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Overhauling justice system

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. Administration and dispensation of justice under the various laws in Pakistan need serious attention-there is a consensus that the entire justice system is at the brink of collapse. There is an urgent need to ensure justice for all, rule of law, fairness, equity and independence of judiciary.

A significant initiative towards quick dispensation of justice was taken by the National Judicial Policy Making Committee (NJPMC) by announcing a policy, enforced with effect from June 1, 2009. In its concluding session on May 17, 2009, held under the chairmanship of then Chief Justice of Pakistan, the NJPMC approved the National Judicial Policy [NJP] containing various short-term and long-term measures for early disposal of cases. The following were significant steps of NJP:

1. All pre/post-arrest bail applications would 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 enumerated for improving the plight of prisoners. Provincial governments 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, was to carry out inspection of prisons periodically for ensuring compliance within prison rules and giving on the spot remedy/relief to the prisoners according to the law.

3. In civil matters, all writ petitions under Article 199 of the Constitution should be fixed for preliminary hearing on the next date of its institution 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 the Order 37 of CPC regarding suits upon bills of exchange, hundies or promissory notes should be decided through 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 backlog under different categories, special benches would 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 backlog (filed on or before Dec 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 the 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.

There is no follow-up report available how successfully the above decisions have been implemented during the last 18 years. Data show that litigation has increased and backlog is still huge. It proves that the real need is total reformation process and not mere patch work here and there. If causes for 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 huge number of cases, the complainants crying for early orders but have to wait for years (sometimes decades), and the Government keeps on worrying about the colossal amount of money blocked in litigation process.

The Supreme Court elaborated the principle of separation of judiciary from executive in Government of Balochistan v Azizullah Memon PLD 1993 SC 31 by holding that “separation of judiciary from executive is the cornerstone of independence of judiciary”. But practically, this principle is still not followed in tribunals controlled by federal and provincial law ministries/divisions. All the political parties in power appoint in quasi-judicial tribunals, their favourites who are both incompetent and corrupt.

The right of access to justice to all is a well-recognized 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 which shall be separate from executive and not at its mercy or depending on it”-PLD 1982 SC 146. 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 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 justice system, there can be two options: either reform the existing system or introduce an entirely new structure. A national debate is needed on this issue. In a democratic setup, 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: 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 present judicial system:

Prevalent problems:

— Quality of adjudicators/judges

— 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

— Selection through parliamentary 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 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 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 unnecessary 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 no need for enormous litigation. It is shameful that presently the State itself is the main litigant. It usurps the rights of people and then drags the poor citizens in courts. First of all, the Supreme Court should establish a commission to determine the reasons for this sorry state of affairs. The principles underlying reforms should not mean forcing unnecessary litigation and then its quick disposal but to help reduce its occurrence.

Huzaima Bukhari and Dr Ikramul Haq, "Overhauling justice system," Business Recorder. 2017-12-01.
Keywords: Law and Humanities , Judicial system , Justice system , Economic reforms , Judicial reforms , Supreme court , Pakistan , NJPMC , PLD

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