Resistance to commercial courts

By a unanimously adopted resolution at its general meeting recently, the Lahore High Court Bar Association is reported to have rejected the proposed establishment of the federal commercial court, viewing it as parallel judiciary and threatening that the lawyers would abstain from appearing before it in the event of its creation. The lawyers interpreted the initiative as a conspiracy to weaken the superior judiciary and to erode its powers, fearing that some of the sitting judges would be transferred to the proposed commercial court.
Moreover, the resolution apprehends that, it would come under control of the executive as a federal court. As such, the bar has contended that its establishment and the appointment of its chief and other judges would be unconstitutional.
Reference, in this regard, has been made to the prospect of the appointment of its judges being made by the President, as against the constitutional provision for all judicial appointments being made in consultation with the Chief Justice of Pakistan and the heads of the High Courts.
Viewed in the historical perspective, at least some of the apprehensions expressed in the LHCBA resolution will appear to be quite understandable, thereby justifying such a strong reaction.
It may, however, be noted that the proposed setting up of the federal commercial court, reference to which was made by Prime Minister Shaukat Aziz in his first broadcast address to the nation, forms part of the government's initiatives aimed at redressing the sufferings of the people as also addressing police excesses and lacunae in dispensation of justice.
There is also a realisation that excessive delays and the cumbersome adjudication procedure for resolution of commercial disputes have become a major impediment in attracting foreign direct investment. In order to overcome delay in adjudication by courts, Shaukat had said that government had decided to take a number of steps including better emoluments for the judges and setting up of federal commercial courts and a mechanism for reconciliation outside court.
He had also indicated a number of measures being underway, including revision of Police Ordinance of 2002, provision for prosecution of persons filing or registering false FIRs, and curtailment of police powers to arrest on mere suspicion. It was in this context that he had referred to measures aimed at providing alternative disputes resolution avenues, including setting up of courts to adjudicate in commercial matters, with the underlying idea of reducing the current burden on judiciary, with an increase in the number of Judges.
It will also be noted that, seemingly unhappy on too frequent cases of inordinate delays in dispensation of justice, he had made a pointed reference to an amendment being made in the law on grant of stay by the judiciary, and laying down that no injunctions could be granted unless both parties had been heard.
All this will point to the idea of commercial courts emanating from common concern over inordinate delays in the settlement of cases, often extending to long years. Needless to point out, commercial disputes remaining unsettled over a too long period of time, often cause unnecessary losses to aggrieved parties, mostly in terms of finances.
Since commercial dispute usually revolve around money matters, delays in their settlement often prove counter productive. Now with new dimensions added to the gamut of commercial activities, quick settlement of trade and property-related disputes has gained an importance of its own, hence calling for a mechanism for their prompt settlement.
Thus courts dedicated to and specialising in resolution of commercial disputes, are urgently needed, whether they be separate courts altogether or separate benches within the High Courts of the country. In either case they should function under the Superior Judiciary as does the District Courts system.
This would suffice to allay the fears of the Bar regarding the subservience of the judiciary to the executive. Which would of course negate the principle of separation of powers enshrined in the constitution.