Need for all-out reforms - I

Every now and then, we keep on hearing from higher judicial echelons that the federal and provincial governments must run the affairs in accordance with the Constitution of Islamic Republic of Pakistan [the Constitution] and applicable laws/rules/regulations must be followed in letter and spirit. While this is an undisputable and uncontroversial command, there is also the need for ensuring all-out reforms in the justice delivery system that includes among other things an end to the long-drawn costly and time-consuming litigation. As charity begins at home, the judiciary should take the lead and present itself as a role model for all other institutes/departments.
The people of Pakistan for the last many years, especially after 2009 restitution of judges who were unconstitutionally removed by a military dictator, have been hoping that the judicial system will improve, but in reality, it witnessed further deterioration with the passage of time. This fact is highlighted every time a new Chief Justice of Pakistan (CJP) takes oath, and on numerous other occasions by the higher judiciary and other stakeholders. Hundreds of thousands of cases are pending in various courts and tribunals. The justice system is admittedly choked, but neither the legislators nor the executive branch of the government is taking remedial measures suggested by Judiciary to make the system effective. We need fundamental structural reforms in the justice delivery system, which is a sine qua non of any democratic dispensation, as well as requirement of the Constitution.
The right of access to justice is an inviolable fundamental right enshrined in the Constitution. This right must be understood in wider terms to include speedy dispensation, 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/tribunal. Justice therefore can only be done if there is an efficient system to settle the rights and obligations of litigants within reasonable time. Judiciary should not only be independent but also competent and efficient.
The existing judicial system is abused by money power. People allege that the rich, through hiring expensive lawyers "distort" or "delay" justice. Slogans such as independence of judiciary and justice for all in our milieu have proved to be mere clichés. The much-publicised National Judicial Policy 2009 has also failed to achieve its objectives. This and other measures are viewed as attempts to cure symptoms and not removing the causes of illness. Critics say that until today, no concrete and meaningful efforts have been made for undertaking effective structural reforms aimed at removing the underlying reasons for malfunctioning of the dysfunctional justice delivery system.
It is an irrefutable fact that the poor and weaker sections of society find it difficult to get justice. Many cannot afford to pay fees to lawyers and bear other expenses. Even if they do manage funds by borrowing or selling their assets, have to wait for umpteen years to get final settlement of the disputes. The prevalent judicial system, they complain, only protects the rich and mighty offenders. The academicians and social activists allege that the "defenders" of the system-both bar and benches-resist any radical changes, as it would hurt their financial interests, benefits, huge perks, etc. As stakeholders in the exploitative system, both judges and lawyers, according to them, will never go for complete restructuring aimed at benefitting common citizens i.e. elimination of causes of litigation. They argue that even after giving clear finding against highhandedness of state functionaries or wrong investigation in criminal cases, the heads of respective departments are not punished. In the end, they and those committing wrong should be taken to task, if the system is to work within the four corners of law.
It is a fact that during the last many decades nothing worthwhile has been done by Legislature, Executive and Judiciary to bring fundamental changes in the existing outdated, exploitative, anti-people and elitist structures designed by colonial rulers for their needs and interests. These structures and outdated laws/rules/procedures are the real maladies faced by us. There is no will to dismantle these and adopt world's best practices. The reform agenda for Judiciary, Executive or Legislature based on patchwork here and there can never deliver, unless fundamental structural changes are made. There is an urgent need for replacing the prevalent, decayed and disintegrating systems with modern and efficient models working successfully in other countries. Since independence, we have failed to reconstruct/modernize/democratise our obsolete state institutes.
Mere clichés and rhetoric about reforms, we have been hearing for a long time, have not served any purpose. Mentioning about dearth of competent judges, delays in dispensation of justice, huge pendency, etc., are not enough. These are nothing but symptoms of an ever-ailing system. The crucial question is: Do we have the will and a plan for removing the causes giving rise to these symptoms? Mere mentioning and addressing of the symptoms without removing their causes has proved to be an exercise in futility. Judiciary has never made public for open debate any concrete proposals, executable reform plans with clear time-lines to fix the system. The successive governments and parliaments have also never debated any agenda to provide an efficient justice system. It is high time that we should move from clichés to practical steps for reforming Judiciary, which is a vital organ of the State.
The available data confirms that every year more cases are filed than disposed-choking the justice delivery system. Despite this critical situation, there is no emergent plan to deal with it. No concrete efforts whatsoever have been made to remove the causes of unnecessary litigation and reducing/eliminating backlog. Our courts are still following the outdated procedures and methods whereas many developing countries have adopted e-system for filing of cases and their quick disposal through fast-track follow ups using information technology tools and taking e-courts and/or mobile courts at grass root levels.
Even simple solutions like awarding costs to frivolous litigants, adjournment only in exceptional circumstances and active case management through computerised systems have not been adopted at lower levels, what to speak of structural reforms and updating of outdated laws, rules and procedures.
We all know the issues faced by our judicial system, namely, complexity of procedures, outdated methods, lengthy hearings, highhandedness of public functionaries that keep on making illegal/unlawful orders but never get punished for their wrongdoings and lowering standards of pleading and adjudication. An efficient justice system can only be established if efforts are made to produce highly competent adjudicators at lower level, who are recruited transparently after public hearing by a board of professionals and not by the serving judges, and trained intensively at a centre of excellence or a reputed university. It would help produce competent judges for higher courts in future.
Appointments of members in all the special tribunals must be through the same procedure as in the case of judges of High Courts and not by the Executive. The Chief Justice of Pakistan or any other Judge authorised by him or a committee appointed by him should look into appointments already made in these tribunals and incompetent members should be removed, declared unfit to sit on the special tribunals.
(To be continued)
(The writers, lawyers and partners in Huzaima, Ikram & Ijaz, are Adjunct Faculty at Lahore University of Management Sciences)