The Senate committee of the 'Whole House' on Wednesday shared consensus that effective measures are need to be taken to lessen the burden of cases on lower courts, giving way to alternate dispute resolution and invigorating the panchaiyat system.
The special committee of the whole house, which met here with Senate Chairman Raza Rabbani in the chair, was briefed by noted lawyer S. M. Zafar, former secretary law and justice and human rights and ex-magistrate Abdul Malik Ghauri and Secretary Law and Justice Commission of Pakistan (LJCP) Muhammad Sarwar on how to ensure speedy and inexpensive justice to people.
S. M. Zafar underlined the need to do away with 'intra-court appeal and revision' option to provide speedy justice to common man. He said that most of the countries revamped their judicial systems and made visible headway. If the judicial system in Pakistan was not reformed, he warned, it would be doomed along with the teething democracy, as both democracy and judiciary go hand-in-hand. Since 1881, he said, some 61 commissions were formed to address the issue of justice delayed is justice denied and similar exercise was carried out in Pakistan as well.
He advised the committee to look into chapter 14 of the commission, of which Hamoodur Rehman was also a member that presented its report in 1970. However, he did not agree with some of the senators that the judicial system had been destroyed, saying it was very much there but was out-dated and could be improved.
He traced two major reasons - inefficiency, which he called apathy and weakness and corruption that dubbed as cancer. Zafar strongly recommended that there should be no sitting judges in the Judicial Commission, as they were already dealing with sou motu cases and in the past also issued political statements. He also said that the Judicial Academy should not confine its role to presenting of shields and bouquets to judges rather it should provide guidance and expertise. In UK and elsewhere, he pointed out that judges benefited from their judicial academies, whereas in Pakistan, judges did not get time to study further and attend conferences abroad to rich their expertise.
"Judges think, they have learnt enough and their only job is to issue judgements and decide cases," he noted. He emphasised how crucial it was to delete the provision of revision, being the mother of delays, which impeded progress on the real case. He noted that the commission in 1970 had proposed provision of library to each civil judge, and today what was needed the facility of IT library to all judges.
During his discourse, he also laid emphasis on judges to be pro-active in deciding whether or not a case would move forward. The former senator strongly recommended putting in place an alternative dispute resolution (ADR) mechanism, particularly to deal with financial cases, which would automatically attract foreign investors to Pakistan, besides lessening burden on courts. He called for revision of the law of arbitration law of 1940.
He said even today, arbitration courts of panchaiyat system existed in India and from 1999 onwards, 9, 67,000 cases had been decided. Referring to China, he said that there was dictum that each Chinese must not go to courts, as alternative dispute resolution system was quite effective and delivering results there.
Following the bull by the horns, he said that inter-court appeal provision should be done away with, as it consumed so much time, as anyone, who wanted to file an appeal, should do so before the Supreme Court, as already its suo motu jurisdiction had been increased and notice of recovery of a lizard from food was taken by the court.
Zafar called for a judicial restraint and proposed a constitutional amendment by the parliament, saying that this would bring down suo motu notices number, say, from 100 to 10-15 cases. He also proposed doing away with special appeal, being a practice of medieval era. Senator Mushahid Hussain Sayed questioned how the issue of conflict of interests of by the judges could be addressed, saying that the biggest case of this nature was of Zulfiqar Ali Bhutto and Asghar Khan cases and memo scandal could also be quoted here. He also wanted to know opinion of the jurists about setting up constitutional court.
Replying to Mushahid, Zafar said that conflict of interests and bias indeed influenced minds and suggested on feeling a conflict of interest, a judge should voluntarily withdraw from a case hearing. He supported public debate on establishment of a constitutional court.
Taking part in the discussion on speedy and inexpensive justice, PPP Senator Farhatullah Babar said that the foremost concern of the House should be to provide some avenue of justice to the most vulnerable section of the society, namely the missing persons and those, who had disappeared without a trace, allegedly at the hands of agencies.
"The victims of enforced disappearances and their families are yearning for justice. Howsoever expensive this called for legislation to bring state agencies under the ambit of the law and be held accountable. Unfortunately there is no avenue for justice is available to them and the talk of inexpensive and speedy justice to them was meaningless," he noted.
Similarly, he said in cases where courts took up cases through suo motu notices, the apex court tended to become a trial court with no avenue for appeal and noted the excessive use of suo motu closed an important avenue of justice namely the right to appeal. He called for a mechanism whereby this critical avenue was not blocked. Zafar agreed that the use of sou motu powers had raised some questions and proposed a constitutional amendment to link the use of suo motu jurisdiction with what he called judicial restraint.
Babar also questioned the present mode of appointment of judges. He said that the present system revolved around appointment of judges by judges to the exclusion of the president, the prime minister and practically the parliamentary committee on appointment of judges.
"The dispersal of power to appoint judges is necessary so that judges with diverse views and jurisprudential acumen adorned the bench rather than packing the courts in a manner that made the institution a monolithic body and driven by a command structure," he said.
LJCP Secretary, Muhammad Sarwar said a qualitative shift was needed from piecemeal law reforms to address the systemic and structural issues, hindering provision of speedy and inexpensive justice, which the Senate may be the best place to lead.
Speaking on structural oversight frameworks and mechanisms by the parliament, he said that enforcement of law and focus on organisations is key to fair, inclusive and impartial justice. He added justice organisations should review their own laws and rules and submit their reports to relevant parliamentary bodies and other oversight bodies. He proposed that the ombudsman should conduct assessments to check the quality of administration and notify standards for good administration and transparency.
Moreover, he said that the ombudsman should conduct and publish citizens' satisfaction surveys for justice sector organisations. The ombudsman and information commissioners should notify focal and designated persons for each local justice sector office and unit for public grievance redress and information to implement monitorable a zero tolerance plan for maladministration, monitored by the relevant parliamentary bodies, ombudsman offices.
Former magistrate Abdul Malik Ghauri, who volunteered to give his input, said that the system of check and balance had given rights to citizens in the West, whereas in Pakistan people felt terrified to visit police or courts and charged that by 1:30pm, judges start going back their homes.
He said in the US, jury system was working brilliantly and a jury would not disperse until a case was decided in 24 hours or even more. He called for starting such jury as a pilot project in each province to gauge its effectiveness. He said that the jury system or assessors system was packed up from Pakistan in 1974, which needed to be revived.
He said due an efficient judicial and jury system, conviction rate in the West was 90 to 98 percent, whereas in Pakistan it was 2-3 percent and this was giving way to occurrence of more crimes each year. The legal expert noted that there were 47 regional courts workings across world but there was no proposal to set up such courts in the ambit of SAARC that would help settle and stem many issues and disputes.