02/12/2019
By Malik Altaf Javaid (Advocate)
Ever since March 2007, when Chief Justice Iftikhar Chaudhry was suspended by President Pervez Musharraf’s, Pakistan has witnessed an era of judicial “intervention, activism and delay” that has led to unusual pendency of cases. Many consider this activism and intervention are the real causes for some 1.9 Million cases pending across Pakistan. Also, as some believe that as only the Chief Justice has the power to exercise “suo motu”, therefore, the remaining 3,999 judges working across Pakistan are available for “expeditious disposal of the cases”. This, according to them, suggests that the judges might be working as efficiently as they should. However, it is not as simple as it sounds.
Some maintain that it is the poor legal education system – or the nursery of our legal system – which is not producing quality legal experts. Others lament the outdated laws, while many hold that judicial policies mutilate the law, and therefore, leading to delays and backlogs.
As maintained by one section of legal experts, there is a sheer disparity in the growth of the judicial system and the population of Pakistan. They believe that in 1973, the population of Pakistan was around 65 million, which is now over 200 million, with the number of Supreme Court Judges remaining constant at 17. One cannot discount the approach of the “executive”, which is only using judicial delays as means to “criticize” the judiciary.
Judicial delays have never been a serious concern for the executive and/or the legislature. However, in order to completely sift the burden on judiciary for these delays, the executive maintains it is the judicial intervention which is the root cause for the pending 1.9 million cases, conveniently ignoring the fact that the number of judges in the superior judiciary are to be increased by the legislature. Laws are to be amended by the legislature. The judiciary neither has funds nor infrastructure. The judicial organ is to be funded by the executive and land for establishment of new courts is also to be provided by the executive. As such, one could safely maintain that the rhetoric of the executive could, at best, be termed as political point scoring or political jugglery.
On a daily basis, one finds legislators complaining about judicial interventions as well as massive delays, realizing little that even the Pakistan Muslim League Nawaz (PLM-N) Government, having 2/3rd majority in the Parliament during its term, did little towards legal reforms. The apparent helplessness of the legislature raises serious questions about their legislative wisdom and their seriousness to find out a panacea for judicial intervention. This lack of seriousness from the legislators has not only impeded legal reforms, but has also crippled the government, with the judiciary having to assume some functions of the executive.
Judicial intervention apparently flows from the principle of trichotomy of powers and the powers given by the Constitution; a document framed by the legislature with no intervention of the judicial organ. Hence, when the Parliament holds the power of reforming the judiciary, why lament the judicial intervention or apparent over-reach? It took days to annul the powers of the President under Article 58(2) (b) of the Constitution of Pakistan, 1973, whereas even after decades, nothing has been done on other issues. The legislature has never seriously mulled to introduce reforms in the Code of Criminal Procedure 1898 or to change the Code of Civil Procedure 1908, which clearly are outdated legal frameworks. The legislative history is also silent about the increase in number of judges. The committees of legislature have never devised a framework for a dialogue with the judiciary to curb the issue of chronic judicial delays.
Why has this not happened?
Judicial delay is not a priority for the legislature. The legislature, prima facie, does not consider the expeditious justice a fundamental right of the masses. The legislature holds itself in high regard and proudly maintains “the judiciary is independent” to get itself absolved from everything. In this backdrop, if we examine the elimination of Article 58(2) (b), introduced through the 8th Amendment, one could safely maintain it was meant to protect the personal interests, and never the democracy. The unholy nexus of the legislature is a self-explanatory proof of this fact. The premature dissolution of the national and provincial assemblies was causing trouble the legislators in terms of not getting an opportunity for re-election, and therefore, the best option for them was to “delete” the powers from the statute book. Hence, the parliamentarians voted in favor of the amendment. Needless to say, this was motivated by personal interests.
Nevertheless, let’s examine the issue of judicial delay.
The procedural laws – The Code of Civil Procedure 1908 (CPC) and the Criminal Procedure Code 1898 (CRPC) – are also unchanged. The legislature, in particular, without examining its contents, has relegated these as “outdated laws”. However, in reality, these are the same laws under which cases were decided expeditiously and there were no complaints of judicial delay. Even today, there are hardly any complaints on the efficacy of these two laws, the only issue is with regards to how “outdated” they might be. The efficacy of the procedural laws has been undermined by the judicial policies, manifest of individual wisdom. The procedural laws, manifest of collective wisdom, are apparently helpless before the policies since the latter are compiled by the persons available at helm of affairs against the former whose “founders” have long passed away.
