extraordinary number of cases, the complainants cry for early orders but have to wait for years (sometimes decades), and the Government keeps on worrying about the blockade of colossal amount of money in litigation process.

Justice Mian Saqib Nisar, who took oath as 25th Chief Justice of Pakistan on last day of 2016, highlighted these issues in his speech on April 3, 2016 at his alma mater:

“I am not happy about the functioning of the current justice system in the country and the main reason behind its failure are judges themselves. I decided a case a few days ago which was 54 years old, which showed the failure of the judicial system. We are not making progress unluckily due to non-functioning of our justice system. It is a responsibility of the judges to provide justice to the people of this country. I believe that the confidence is a key to what I have achieved in his life, and this sheer confidence was inculcated in me by the Government College Lahore, where I had not only studied but also spent most cherished moments of my life. The basic difference between developed and under-developed countries is education and justice; the countries which have quality education and the rule of law are developed countries. Indeed, it has become mandatory that we immediately lay a foundation for a strong justice system and if we fail to lay this foundation, our sustainability will be in question. Laws are there but their effective implementation is lacking. We need to train our judges to strengthen the judicial system of the country”.

The right of access to justice for all citizens of State and even for aliens coming for temporary stays is a well-recognised inviolable right enshrined in the Constitution of Pakistan. It concludes “the right to be treated according to law, the right to have a fair and proper trial and the right to have an impartial court or tribunal. Justice therefore can only be done if there is an independent judiciary (PLD 1982 SC 146), totally separate from executive, comprising of competent judges.

The honourable apex court of Pakistan has elaborated the principle of separation of judiciary from executive in Government of Baluchistan v Azizullah Memon PLD 1993 SC 31 by holding that “separation of judiciary from executive is the cornerstone of independence of judiciary”. But practically, every regime has violated this principle. The most recent appointments under the present regime in tax and other tribunals speak for themselves. Recently, in the internal meetings, it was decided that all appointments at quasi-judicial fora, Federal Tax Ombudsman, chairman and members of the federal service and other tribunals will be made on the recommendations of the party leadership. The same was the declared policy of the previous government (Press statement of October 7, 2004 of then Federal Law Minister, Wasi Zafar).

It is a matter of record that none of the governments in Pakistan, military or civilian, has ever followed the directions of the honourable apex court. In the given Pakistani political milieu, it is imperative that all the judicial and quasi-judicial authorities should be regulated and supervised by the High Court under whose territorial jurisdiction they work. This is the only way to ensure independence of judiciary in its true substance and constitutional requirement [Article 203].

In the process of revamping our justice system there can be two choices; reform the existing system or introduce an entirely new structure. A national debate is needed on this issue. In a democratic set-up it is necessary to debate a question of such a sensitive nature having far reaching effects on dispensation of justice and independence of judiciary. A thinker rightly pointed out that: It is better to debate a question without settling it than to settle a question without debating it-Joseph Joubert (1754 – 1824). The following issues must be debated vis-à-vis problems faced by the existing judicial system and for meaningful judicial reforms:

Prevalent problems:

— Quality of adjudicators/judges and provision for their training

— Specialised benches and appointment on ad-hoc basis of competent men to clear the backlog.

Selection process

— Delays – due to heavy pendency or irrational distribution of work

— Ineffective controls and poor management

— Cumbersome and time-consuming procedures.

Objectives for change:

— Need for professional adjudicators/judges and their continuous on-job training. Appointment of specialists for clearing backlog working as special benches.

— Selection through parliamentary/public hearing process

— Simple and cost effective procedures and rapid disposal of cases

An efficient justice system can only be established if efforts are made to produce highly competent adjudicators at lower levels. It will help produce competent judges for higher courts in future. All existing appointments of members in all the special tribunals created under Article 212 must be placed before the Chief Justice of the province in which the members are performing their duties. The Chief Justice himself or any other Judge authorised by or committee appointed by him may look into such appointments to approve or disapprove the same, which would be binding on the Federal Government. All existing and future appointments in appellate tribunals must be screened by the judicial organ of the State.

It is vital for the success of judicial reform strategy to go for a paradigm shift rather than patchwork or some changes here and there. The system must be forward-looking and supportive of the modern day needs. We are still following the outdated procedures and methods whereas many countries have adopted e-system for filing of cases and their quick disposal through fast-track follow up.

The main aim of reform measures should be elimination of massive litigation and facilitating smooth running of affairs between the State and its citizens. Once both learn to act within the four corners of law, there will be substantial reduction in litigation.

It is shocking and painful that presently the state itself is the main litigant and source of litigation. The officers of different departments act unlawfully and usurp the rights of people. The highhandedness and arbitrary use of powers by state functionaries drags the citizens in courts, majority of whom cannot afford the costly litigation. In this scenario, the apex court should establish a commission, headed by a retired judge of Supreme Court, representing all stakeholders to determine the reasons for the existing sorry state of affairs. The Commission must also suggest agenda for comprehensive judicial reforms. The principles underlying reforms should be elimination of massive litigation and quick disposal of existing backlog as well as how to reduce occurrence of avoidable litigation in future. The Commission must suggest roadmap for efficient justice system involving all organs of state-Legislature, Judiciary and Executive.

Huzaima Bukari and Dr. Imramual Haq, "New Chief Justice, old challenges," Business Recorder. 2017-01-06.
Keywords: Law and Humanities , Judicial process , Income Tax , Property tax , Criminal statistics , Constitutional law , Pakistan , PLD , NJPMC , CPC