In his first speech, Prime Minister Imran Khan emphasised institutional reforms in almost every sector, including the justice system. Without reforming the justice system immediately, however, reforms in other sectors may not succeed fully. I am speaking of two key areas for reforms: merit-based appointment of superior courts judges and state counsels as well as systematic performance reviews for these officials.
In the past, judicial reforms have often emerged and ended with a particular chief justice - they have not been properly institutionalised. For instance, Justice Syed Mansoor Ali Shah initiated reforms in the Lahore High Court but soon after the honourable judge was elevated to the Supreme Court, those reforms slowed down. The same pattern surrounds SC chief justices. Failure to institutionalise reforms weakens their implementation. At the 8th Judicial Conference held in May, it was declared that the reforms would be executed in four months. The declaration included extremely ambitious recommendations on regional economic integration and effective dispute resolution in the context of CPEC, alternative dispute resolution methodologies, strategies for delay reduction and expeditious case disposals, legal education and uniform judicial selection criteria; and revamping the criminal justice system. So far no reform has materialised. Even the chief justice of Pakistan has said occasionally that he has been “unable to put his house in order.”
Superior Court judges are appointed under Article 175-A of the Constitution, which authorises the chief justice of a high court to nominate a lawyer for appointment by the Judicial Commission of Pakistan. Those with right connections are often appointed notwithstanding their competence or integrity. Article 175-A may be amended to provide a fair opportunity of appointment to those who have the right skills and aptitude. In the UK, under the Constitutional Reform Act, 2005, candidates have to go through a written test, situational questions, role-playing and interviews. The candidates are short-listed and then considered for appointment. In Pakistan, a competitive judicial examination and interviews could be introduced as well. The composition of the Judicial Commission of Pakistan may also be revised to make appointments more collaborative; there is no harm if, as in the UK, professionals from non-legal fields are also represented on the Commission. The judges are to deliver decisions in complex socio-political and economic context. Their judgments have effects beyond the matter in dispute. Therefore, the judicial appointment process has to be more dynamic, transparent, and inclusive. Professional competence and integrity should be the only basis of judicial appointments, not extraneous factors i.e., socio-political stature. In order to enhance the jurisprudential quality of judgments, renowned law professors may also be appointed as superior court judges.
Further, appointments in the attorney general’s office and the advocate general’s office may be made on merit rather than the sole discretion of the president and the governor of each province. Articles 100 and 140 of the Constitution, which provide for such appointments, may be amended to encourage this. If these offices are stuffed with political appointees, and then their performance is not monitored, the cause of good governance and the rule of law as highlighted by PM Khan will be compromised.
Finally, there should be systematic reviews to gauge the performance of superior court judges as well as the attorney general and the advocate general’s office, particularly with reference to their understanding of law, their ability to ascertain relevant facts, and their skills in logical reasoning, legal analysis, judgment writing, case management, and efficiency. It is a common grievance that cases are not decided in a speedy fashion due to lack of adequate legal assistance by the state counsels or poor appreciation of facts or law by judges. Some cases are heard quickly; others are thrown into cold storage. Selective or random prioritisation of particular cases for hearing, delays the disposal of other cases. Thus, performance of judges and the state counsels should be reviewed far more rigorously. Anonymised performance data should also be made available to researchers and the Supreme Judicial Council enabling them to conduct objective studies and recommend policy changes.
According to a recently issued statement, there are 36,344 cases pending in SC. There is a huge backlog of cases in high courts and district courts. Usually, court cases remain pending for years. Our justice system is poorly ranked. Pakistan is placed at 105 out of 113 countries in the World Justice Rule of Law Index 2017-2018. It is welcome that the PM has expressed a strong desire to improve the rule of law and the delivery of justice. It is expected that new government and the judicial policy makers will consider essential reforms like the ones proposed here. As the PM pointed out, cases involving widows and orphans need quick disposal. But, it is not a matter of disposal for particular types of cases. Sector-wide judicial reforms must be institutionalised.
