The phrase “Judicial Reforms” is the oft-repeated and perhaps a common jargon in Pakistan and interestingly with somewhat different connotations and perceptions for different persons, interest-groups, stakeholders and the institutions. It is somewhat different from the viewpoint of a politician, a judge, a lawyer, a religious-theologist, the government and undoubtedly the most important stakeholder — an ordinary citizen.
At the time of independence, Pakistan inherited the British legal and judicial system that was based on colonial philosophy and the same is continuing even today with some patchwork changes under the garb of reforms. What has really not changed is the basic skeleton of the system. In order to understand the paradigm of judicial reforms in Pakistan, one must know the cardinal pillars of the structure of the judicial and the legal edifice of the country.
According to the classical constitutional scheme, the legal-judicial greige of Pakistan is woven around the law-makers [ the Parliament], the law-enforcers [ the Executive], and the law-dispensers [ the Judiciary]. However, in the chequered political and governance history of the country, marked by the military rule [ martial law] stretched over a little less than half of the country’s life, the approach that was adopted towards judicial reforms was the one that suited perpetuation of power and can be best described as based on ad-hocism. The fourth pillar in Pakistan’s government and democratic politics after the last military rule being only a shadow-one after the three true pillars of the state, which are an unwritten set of rules, being popular and called ‘the establishment’. Therefore, nothing much was done to introduce the reforms that would increase the efficiency and delivery by the system. As a result the edifice is now in shambles and at the verge of collapse because of exorbitantly high cost of dispensation, massive backlogs in the courts and the deepest dissatisfaction and mistrust on the courts amongst public and the litigants. In a nutshell, the maladies with which the country’s legal-judicial fabric is loathed with can be tabulated, as under:
- High cost of litigation
- Poor quality of justice and judicial dispensations
- Unnecessary delays in deciding the cases (justice delayed is justice denied)
- Uncertainty and retardations
- Extraneous influences (particularly on the subordinate judiciary) from the peers and the powerful i.e., judicial independence
- Systemic exploitations, extortions and misuse of power and authority
Before embarking on a discussion into the itches, pointed-out above, it will be apt to know the judicial hierarchy of the country. The judicial helix is a vertical one. With the bottom down approach, Supreme Court of Pakistan (SCP) is the highest level and the apex court. It has vast powers and jurisdiction all over the country. The federating provinces and the Islamabad Capital Territory (ICT) have each an independent High Court, which is the apex court therein and have the vast powers within their jurisdictional sphere akin to the SCP. Each district has District Courts, headed by the District and Session Judge (DSJ). Working under the DSJ are the Additional Session Judges (ASJ) and the Civil Judges cum Judicial Magistrates. Notably, since after separation of the judiciary from the executive in 1996, the distinction between civil judges (who used to deal with civil cases) and the magistrates (who used to handle the criminal cases) has eroded. Now, the civil judges perform both jobs.
Litigation Costs
The cost of litigation in Pakistan is perhaps the highest in the region. There are scores of reasons for. But, the prime factors are lack of a robust system of accountability, checks and balances and the deep-rooted corruption. The legal services by the Government are poor and untrustworthy. Resultantly, the litigants are left, per force, to rely on their own resources to be able to lay their case before the courts. The famous adage “money makes the mare go” is a perfect fit in the country’s legal-judicial system. The poor litigant has to and must spend money at each step to inch his case. So much so that a litigant has to graft money to get the date of hearing for his case by the court. There is no code for the counsels’ fees and charges. The counsels are at liberty and free to demand from the client whatever they may wish, without the regard of a client’s financial strains. Systems and procedures are so complicated that even the cost of obtaining copy of the order sheet of the day’s proceedings runs into hundreds in rupees.
Poor Quality of Dispensations
There is general and widespread dissatisfaction, not in the litigants but in the practicing legal professionals, about the quality of justice received from the courts. Apart from and in addition to other causes, the scorn is the falling educational standards. The quality of the legal education and the profession has rapidly deteriorated over the years. Then, most of the judiciary is recruited from either the bar or by the High Courts. The Public Service Commission has been outcasted from recruiting the judicial officers. All this has caused a serious blow on the quality and calibre of the judiciary, as a whole because fairly about 40% of High Court Judges come from lower judiciary and 100% SCP judges are from the High Courts. The situation has been worsened further by neglect and inadequate investment in the legal and judicial system by successive governments. As a result courts are understaffed and lack confident and well-educated presiding officers, trained administrators, and modern management systems and technology. The physical infrastructure of the courts is also grossly inadequate and of a poor quality.
