This article is a two part series. Read Part II here.
“The live coverage of court proceeding will not benefit me, but the people of Pakistan. The live broadcast of court proceedings will expose some bad lawyers who do not come prepared. The live broadcast of the court proceedings will give the public access to the truth.”—Justice Qazi Faez Isa, Justice Isa Case: SC issues notices to federal government, The News, March 4, 2021
“Propaganda is spread against the Supreme Court that tax cases worth billions are pending here, but in tax cases, your situation is such that a response couldn’t be filed in one and a half years”—CJ Isa signals an end to case adjournments, The Express Tribune, September 26, 2023.
The 29th Chief Justice of Pakistan (CJP), Justice Qazi Faez Isa, who took the oath of office on September 17 2023, made the above observations in a tax case while heading a three-member bench on September 25, 2023. He asked the petitioner’s lawyer why he had not filed a reply despite the court’s direction issued back in March 2022. The bench, for unsatisfactory explanation, imposed a fine of Rs. 10,000 for this neglect. The apex revenue authority of the country, Federal Board of Revenue (FBR), was the petitioner in the case.
Every now and then, we keep on hearing from higher judicial echelons that the federal and provincial governments must run the affairs according to the Constitution of Islamic Republic of Pakistan and applicable laws, rules and regulations must be followed in letter and spirit. While this is an undisputable and uncontroversial command, there is also the need for ensuring all-pervasive reforms in the justice delivery system that includes among others an end to the long-drawn costly and time-consuming litigation. As charity begins at home, hopefully, the apex court will take the lead now to become a role model for all other institutions and departments.
The people of Pakistan for the last many years, especially after 2009 restitution of judges, who were unconstitutionally removed by a military dictator, have been hoping that the judicial system will improve. However, in reality, it has witnessed further deterioration with the passage of time, despite National Judicial Policy Making Committee (NJPMC) announced National Judicial Policy in 2009 (revised in 2012), for speedy justice—it was enforced from June 1, 2009.
The fact that there is a huge backlog in Supreme Court and other courts is highlighted every time a new CJP takes oath, and on numerous other occasions by the higher judiciary and other stakeholders. Hundreds of thousands of cases are pending in various courts and tribunals. The justice system is admittedly choked, but neither the legislators nor the executive branch of the government is taking remedial measures suggested by the judiciary to make the system more effective. We need fundamental structural reforms in the justice delivery system, which is the sine qua non of any democratic dispensation, as well as requirement of the Constitution.
The right of access to justice is an inviolable fundamental right enshrined in Article 10A of the Constitution, which says: “For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.” This right must be understood in wider terms to include speedy dispensation, the right to be treated according to law, the right to have a fair and proper trial and the right to have an impartial court or tribunal. Justice therefore can only be done if there is an efficient system to settle the rights and obligations of litigants within reasonable time. Judiciary should not only be independent but also competent and efficient.
The judiciary has never made public for open debate any concrete proposals, executable reform plans with clear timelines to fix the system. Successive governments and parliaments have also never debated any agenda to provide an efficient justice system. It is high time that we should move from clichés to practical steps for reforming the judiciary, which is a vital organ of the State.
The existing judicial system is abused by moneyed power. People allege that the rich, through hiring expensive lawyers “distort” or “delay” justice. Slogans such as independence of judiciary and justice for all in our milieu have proved to be mere clichés. The much-publicized National Judicial Policy 2009 (revised in 2012) has also failed to achieve its objectives. This and other measures are viewed as attempts to cure symptoms, not to remove the causes of the illness. Critics say that until today, no concrete and meaningful efforts have been made for undertaking effective structural reforms aimed at removing the underlying reasons for malfunctioning of the dysfunctional justice delivery system.
It is an irrefutable fact that the poor and weaker sections of society find it difficult to get justice. Many cannot afford to pay fees to lawyers and bear other expenses. Even if they do manage funds by borrowing or selling their assets, have to wait for umpteen years to get final settlement of the disputes. The prevalent judicial system, they complain, only protects the rich and mighty offenders.
Academics and social activists allege that the “defenders” of the system—both bar and benches—resist any radical changes, as it would hurt their financial interests, benefits, huge perks etc. As stakeholders in the exploitative system, both judges and lawyers, according to them, will never go for complete restructuring aimed at benefitting common citizens i.e. elimination of causes of litigation. They argue that even after giving clear finding against highhandedness of state functionaries or wrong investigation in criminal cases, the heads of respective departments are not punished. In the end, they and those committing wrong should be taken to task, if the system is to work within the four corners of law.
