The urgent need for Judicial Reforms in Pakistan

Democracy is based on liberal constitutionalism. It needs a well-established constitutional and legal system that recognises civil and political rights, equality of all citizens irrespective of their religion, caste, ethnicity or language and region. Out of all the three main organs of the State set out by the 1973-Constitution, an efficient judiciary is crucial to democracy, governance, security, economic growth, and equity.An independent judiciary ensures that the Rule of Law is available to all citizens. The civil and political rights have to be protected not only from the excesses of state institutions and functionaries but also secured against powerful interest groups that resort to violence or a threat thereof against any particular community or region.

The Judiciary’s power is such that no other institution has such a pervasive influence on so many aspects of the daily life of a citizen and also on that of the government . The executive has perforce no choice but to comply with the directives of the courts regardless of how unpalatable they may be.

A well-functioning judiciary has influence far beyond the dispensation of justice. It can make the country more competitive. Unfortunately in Pakistan’s case, performance of our judiciary has been wanting. According to the 2017-18 World Justice Project Rule of Law Index, which measures whether ordinary people can resolve their grievances through the civil justice system, Pakistan’s score is the worst in the region, or 6th out of 6, and globally it’s 105th out of 113.

There are many reasons for this poor performance but the most important one is the long pendency of cases. There are forty thousand cases pending with the Supreme Court, about three hundred thousand with the five high courts and about two million with the subordinate judiciary of the four provinces and the federal capital, according to the Law and Justice Commission of Pakistan.During the last five years, the number of cases pending in the Supreme Court has gone more than double to reach the highest level for the last 15 years. In 2006, the number of pending cases before it was 13,724. Today it is three times that.

The Supreme Court has made it clear that as per the constitution, access to justice is a fundamental right of the citizens of Pakistan. Despite it being clear in the constitution, access to justice is a cumbersome process due to the lacunae in the system. Majority of the problems with Pakistan’s judicial system are related to the district level courts due to which they’ve been unable to ensure the  dispensation of justice which has resulted in the abuse of laws and violation of human rights in the country. One such example is the ruling of a Fulbright scholar Junaid Hafeez’s case where the district court sentenced him to death over a case which has a lot of loopholes. In an ideal society, the due process of law would’ve been followed where he would’ve been given the right to defend himself.

Unfortunately over here, the process was against the process defined by the constitution. It’s generally believed that lower courts act in such a way in order to avoid backlash from the radical fractions of the society and to please them while hoping at the same time that their decision will be overturned at the Higher level such as in the high court or in the Supreme Court just like Asiya Bibi’s verdict of the district court was overturned.The district judiciary is a crucial organ of the judicial system. Forming the lower tier of judicial hierarchy, it is the point of citizens' initial interaction with the system of administration of justice. Bulk of litigation is conducted at this level. In actual fact, a very small number of litigants directly knock at the door of the superior courts. As per judicial data of all courts, only 10% cases are in the superior courts i.e. Supreme Court and High Courts, whereas 90% litigation is pending in the subordinate courts. This data shows the importance and significance of district judiciary in terms of its interaction with the general public and the volume of cases being dealt with by such courts. In order to ensure the dispensation of fair justice, the district level judiciary must be reformed so that the interaction between the general public and judiciary improves.

The Judiciary in Pakistan has a strong influence and correlation with the economic system of the country as well. There is a strong relationship between the rule of law and investment and business development.An investor will part with his financial savings and share his expertise and experience only when he is assured that a firm is profitable. For profitability, arbitrary and discretionary actions on the part of state actors need to be kept at bay. To achieve this, non-discriminatory and impartial application of law, enforcement of contracts, protection of property rights, and speedy disposal of legal cases are necessary and need to be seen to be happening. This can only be achieved through a well functioning judicial system which can not only address the issues of investors by ensuring a fair and speedy trial but also by acting as a  countervailing force to major issues like the uncertainties created by factors such as political instability, security, law and order, energy etc.

