Chattering classes absolve themselves of their responsibility for the national mess they have created by blaming the judiciary. Only if the judges were honest, they say, things would have been all right. I have two serious objections to this mindless observation. One, have the judges taken a 'theka' - a contract with the people for being different? And two, are they to blame? It is the people who appoint them, who are responsible. The source of evil is the government, which has a penchant for locating the worst. There are a large number of people who would be outstanding judges only if the government have wanted.
A prominent international human rights organisation known as Crisis Group has recently urged the United States to use its influence on Pakistan to press for the judicial independence. In a report, titled "Building Judicial Independence in Pakistan," the Brussels-based International Crisis Group urged the Bush administration "treat the independence of the judiciary as a measure of democratic development in Pakistan." As if, Bush is pushed about democracy, and then about independence of judiciary, that too in Pakistan? He is not pushed about it even in his own country. The report was also sent to the European Union and other members of the international community. It urged Washington to take particular interest in ending "the manipulation of appointments, promotions, and removals in the superior judiciary." The Crisis Group, which has over 100 field researchers in five continents, has some distinguished people like Emeritus of the Council on Foreign Relations Leslie Gelb, the former European Commissioner for External Relations Chris Patten; and its President and former Australian Foreign Minister Garth Evans.
The US itself is subject to international ridicule for its human rights record particularly after 9/11, prisoners of Abu Gharaib or Guantanamo Bay are too well known to be recounted. Muslims are the targeted victims of this policy of apartheid. Other immigrants are not spared either. But closer at home, one would be tempted to highlight the pathetic decline in the fortunes of Federal Service Tribunal - an important part of judicial edifice. It has over 20, 000 cases pending for years, which will continue to pend and increase overtime the way things are. Federal Service Tribunal spends Rs 100, 000 a week just on postage stamps to mail notices to various parties. They are cancelled as soon as they become due. This game goes on.
There are eleven members, including a chairman. Two of them form a bench. A bench is posted at Karachi and one at Lahore. That leaves seven for Islamabad. Four of them have retired during the last few months. Only one bench is functioning at Islamabad - that is three benches and one honourable member to spare. With about 200 cases fixed every day, all it does is to adjourn. The bench presides over the solemn ceremony of granting dates. It specialises in adjournments after patiently hearing both the parties at times for an hour or so.
Simply because arriving at a decision is too much of a mental hassle and effort and is totally outside the pale of their experience, this policy has taken roots.
A chance to visit the offices of the Federal Service Tribunal in Blue Area, Islamabad, would only enhance the sense of despondency to a level much higher than the national average. Poor civil servants, in search of justice, clutter the corridors without at the end of the day getting anything in return. Not that the FST is unjust but it has distinguished itself in dispensing justice through mass scale adjournments. Starting usually at 10.15 am by 10.45 they are easily tired and should be hearing the 25th case fixed for that day. Civil servants and the lawyers may have travelled from as far as Multan only to return with clients frustrated and disappointed and their pockets considerably lighter. In quite a few pending cases, the delays may have automatically resolved matters because the appellants may have either died or retired.
Why is it so? The main reason is the quality of judges appointed to the Tribunal. Without reflecting on the present honourable lot, all of whom enjoy reputation for high integrity, the main reason is their age, which tires them very quickly. Lack of administrative skill to run an organisation is another factor. The Tribunal loses track, even of ordinary numerals, and it is not unusual to see cases fixed in Court No. 2, but would be heard in Court No. 3. Quite confusing that? Another is fixing a large number of cases, most of which are deleted after the clients and lawyers have arrived. If you are not present in the crowded room of the Registrar or Deputy Registrar at the precise moment, you might not know the next date and as well forget about it, because in spite of the computer, they fail to figure out. Scent of file is soon lost after they leave the court. There is a library - a hall as a matter of fact - which stores the files. You cannot find the one you want.
Besides the old age of the honourable members, another handicap that they suffer from is the wrong experience of government service, where they have mastered the art of not deciding, hence adjournments. In one particular case, after several adjournments, spread over two years, both the lawyers teamed up and the appellant's lawyer pleaded for a decision, even if it went against his client, and the respondent's lawyer, with equal vehemence, supported this request, saying that even if he was granted six months' adjournment, he won't produce an additional paper, because he had none. By the way, some honourable members have discovered a convenient device of delay by finding a scrap of paper that is not there which can easily appear convincing for adjourning a case. The Tribunal had a hard time confronting such a situation which was unusual in their experience, and sheepishly decided to reserve the judgment. Judgments are reserved. 'Reservation' at times lasts six months, and in some cases in spite of Supreme Court orders to decide the cases within two months. One hears that they have reviewed this decision behind the back of the lawyers and fixed it again. By adjourning cases, a retired member of the FST carries with himself a false sense of accomplishment without realising the sense of agony, which he has succeeded in causing to the poor appellants.
One can go on and on narrating indescribable woes of the poor civil servants at the hands of Federal Service Tribunal already, hard hit by inconsiderate or incompetent managements of their own organisations. But what is important is the future course of action.
First thing is to appoint a young and energetic Chairman, with good administrative experience. He doesn't have to be a retired Judge, because they usually do not have the management experience. An upright, competent civil servant, having had some magisterial experience will do fine. One of four retiring members would have made a good Chairman. He had the mettle although he lacked the magisterial experience. As for the members, they must not at all be the retired government servants, who are not only retired, but also very tired, and specialise in indecision. it would be best it Federal Public Service Commission is given the responsibility of recruiting middle-aged law graduates on the basis of a written examination and interview. They should have the necessary qualifications required for an additional district judge.
A Judge has to have a large number of qualifications, which other mortals may not necessarily have required to possess. He or she should have legal knowledge, professional qualities and high personal standards of integrity. He should enjoy good reputation for fairness and independence besides being strictly impartial and objective. Maturity, soundness of mind, control of emotions, courtesy, patience to listen and capacity to sift chaff from grain are some other qualities required of him. He should be cool under pressure and must bear in mind that by delaying justice he is denying it. And what does the Govt. do? It appoints the civil servants with unassailable connections to the powerful and mighty. One wonders why can't Majors General or whatever they think is the equivalent, haven't found these eleven jobs in the Federal Service Tribunal worthy of their attention.
There's a misconception in the minds of the people that if you increase the number of judges things will improve. What one would like to emphasise with full vehemence is that it is the quality of judges and not the quantity, which matters.
The present Federal Minister for Law, for a change must be credited with a high sense of honesty in openly admitting to the press, almost with a sense of pride, that all future appointments to higher judiciary would be made on recommendation of the leadership of PML(Q). Business Recorder carried this news. It has not been contradicted. During the last 2-3 months, a number of members of FST have retired and the decision to appoint their replacement is pending. The decision makers include the Minister of Law, the Prime Minister and the Chief of Army Staff. Secretary (Law) may perhaps be in the loop, one is not sure. Retired government servants have reportedly made a beeline and are using all their previous connections to land themselves a job. The government decides whether to give them jobs, if so, for two years or three.