It is a fact that nothing worthwhile has been done by Legislature-no matter whether under civilian or military rules-to bring fundamental changes in the existing exploitative, anti-people, elitist structures and replace outdated laws that are the real malady leading to non-delivery of services to the citizens. The reform agenda for Judiciary, Executive or Legislature based on patchwork here and there can never succeed, unless fundamental structural changes are made. There is an urgent need for replacing the prevalent, decayed and disintegrating structures with modern and efficient models working successfully in other countries with active people's participation. Since independence, we have failed to reconstruct/modernise/democratise our obsolete state institutions, and judiciary is no exception.
Mere cliché and rhetoric about reforms, as we have been hearing for a long time, will never serve any purpose. Mentioning about dearth of competent judges, delays in dispensation of justice, huge pendency etc alone is not enough-these are just symptoms of a very ailing system. The issue is that of a correct prescription for cure. Curing the symptoms without removing the root causes of illness will remain an exercise in futility. For example, how tax cases are decided in our country can be illustrated in the light of Supreme Court's decision in the case of Assistant Collector of Central Excise & Land Customs v. Mst. Siddiqan Afzal & Others [2007 P T D 1485]. This is a classic case of inefficiency and apathy on the part of the tax department and inordinate delay in dispensation of justice in Pakistan. The honourable apex court after taking into account the legal and factual positions held:
"Show cause notice to owner was issued after fifteen years of seizure of gold and eight years after coming into force of the Customs Act, 1969, gold now become liable to be returned to owner after two months of coming into force of Customs Act, 1969 as no notice was issued within the time prescribed."
For this act of blatant maladministration, the tax department in any civilized society would have been taken to task by asking to pay substantial pecuniary damages to the family. The accused passed away during litigation and his widow was unnecessarily and compulsively dragged in a long-drawn legal battle, which must have not only been costly but also agonizing for her. This exposes the efficacy of our tax judicial system. It is simply shocking that in a case where proceedings started in 1963 were finally settled in 2007. This is just one example. There are many others that can also be quoted. In a case reported as Crescent Distributors v. Customs, Excise & Sales Tax Appellate Tribunal & Others (2009 PTD 148), a simple dispute relating to whether a particular chemical item was exempt from sales tax or not was eventually decided in favour of the taxpayer after 9 years of struggle in Sindh High Court! Considering that sales tax law is applied on daily transactional basis it is indeed a pity that it took such a long time for the taxpayer to seek justice for a consignment imported almost nine years back.
Table A: Consolidated statement showing pendency, institution and disposal of cases during the period 1-15th June, 2020 in the Supreme Court of Pakistan, Federal Shariat Court, High Courts and District Judiciary
The latest data available on the website of Law and Justice Commission of Pakistan (L&JCP), show huge pendency of 2,041,229 cases during the period 1-15th June, 2020 in the Supreme Court of Pakistan, Federal Shariat Court, High Courts and District Judiciary. In the Supreme Court alone the pendency was of 45,125 cases. In 2018 [Table B] for the period 1-30 September 2018, total cases pending were 1,810,745 while Supreme Court had a pendency of 40, 243.
The data by L&JCP [Tables A & B] confirm that pendency has been increasing as every week/month more cases are filed than disposed-choking the justice delivery system. Despite this critical situation, no emergent plan has been prepared to deal with it. No effort whatsoever has been made till today for reducing the backlog and removing the causes of unnecessary litigation. Our courts are still following the outdated procedures and methods whereas many countries have adopted e-system for filing of cases and their quick disposal through alternate dispute resolution and/or fast-tracks follow up using the offices of magistrates at grass root levels.
Neither Legislature has so far reviewed/updated laws/regulations for effective/speedy justice system, nor has judiciary prepared/presented any concrete plans to discard the outdated procedures suggesting the federal/provincial governments to establish 'Fast Track Courts', as was done by many countries.
Chief Justice Saqib Nisar (retired) when in office lamentably noted that even after getting extraordinary salaries and facilities, the judges were not delivering. Speaking about inordinate delays in deciding cases, he remarked that its responsibility "lay on me and all the judges collectively". Even after admitting responsibility, it was a pity that no remedial measures were taken by him. The cases of higher judiciary (getting extraordinary emoluments and perquisites) and Federal Board of Revenue (with double salary package) confirm that mere extraordinary salaries and perks cannot improve the system. One needs skilled manpower, efficient network, automated procedures and strong system of checks and balances weeding out those who fail to deliver.
Devising speedy justice system is a daunting challenge in Pakistan due to large pendency, frivolous cases where filers go unpunished, frequent adjournments, administrative highhandedness forcing people to go to courts, outdated procedures, and of course paucity of competent judges. The existing inefficient and outdated judicial system is exploited by money power that hires "crafty" lawyers, many of whom are part of law houses of relatives of serving judges, to get justice delayed/destroyed/maneuvered. Slogans such as independence of judiciary and justice for all in Pakistani milieu have proven to be mere clichés-even in the wake of restoration of pre-November 3, 2007 judiciary through popular mass campaign. The much-publicised National Judicial Policy 2009 also proved to be just an attempt to cure the symptoms as no efforts have been made till today to make meaningful and effective structural changes removing the causes of illness-the reasons for unnecessary litigation as state functionaries do not follow law, rules and regulations or have failed to check in time violations committed by citizens/private parties.