To quote an example, item 10 of the Chapter Expeditious Disposal of the Case of National Judicial Policy 2009 provides that cases involving punishment of seven years or more shall be tried within one year. Whereas the law provides the challan (police report) shall be submitted within 14 days with an allowance of 3 days if the report is not submitted in 14 days (Section 173 CRPC), with the concerned magistrate. The magistrate, after collecting the entire record if believes that the a case is made out it, shall commit it for trial and supply copies of the relevant document to the accused seven days prior to trial (Section 265 (C ) & (D) of the CRPC). The concerned court shall reexamine the same and if decides to try the accused, the charge shall be framed, followed by recording of statements of witnesses and judgement. The judicial policy has however created room to prolong the trial for one year which otherwise could have concluded within a month. The efficacy of the law could be appreciated from the fact that Military Courts also use the Criminal Procedure Code 1898 for trial and there is no other special law.
To quote another example, while striking out the Military Courts established in 1997, the Supreme Court observed that if similar facilities of submission of challan and attendance of witnesses are provided to the ordinary courts, the cases could be decided as expeditiously as done by the Military Courts. As such, there is no strength in the claim that the procedural laws, CRPC and the CPC, are either outdated or ineffective. The laws implemented by Lord Michalay are as effective as they were some hundred years ago. The change, however, is in the social fabric. The poor legal education system, apparent disparity between the growth of population and judicial system, control over the resources, political might, personal vendetta and bribery are few of the elements that are prominent in this change.
The issue of population boom is perhaps the “mother of all other issues”. This can be explained with the help of other examples. The District & Sessions Court Malir, Karachi, was established in September 1994 with five courts. After 25 years, it has now extended to 23 courts. During these two and a half decades, the population has grown ten times. It would be useful to point out here that the apparent increase in the number of courts is due to addition of civil judges/magistrates, who have been increased from 4 to 13, whereas it only has five additional District & Sessions judges and four civil judges. It must be pointed out that the appointment of five additional District & Sessions judges and four senior civil judges took a period of 25 years. One would be justified to question the efficiency of Ministries of Law, Justice & Parliamentary Affairs.
Likewise, a Circuit Bench of Sindh High Court is working in Hyderabad. It caters an area of around 77,029 square kilometers, having a population of 15,538,056. In the recent past, it used to have four judges, while presently it has the strength of five judges. One judge is controlling an area in excess of 15,000 square kilometer and a population of over 31 million. It would be necessary to mention here that as per Article 193 of the Constitution of Pakistan 1973, the number of judges would be determined by law, and the law making powers solely vests in the legislature, and the judiciary has no say in the matter.
Then, with all these shortcomings, who is to blame?
Though we cannot absolve the judges in terms of their efficiency. However, no matter how efficient the judges might be, the backlog of 1.9 million cases is too much for 4,000 judges working across Pakistan, as pointed out by the Chief Justice of Pakistan.
The Supreme Court of Pakistan has sanctioned the strength of 17 judges, who are to take care of the legal issues of a population of more than 207 million, as well as the issues of the government and other litigations arising from “suo motu” and human rights jurisdiction. It is worth noting that the superior judiciary is working with the same strength as sanctioned in 1973, while the population has increased manifold. In more than three decades, this issue has never been dealt with by the Parliament. The executive has never taken into consideration the impact of population growth and its correlation with the number of judges. History shows that the executive has always avoided spending resources on the judicial organ of the state. Ironically, even the “access to justice” program was funded by the World Bank.
Where Karachi, with a population of around 22 million, has 249 judges at its disposal, Lahore, with almost half the population, has 217 judges working in the district judiciary. The number of constituencies of the National Assembly and Provincial Assemblies have been subjected to change based on the population. However, increase in the number of judges never found any attention of the legislature. Likewise, the budgetary allocation is in the hands of legislature. The forum is with the legislature. The judiciary can advise, not compel. An increased number of judges can, definitely, enhance the health of the judicial system and the key to this solution lies with the executive and legislature arms of the state.