The writer is a lawyer
In the past, judicial reforms have often emerged and ended with a particular chief justice - they have not been properly institutionalised. For instance, Justice Syed Mansoor Ali Shah initiated reforms in the Lahore High Court but soon after the honourable judge was elevated to the Supreme Court, those reforms slowed down. The same pattern surrounds SC chief justices. Failure to institutionalise reforms weakens their implementation. At the 8th Judicial Conference held in May, it was declared that the reforms would be executed in four months. The declaration included extremely ambitious recommendations on regional economic integration and effective dispute resolution in the context of CPEC, alternative dispute resolution methodologies, strategies for delay reduction and expeditious case disposals, legal education and uniform judicial selection criteria; and revamping the criminal justice system. So far no reform has materialised. Even the chief justice of Pakistan has said occasionally that he has been “unable to put his house in order.”
There are 36,344 cases pending in SC and a huge backlog of cases in high courts and district courts. Pakistan is placed at 105 out of 113 countries in the World Justice Rule of Law Index 2017-2018
Superior Court judges are appointed under Article 175-A of the Constitution, which authorises the chief justice of a high court to nominate a lawyer for appointment by the Judicial Commission of Pakistan. Those with right connections are often appointed notwithstanding their competence or integrity. Article 175-A may be amended to provide a fair opportunity of appointment to those who have the right skills and aptitude. In the UK, under the Constitutional Reform Act, 2005, candidates have to go through a written test, situational questions, role-playing and interviews. The candidates are short-listed and then considered for appointment. In Pakistan, a competitive judicial examination and interviews could be introduced as well. The composition of the Judicial Commission of Pakistan may also be revised to make appointments more collaborative; there is no harm if, as in the UK, professionals from non-legal fields are also represented on the Commission. The judges are to deliver decisions in complex socio-political and economic context. Their judgments have effects beyond the matter in dispute. Therefore, the judicial appointment process has to be more dynamic, transparent, and inclusive. Professional competence and integrity should be the only basis of judicial appointments, not extraneous factors i.e., socio-political stature. In order to enhance the jurisprudential quality of judgments, renowned law professors may also be appointed as superior court judges.
Further, appointments in the attorney general’s office and the advocate general’s office may be made on merit rather than the sole discretion of the president and the governor of each province. Articles 100 and 140 of the Constitution, which provide for such appointments, may be amended to encourage this. If these offices are stuffed with political appointees, and then their performance is not monitored, the cause of good governance and the rule of law as highlighted by PM Khan will be compromised.
Finally, there should be systematic reviews to gauge the performance of superior court judges as well as the attorney general and the advocate general’s office, particularly with reference to their understanding of law, their ability to ascertain relevant facts, and their skills in logical reasoning, legal analysis, judgment writing, case management, and efficiency. It is a common grievance that cases are not decided in a speedy fashion due to lack of adequate legal assistance by the state counsels or poor appreciation of facts or law by judges. Some cases are heard quickly; others are thrown into cold storage. Selective or random prioritisation of particular cases for hearing, delays the disposal of other cases. Thus, performance of judges and the state counsels should be reviewed far more rigorously. Anonymised performance data should also be made available to researchers and the Supreme Judicial Council enabling them to conduct objective studies and recommend policy changes.
According to a recently issued statement, there are 36,344 cases pending in SC. There is a huge backlog of cases in high courts and district courts. Usually, court cases remain pending for years. Our justice system is poorly ranked. Pakistan is placed at 105 out of 113 countries in the World Justice Rule of Law Index 2017-2018. It is welcome that the PM has expressed a strong desire to improve the rule of law and the delivery of justice. It is expected that new government and the judicial policy makers will consider essential reforms like the ones proposed here. As the PM pointed out, cases involving widows and orphans need quick disposal. But, it is not a matter of disposal for particular types of cases. Sector-wide judicial reforms must be institutionalised.
The writer is a lawyer