It is a fact that during the last many decades nothing worthwhile has been done by the legislature, executive or judiciary to bring fundamental changes in the existing outdated, exploitative, anti-people and elitist structures designed by colonial rulers for their needs and interests. These structures and outdated laws, rules and procedures are the real maladies faced by us. There is no will to dismantle these and adopt world best practices.
The reform agenda for all the three pillars of the state, judiciary, executive or legislature, based on patchwork here and there can never deliver, unless fundamental structural changes are made. There is an urgent need for replacing the prevalent, decayed and disintegrating systems with modern and efficient models working successfully in other countries. Since independence, we have failed to reconstruct, modernize and democratize our obsolete state institutions.
Mere clichés and rhetoric about reforms, we have been hearing for a long time, have not served any purpose. Mentioning about dearth of competent judges, delays in dispensation of justice, huge pendency etc are not enough. These are nothing but symptoms of an ever-ailing system.
The crucial question is: Do we have the will and a workable plan for removing the causes giving rise to symptoms of the malady? Mere mentioning and addressing of the symptoms without removing their causes has proved to be an exercise in futility. The judiciary has never made public for open debate any concrete proposals, executable reform plans with clear timelines to fix the system. Successive governments and parliaments have also never debated any agenda to provide an efficient justice system. It is high time that we should move from clichés to practical steps for reforming the judiciary, which is a vital organ of the State.
The available data confirms that every year more cases are filed than disposed—choking the justice delivery system. Despite this critical situation, there is no emergent plan to deal with it. No concrete efforts whatsoever have been made to remove the causes of unnecessary litigation and reducing and eliminating backlog. Our courts are still following the outdated procedures and methods whereas many developing countries have adopted e-system for filing of cases and their quick disposal through fast-track follow ups using information technology tools and taking e-courts or mobile courts at grass root levels.
Academics and social activists allege that the “defenders” of the system—both bar and benches—resist any radical changes, as it would hurt their financial interests, benefits, huge perks etc. As stakeholders in the exploitative system, both judges and lawyers, according to them, will never go for complete restructuring aimed at benefitting common citizens i.e. elimination of causes of litigation.
Even simple solutions like awarding costs to frivolous litigants, adjournment only in exceptional circumstances and active case management through computerised systems have not been adopted at lower levels, what to speak of structural reforms and updating of outdated laws, rules and procedures. We all know the issues faced by our judicial system, namely, complexity of procedures, outdated methods, lengthy hearings, highhandedness of public functionaries that keep on making illegal or unlawful orders but never get punished for their wrongdoings, lowering standards of pleading and adjudication and rich parties taking advantage of law houses of relatives of serving judges.
It is undisputed that in order to avoid conflicts of interest and the misuse of the prestige of office, judges must give up their political, charitable, and business activities when they take the bench. Until 1961, in India, there were instances in which lawyers appeared in the same court over which their relatives were presiding. However, after the Advocates Act, 1961 empowering the Bar Council of India to frame rules on the matter, such incidences became rare. Under Rule 6 of this Act, the Indian Bar Council prohibited that “no lawyer can practice in a court where any of his relatives functions as a judge”. The list of such relatives included his/her father, grandfather, son, grandson, uncle, brother, nephew, stepbrother, husband, wife, daughter, sister, aunt, niece, father-in-law, brother-in-law or sister-in-law. In Pakistan, no such prohibition exists till today.
When in India, Justice P. Balakrishna Iyer became a judge of the Madras High Court, his son advocate. P. B. Krishnamoorthy shifted his practice to another State. When Justice V. R. Krishna Iyer became a Supreme Court judge, his son who was a lawyer as well, chose not to practice in any court in India opting for private employment. Justice V. Sivaraman Nair of the Kerala High Court had worked as a junior of Justice Krishna Iyer. However, as soon as his daughter and daughter-in-law started practicing in the Kerala High Court, he requested the President of India to transfer him to another State.
Any such example is unheard of in Pakistan. On the contrary, many serving judges have their kith and kin practicing in the same court, though not appearing before them. Allegedly, within a few years of starting practice, they have accumulated substantial assets and enjoy a luxurious life. This is very different from the days when the sons and other relatives of judges could derive no benefit from their relationship and had to struggle at the bar like any other lawyers. One hopes that prohibition like one prevalent in India will be considered. Secondly, all the judges of Supreme Court and High Courts, following the CJP, will place their assets, including their spouses and children, on the respective websites. This will be a starting point of much needed across the board accountability in the country.
This article is a two part series. Read Part II here.