The unregulated legal education is a silent addition to judicial delays. One could safely maintain that after population, it is another factor that contributes towards judicial delays. Lawyers are the lynchpin of the entire judicial system. The “merit” for admission into law schools and universities is the lowest amongst other faculties in Pakistan, which is totally opposite to the standards in the rest of the world. Unregulated law schools, which offer a degree without attendance, are abundant in Pakistan. The law schools are mass producing lawyers, without any practical knowledge or experience, which ultimately reflects in their performance. The judges, prosecutors, attorneys, NAB prosecutors, Advocate Generals and Attorney Generals are appointed from the mass produced lawyers. Saqib Nisar, Chief Justice of Pakistan, took an action against these law schools and banned many of them, which was widely applauded by the Bar Councils. However, it was a judicial intervention, again, on behalf of the executive.
The continuous rhetoric by legislators on print and electronic media, with regard to judicial delays, is an attempt to divert the attention of the litigants. It is only the legislature and the executive, which has the power to increase the number of judges in the superior judiciary. It is up to the legislature to allocate budget to the judicial organ, since the latter has no “income” of its own. If the efficiency of judges and lawyers, and the tendency of the litigants, cannot be ignored, then the criminal negligence of the executive cannot be overlooked in the judicial delays, which is a prime factor in causing judicial delays.
When it comes to judicial intervention and activism, there are two major criticisms in this regard; one, it causes judicial delay and second, it causes administrative delays. The executive argues that it is a misfortune for the State that, at times, the judiciary has been found involved in “running” PIA, steel mill, hospitals and schools, instead of proceeding with the pending cases. The judiciary, however, claims to be endeavoring for the enforcement of fundamental rights through the constitutional jurisdiction conferred upon it. The legislature believes that Article 184(3)’s excessive use has rendered it as a tool for intervention in judicial functions and a cause for judicial delays. The opposing argument is; Article 184(3) is provides a check on the legality of administrative functions. This is because the people of Pakistan should not be at the mercy of the legislature. And by now, the general public has shown a lukewarm response towards challenging the legality of administrative functions.
The Constitution of Pakistan 1973 was framed under the leadership of Zulfiqar Ali Bhutto, when there were no other noticeable political parties other than the PPP. Therefore, the founders of the Constitution would have been very mindful at the time of framing Article 184(3), whereby they allowed the judicial organ to take certain actions.
What prompted Bhutto to confer such, apparently dangerous, power on the judicial organ?
Was it a result of far sightedness?
Was he trying to strike out a balance?
Was he looking to pollute the executive authority?
Was he aware that he would be succeeded by the inefficient? or,
Was he intending to create a situation of judicial and administrative delays?
A simple answer to all these questions might be that Bhutto wanted some “check” on the executive actions. One must keep in mind that in the yesteryears, every executive had demanded complete immunity to their actions, irrespective of its impact on the society. Therefore, one could safely lean in favor of the fact that the judicial power in the constitution was granted to strike out a balance and was never meant for judicial and administrative delays.
Now, what if this power, which was meant to create a balance, causes imbalance?
Once again, it is with the legislature to consider. 18 amendments have been made in the Constitution, including the one whereby the unbridled powers of President to dissolve the National Assembly were taken away. Then, why is the legislature observing silence? Why is the legislature not mulling to amend this power? Perhaps, the legislature is aware of its shortcomings and poor efficiency. One could argue that good performance by the civilian governments could also render Article 184(3) useless, as there would be little need of its use by the judiciary. Moreover, even though the legislature has the option of amending Article 184(3), it would result in giving the executive the absolute power.
One could also argue and maintain that almost 3,999 judges do not enjoy the power of “suo motu”. Therefore, the argument of judicial intervention causing judicial delays, by large, is an irrational argument. Hence, only an increase in the number of judges, improved quality of lawyers, meaningful education, a collective approach, precedence of collective wisdom over individual wisdom and a wise legislative approach, could improve the health of the judicial system. With this better health of our judiciary, the menace of judicial delays could be dealt with effectively.