The shortcomings in our Judicial System have been extremely damaging to the country in terms of the economical aspect as well.Compared to other countries, the court procedures in Pakistan are complicated, lengthy and expensive. A World Bank ‘Enterprise Survey’ reported that 38 per cent of Pakistani firms find the court system a major constraint in doing business in comparison to 14 per cent in South Asia as a whole. Under ‘Investment Climate Assessment’ a third of Pakistani firms perceive the low quality of courts as an obstacle in comparison to a fifth in Bangladesh. Another World Bank report published in 2018 said that, on average, it takes 1,071 days to settle a commercial dispute in court.Then the case can go to the appeal stage first in a High Court and then in the Supreme Court. It is not unusual for a case to take more than a dozen years to be decided. This is one of the main reasons why  Pakistan ranks 156th on World Bank's Enforcing Contracts Index. These reports and assessments about Pakistan’s judicial system and especially the protracted litigation, inordinate delays in the disposal of cases, extended and unending periods in which stay orders and interim injunctions remain valid receive a lot of attention from the law firms advising foreign companies making investment decisions overseas. In order to address these issues some basic reforms are required such as removing the lacunae in the procedures responsible for ensuring broad- based access to justice, amend the outdated and redundant laws and procedures, maximise the employment of modern technology to improve case management in terms of the speed and efficiency of case proceeding, mechanisms such as Alternative Dispute Resolution should be established in order to encourage legal settlements between the parties because dispute resolutions save a lot of time and energy along with the costs as well.These measures would have had a more enduring and fundamental impact on the economic governance of the country and help to remove some of the obstacles in the way of investment and equitable economic growth. The reverse has been Pakistan’s case and the economy has had to bear huge costs because of the proactive and unnecessary decisions of the Supreme Court in matters of economic policy, few famous examples are the the huge penalties imposed on Pakistan because a commercial contract with a foreign company, Tehthyan Copper Company (TCC) was cancelled under orders of the Supreme Court.

Earlier, Pakistan was also fined 900 million dollars in another case involving the Turkish company Karkey’s rental power project(which was recently solved after involving the Turkish Government in between). The alarming point is that both of these issues surfaced after the Supreme Court outstretched it’s domain via Suo Motos which is why there’s a strong opposition against this particular discretionary power. The against side of the debate on the matter of Suo Motos has a strong merit as it is generally said that Suo Motos undermine the authority and role of other institutions which too are an arm of the state so an outstretch by the judiciary can seriously damage the capacity of the state. One such example of an outstretch from the judiciary’s mandate is the recent Suo Moto action taken by the Honourable Chief Justice over the matter of the arrangements done to tackle corona virus. According to many, this is completely unnecessary at such a crucial time and such actions are the reason is why the view of curtailing the judiciary’s power via reforms has a lot of merit.

Pakistan’s country risk profile which was already quite high has worsened with the addition of a litigation risk. Even if investors and businesses are able to surmount all the different hurdles imposed by the federal, provincial, and local governments they are then faced with an additional imponderable that adds to uncertainty and unpredictability of investing and doing business in Pakistan. After all the approvals have been obtained there is the fear that the Supreme Court might take a Suo Moto cognisance of the transaction, issue a stay order and decree lengthy time-consuming proceedings to decide the case. Alternatively, some other party aggrieved with the outcome of an executive decision may file a petition that is readily admitted by the courts. A large number of frivolous petitions are filed every year that have dire economic consequences. The penalty for filing these is insignificant but their cost to the economy is enormous.

Economic decision-making is highly complex and its repercussions are interlinked both in time and space.Thus the courts should avoid or abstain themselves in matters which aren’t their cup of tea.

Pakistan today faces a situation that was being faced by the U.K. before Woolf Reforms took place in the late-90s.Lord Woolf proposed this reform when he published the report in the year of 1997.