Delays and Pendency
The most worrying things are the inexplicable and unnecessary delays in deciding and finalizing the cases. Whereas, it is bad in criminal case, it is the worst in the matters of civil litigation. Civil cases remain in limbo for years and years together and mostly for decades. Firstly, it requires Adam’s life to get a case decided in a civil court. Thereafter, ensues an un-ending array of appeals to the DSJ to HC and finally to SCP. It is not infrequent that the SCP remands the case back to the original civil court for hearing the case afresh and the time count starts afresh from zero, once again. Sometimes, generations pass away waiting for the decisions by the courts. Instead of improving, the situation has worsened with time owing primarily to lack of investment in the judicial system. A number of highest honorable judges of both the SCP and HC have themselves strongly voiced these problematic concerns, such as honorable Justice Faez Isa. No doubt, there is a shortage of judges, but at the same time there is a lack of will to dispose of the pending litigation quickly and expeditiously. According to an April 2022 report of the Law and Justice Commission of Pakistan, over 2 million cases are pending before the courts all over the country as of 1st June 2022. About 82% are pending in the district courts.
Uncertainty and Unpredictability
Inefficiencies in the legal and judicial system lead to uncertainties, too. The decisions of the courts and sometime even by the very same court on similar cases are divergently different on different reasonings. The result is that it becomes extremely difficult to predict a definite outcome from a certain type of litigation, as the courts do not think to be obliged and biding to their earlier decisions on similar matters. The judicial precedent is seldom honored. Laws are not published on a timely basis and no consolidated information system has been developed for regularly updating laws and making them readily available to the public. As a result, it may take months for policy decisions pronounced by the Government to be transformed into an enforceable legal document.
Assumptions
Unfortunately but factually, as according to the World Justice Project’s Rule of Law Index Ranking 2022, Pakistan is ranked at 129th out of 139 countries in terms of rule of law and efficiency of legal-judicial system. Compared to it’s neighboring country India, ranked at 77th. The lengthy, cumbersome and intertwined processes and procedures do not add to efficiency but have created delays and increased the cost of litigation. Unless urgent steps are not taken to reform the things and to make the legal-judicial system more efficient, effective, and responsive to the needs of the citizenry, desired outcomes will remain improbable. There is no second opinion that a dysfunctional legal system also threatens to undermine the rule of law and economic, political, and geostrategic regional instability. Making Pakistan a target to lawfare on the world stage.
The Way Forward
At the very outset, one must be clear that the underlying objective will determine and spearhead the focus of the reforms. If the objective is to lessen the miseries of the common citizen, ethnic/religious minority citizen, businesses and investitures, then the policies and reforms programs should be directed in elimination of the aforementioned maladies. But, if the focus is to further aggrandize the judiciary, the executive and the legislature, then the focus will be a different one.
The starting-point should be the consensus of all organs of the state on the terms of reference of the judicial reforms. Thereafter, a broad-based dialogue (rather multilogue) should lead to a consensual ‘National Judicial Reforms Policy’. This policy should set forth the goals and the timelines for achieving the stated objectives. An infallible mechanism of implementation, monitoring and performance review must be instituted to achieve the objectives and the goals.
From an experienced legal professional view, the core objective should aim to improve efficiency and performance of the legal and judicial system to make it responsive and relevant to needs and aspirations of the people. It might require undertaking of an in-depth diagnostic study to dig out the root causes and crystallize a detailed agenda for legal and judicial reforms including an implementation schedule for such reforms and highlighting the cost estimates for the purpose. Nonetheless, the focus should be to address the core issues, done in the absolute light of public transparency, some of which have been touched briefly, above.
Further Links:
https://en.wikipedia.org/wiki/World_Justice_Project
https://worldjusticeproject.org/rule-of-law-index/country/2022/Pakistan/
https://worldjusticeproject.org/rule-of-law-index/country/2022/India/
Originally published at https://www.linkedin.com.