In Overhauling justice system [Business Recorder, December 1, 2017], it was highlighted that: "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 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 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 present judicial system:
Quality of adjudicators/judges
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".
Matthew C. Stephenson of Harvard Law School in his paper, Judicial Reform in Developing Economies: Constraints and Opportunities, aptly observed that: "....correcting some but not all market imperfections may lead to social welfare reductions, not that it necessarily will do so. And, even when partial reform does have counterproductive effects, these problems may be short-lived if the initial incremental reform efforts are followed by more extensive reform of other institutions. The important lesson is that individual reforms cannot be considered in isolation, and that we can and should draw on the tools of economic analysis, applied in a particular context, to try to identify situations in which certain institutional reforms that appear to be movements toward an unachievable first-best world will actually move us away from an achievable second best".
Article, Judicial Reforms 'under pressure' by João Paulo Dias, Conceição Gomes, published in Utrecht Law Review, provides insight for judicial reforms in a situation like the one faced by Pakistan for years. It says: "The reform of the judicial map, if correctly planned and executed, should also have included adequate links between the judicial services and Alternative Dispute Resolution (ADR) mechanisms, such as legal advice and information, mediation and arbitration services. This would have involved not only studying and estimating the need for these services under the new geographical organisation to ensure even coverage, particularly in municipalities that would be deprived of a court or in cases where the courts were more distant, but also ensuring that information was made available on the options provided for citizens (including legal professionals). Moreover, although some services which offer mediation may be involved in court cases and therefore require special links with the courts, this was not adequately planned or resolved in the years which followed".
In our case, 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 neither been adopted nor successfully implemented, what to speak of structural reforms and updating of procedures. We all know the issues faced by our decadent, near-to-collapse judicial system, namely, complexity of procedures, outdated methods, lengthy hearings, highhandedness of public functionaries that is passing of illegal/unlawful orders, declining 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 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. All those having vested interest in the existing system will never reform it.
An efficient justice system can only be established if efforts are made to produce highly competent adjudicators at 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. It will help produce competent judges for higher courts in future. Appointments of members in all the special tribunals must be through the same procedure. The Chief Justice of Pakistan or any other Judge authorised by him or a committee appointed by him should look into appointments already made on 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 law, there would be drastic decrease in litigation. It is painful that presently the governments are the main litigants. They usurp the rights of people and then drag the poor citizens in courts. We all know the reasons for this morbid state of affairs but nobody wants to fix it. Judicial reforms do not stipulate asking for more judges and funds but eliminating unnecessary litigation and quick disposal and to help reduce its occurrence in the first instance.
It is pertinent to mention that the Eleventh Finance Commission of India recommended a five-year scheme for creation of 1734 Fast Track Courts (FTCs) for disposal of long pending cases and provided ?502.90 crores as "special problem and upgradation grant" for judicial administration. The term of FTCs, established to expeditiously dispose of long pending, especially those of under trial prisoners, was to end on March 31, 2005. However, the Indian Supreme Court, which was monitoring the functioning of FTCs observed through Brij Mohan Lal Vs UOI & Ors that these should not be disbanded all of a sudden. The Indian Government accorded its approval for the continuation of 1562 FTCs for a further period of 5 years. According to a report of BBC, the FTCs in India working since 2001 decided till 2012 "more than three million cases". Our successive governments, military and civilian alike, have not considered any such initiative and judiciary has also not contemplated about it.
Parliament and successive governments have never tried to give priority to providing the country an efficient justice system. It is high time that we should move from clichés to pragmatism for judicial and other reforms. Competent men in each field of law can be hired as Additional Judges in terms of Article 197 of Constitution for 3-5 years to clear the entire backlog, while the permanent judges should be assigned the task of just taking up new cases and finalise the same within one year of their filing. This simple solution can go a long way in improving dispensation of justice and eliminating the mammoth backlog. Unless it is done, the justice system will remain choked and clogged.
(The writers is lawyers and partners in HUZAIMA, IKRAM & IJAZ, are Adjunct Faculty at Lahore University of Management Sciences (LUMS)).