Lord Woolf's reforms were intended to help reduce the cost and time courts spent on civil proceedings. He identified in his original report that the three critical issues facing the civil justice system at the time were costs, delays, and complexity. To combat the problems that he saw as being prevalent with the system, Lord Woolf proposed changes to the ways of the standard procedure landscape such as :

There should be an increase in the usage of ADR( alternate methods of dispute resolution),the costs of litigation should be more affordable for the general public which would make it so that those of lower financial ability would be able to pursue a lawsuit on an equal or similar level to those with higher means.,Litigation as a process would become less complex and the methods of litigation would become less time consuming, and would, therefore, lead to swifter justice.

The entire idea behind the proposed reforms was to make the system more approachable and user-friendly. It was recommended to have the added caveat of also cutting tax spending on the court system, which would benefit both the government and the people of England and Wales. Even if Pakistan implements some of these steps, they can really help the Judicial System to improve its performance but for that Pakistan first needs a Lord Woolf who would actually take this initiative.

Pakistan’s Courts are without a doubt, a central institution for our economic development, regional integration and foreign direct investment due to the power granted to them by the 1973-Constitution.However it’s role in our economic development can be made productive after carrying out some serious Judicial Reforms. Reforms can only be initiated by the Government which up till now has been least concerned about carrying them out. The former Chief Justice, Asif Saeed Khosa, had a reputation of being one of the most efficient judges in decision-making.  When he assumed office, it was believed that the country’s judiciary is entering a new phase in terms of reforms because the Chief Justice had clearly expressed his intentions of bringing institutional changes in the judiciary. He did take steps such as establishing model courts in order to ensure speedy justice. He also offered full support and cooperation to the  PTI government in terms of carrying out reforms but unfortunately the government did not reciprocate the same level of support which is why a huge opportunity of carrying out reforms has been missed.

Long term reforms are mainly done via the parliament but the process required for this is cumbersome and is one of the major hurdles in getting legislation done through the parliament because it requires a 2/3rd majority and for that purpose the government might have to collaborate with the opposition. Ideally speaking the practice of collaborating with all the stakeholders specially the opposition political parties is an extremely healthy practice for the system as it helps in achieving a national consensus on core issues. Unfortunately in Pakistan, the political atmosphere is highly polarised which gives very little room to the political parties to collaborate with each other because its not perceived as something good by the masses and there’s a high chance of loosing political capital if the political stakeholders collaborate together over genuine issues such as Institutional Reforms. This threat of loosing political capital stops the stakeholders from working with each other and this has had heavy consequences such as the lack of progress on resolving genuine issues such as Reforms in all the sectors. These consequences have led to detrimental effects on the entire country in terms of every aspect. Mere cliches and rhetoric about reforms, which we have been hearing for a long time, won’t serve any purpose but the stakeholders will have to take action on this.

All is not lost, the government can still make up for the wasted golden opportunity by initiating the process of reforms immediately.Now is the time for reforms but for that, political temperatures need to be cooled down. Few months back a very good article “Lessons from LatAm for Pakistan

( https://www.brecorder.com/2019/12/17/553921/lessons-from-latam-for-pakistan/ ) was written by Mr Rooshan Aziz where he stressed on the need for institutional and economic reforms if Pakistan is to achieve sustainable growth.Even he mentioned the need for cooling down political temperatures if the PTI government has to implement its reform agenda in terms of the economic and structural reforms.Its the same with judicial reforms.The current government will have to take lead in cooling down the political climate and will have to  focus their efforts on pushing  judicial reforms  through collaboration instead of consolidating political power because they’re a minority government therefore to implement their reform agenda which mainly focuses on dispensing justice to everyone, they’ll need to leave all political differences behind and work with everyone regardless of their political or institutional background. This can only be done by creating create some semblance of political consensus and stakeholder reconciliation. We are currently going through a national crises in which cooperation is required from all the stakeholders and the political parties seem to be on a single page agenda of defeating this virus. It is imperative that the current political consensus should be strengthened so that important things like Judicial Reforms can be done.

The author is a student of law who is currently doing his LLB(Hons) from the University of London.The views expressed are his own and do not represent that of his institute. He tweets @MoizUrRehman_