Some argue that bar councils oppose judicial reforms to protect lawyers’ practices. They refer to the National Judicial Policy 2009 for early disposal of cases initiated by former chief justice Iftikhar Muhammad Chaudhry and the reforms of Chief Justice Asif Saeed Khan Khosa to reduce unnecessary burden on courts. They argue that lawyers oppose these reforms because they benefit from numerous cases with extended delays. My contention is that judicial reforms in Pakistan cannot succeed without meaningful institutional engagement with the bar. Bar and Bench, being two wheels of the Chariot of Justice, must work together to reform our justice system.
CJP Khosa apparently believes that our courts are burdened with cases which may be resolved outside of the courts - for example, under the Police Complaint Redressal Mechanism at the district level. This mechanism addresses issues related to the registration of cases by police, transfer of investigations from one police officer to another and forms of neglect, failure or excess committed by police authorities in relation to their functions and duties (Section 22-A (6) of CrPC). Justice Khosa wants to avoid the involvement of the judiciary in the functions of the executive; he stresses the constitutional doctrine of “separation of powers.” Those who oppose these judicial reforms argue that diverting these cases to the police will open another avenue of corruption and expand powers of the police; that the new mechanism will cause undue inconvenience to complainants.
Unfortunately, judicial reforms in the past have largely failed due to limited consultation with key stakeholders
In any case, the current focus on judicial reforms is appreciated given Pakistan’s ranking (117 out of 126 countries) in the World Justice Project’s Rule of Law Index 2019. Unfortunately, judicial reforms in the past have largely failed due to no consultation or limited consultation with key stakeholders. Therefore, an institutional mechanism for effective consultation between the bench and the bar is required. Further, the process of judicial reform should be institutionalised to sustain any change of chief justice.
Section 3 of the National Judicial (Policy Making) Committee Ordinance, 2002 may be amended to provide representation to national and provincial bar councils in judicial policymaking. For comprehensive judicial reforms, periodic national surveys can also be conducted to collect perceptions as to the functioning of our justice system.
NJPMC’s opinion that the issuance of directions by Justices of the Peace under Section 22A of CrPC, which are now proposed to be issued by district level SP Complaints, are executive in nature cannot overrule earlier judgments of the Supreme Court. A five-member SC bench has ruled that the functions of an ex-officio Justice of the Peace are not executive, administrative or ministerial inasmuch as he does not carry out, manage or deal with things mechanically. The SC held that “the functions of a Justice of the Peace are quasi-judicial as he entertains applications, examines the record, hears the parties, passes orders and issues directions with due application of mind.”
It is the function of courts to direct the executive to act in accordance with law. If the issuance of ‘quasi-judicial’ directions is construed as an ‘executive function,’ then the mandate of courts to deliver justice to citizens against the executive authority of the state would fail. The concept of judicial review dictates that courts must ensure that executive officials comply with the letter and spirit of law. The NJPMC’s argument, therefore, challenges the constitutional doctrine of separation of powers.
However, Justice Khosa’s argument seems valid on the ground that if a complainant is provided a remedy within the hierarchy of police then recourse to the courts in the first instance may be avoided to reduce burden on the courts. It is not clear that the proposed reforms will increase malpractice and inconvenience or enhance the powers of the police. They could even make the SHO more accountable within the police department. Further, orders passed by the police remain subject to review by the courts.
In a nutshell, the proposed judicial reforms will reduce some of the burden on our courts. The long-term solution, however, lies in increasing the number and capacity of judges at each level and cultivating widespread public appreciation for the degree to which judicial rulings will be enforced. Given the fragile performance of our legal system, all the stakeholders should work for earnest judicial reforms. As such, the government and the bar should be encouraged to engage with the reform process and support effective judicial reforms.
The writer is a lawyer