Table A: Consolidated statement showing pendency, institution and disposal of cases during the period 1-15th June, 2020 in the Supreme Court of Pakistan, Federal Shariat Court, High Courts and District Judiciary
========================================================================================== Superior Courts Pendency Institution during Disposal during Balance the period the period ========================================================================================== Supreme Court of Pakistan 44,939 446 260 45,125 Federal Shariat Court 200 0 0 200 (Upto 31st May, 2020) ========================================================================================== ====================================================================================================================================================== Name of Courts Old Cases New Cases Old + New Filed upto 31-12-2011 Field from 1-1-2012 (Grand Total) ====================================================================================================================================================== High Courts Pend Disp Bal Pend Inst Disp Bal Pend Inst Disp Bal ====================================================================================================================================================== Lahore High Court 8,196 154 8,042 181,483 5,139 6,253 180,369 189,679 5,139 6,407 188,411 High Court of Sindh 12,823 4 12,819 70,849 943 261 71,522 83,672 943 265 84,341 Peshawar High Court 2,638 4 2,634 35,680 885 735 35,830 38,318 885 739 38,464 High Court of Balochistan 69 0 69 5,249 104 109 5,244 5,318 104 109 5,313 Islamabad High Court 620 4 616 15,165 221 155 15,231 15,785 221 159 15,847 ====================================================================================================================================================== Total (High Courts) 24,346 166 24,180 308,426 7,292 7,513 308,196 332,772 7,292 7,679 332,376 ====================================================================================================================================================== ====================================================================================================================================================== District Judiciary Pend Disp Bal Pend Inst Disp Bal Pend Inst Disp Bal ====================================================================================================================================================== District Judiciary, Punjab 9,508 1 9,507 1,255,926 120,760 99,072 1,277,614 1,265,434 120,760 99,073 1,287,121 District Judiciary, Sindh 621 13 627 101,732 10,120 7,027 104,831 102,353 10,120 7,040 105,458 District Judiciary, KPK 409 3 405 202,558 24,657 15,815 209,620 202,967 24,657 15,818 210,025 District Judiciary, Balochistan 47 0 47 16,415 1,166 628 16,953 16,462 1,166 628 17,000 District Judiciary, Islamabad 1,204 0 1,204 42,018 929 227 42,720 43,222 929 227 43,924 ====================================================================================================================================================== Total (District Judiciary) 11,789 17 11,790 1,618,649 157,632 122,769 1,651,738 1,630,438 157,632 122,786 1,663,528 ====================================================================================================================================================== Grand Total (Supreme Court, Federal Shariat Court, High Courts and District Judiciary) 2,008,349 165,370 130,725 2,041,229 ====================================================================================================================================================== The difference is reported due to transfer, re-opening/restoration, remand and in case where leave to appeal is granted. Table B: Consolidated statement showing pendency, institution and disposal of cases during the period of 1st-30th September, 2018 in the Supreme Court of Pakistan, Federal Shariat Court, High Courts and District Judiciary ========================================================================================== Superior Courts Pendency Institution during Disposal during Balance the period the period ========================================================================================== Supreme Court of Pakistan 40,871 988 1,637 40,243 Federal Shariat Court 500 6 84 422 ========================================================================================== ======================================================================================================================================================================== Name of Courts Old Cases Filed upto New Cases Filed Old + New 31-12-2011 from 1-1-2012 (Grand Total) ======================================================================================================================================================================== High Courts Pending Disposed Balance Pending Instituted Disposed Balance Pending Instituted Disposed Balance ======================================================================================================================================================================== Lahore High Court 10,300 243 10,057 151,172 14,705 10,419 155,458 161,472 14,705 10,662 165,515 High Court of Sindh 16,254 268 15,993 76,896 3,023 3,745 76,176 93,150 3,023 4,013 92,169 Peshawar High Court 3,426 27 3,399 26,279 1,192 1,246 26,225 29,705 1,192 1,273 29,624 High Court of Balochistan 306 11 295 6,549 342 344 6,547 6,855 342 355 6,842 Islamabad High Court 1,403 24 1,377 15,412 818 577 15,708 16,815 818 601 17,085 ======================================================================================================================================================================== Total (High Courts) 31,689 573 31,121 276,308 20,080 16,331 280,114 307,997 20,080 16,904 311,235 ======================================================================================================================================================================== ======================================================================================================================================================================== District Judiciary Pend Disp Bal Pend Inst Disp Bal Pend Inst Disp Bal ======================================================================================================================================================================== District Judiciary, Punjab 10,938 174 10,783 1,062,104 235,960 214,440 1,084,759 1,073,042 235,960 214,614 1,095,542 District Judiciary, Sindh 1,151 143 1,107 100,237 23,435 23,717 99,952 101,388 23,435 23,860 101,059 District Judiciary, KPK 408 50 386 202,595 45,309 38,556 209,598 203,003 45,309 38,606 209,984 District Judiciary, Balochistan 96 5 92 14,203 4,134 4,460 13,877 14,299 4,134 4,465 13,969 District Judiciary, Islamabad 906 7 914 37,070 10,713 10,406 37,377 37,976 10,713 10,413 38,291 ======================================================================================================================================================================== Total (District Judiciary) 13,499 379 3,282 1,416,209 319,551 291,579 1,445,563 1,429,708 319,551 291,958 1,458,845 ======================================================================================================================================================================== Grand Total (Supreme Court, Federal Shariat Court, High Courts and District Judiciary) 1,779,076 340,625 310,583 1,810,745 ========================================================================================================================================================================
Copyright Business Recorder, 2020