The de­liv­ery of jus­tice

The Pak Banker - - EDITORIAL - Ad­nan Adil

EVEN af­ter al­most three years in of­fice, the present govern­ment has not taken a sin­gle step for im­prov­ing the slow-mov­ing ju­di­cial sys­tem that has not only spawned law­less­ness but also alien­ated the peo­ple from the state. There are two ob­vi­ous rea­sons for the in­or­di­nate, pro­tracted de­liv­ery of jus­tice in this coun­try: one, short­age of judges at all tiers of the ju­di­ciary, and two, de­lay­ing tac­tics used by lawyers to pro­long cases through ad­journ­ments. Our rulers can ad­dress both the is­sues if they have a will to do so.

Ac­cord­ing to for­mer CJ of the Supreme Court, Jawaad S Khawaja, a case ini­ti­at­ing at a lower court in our coun­try on av­er­age takes 25 years for fi­nal set­tle­ment at the Supreme Court. Only this Jan­uary, a twom­em­ber bench of the Supreme Court de­cided a 55-year old case of in­her­i­tance. At the end of 2015, nearly 27,000 cases were pend­ing at the Supreme Court and 60,000 be­fore the La­hore High Court (LHC) and the Sindh High Court each. A large num­ber of th­ese pend­ing cases were not less than a decade old.

This is de­spite the fact that the pen­dency in the two high courts sig­nif­i­cantly de­clined last year as com­pared to the pre­ced­ing year - 40 per­cent at the LHC and 20 per­cent at the SHC - ow­ing to im­proved man­age­ment of cases. The sys­tem, how­ever, is so acutely ill that small mea­sures can­not clear the back­log piled up over the decades. A ma­jor fac­tor, but not the only one, be­hind the slow ad­ju­di­ca­tion of cases is short­age of judges in the ju­di­ciary. For­mer Sindh High Court CJ Jus­tice Faisal Arab is on record blam­ing the scarcity of judges for de­lay in dis­pen­sa­tion of jus­tice.

Ac­cord­ing to me­dia re­ports, at the end of 2014 the Supreme Court and five high courts were up against 304,813 cases with no more than 130 judges on their strength. How the num­ber of judges af­fect the pace of jus­tice can be seen from the ex­am­ple of the Sindh High Court where Chief Jus­tice Faisal Arab ap­pointed 10 ad­di­tional judges last year as a re­sult of which the num­ber of pend­ing cases sig­nif­i­cantly dropped in a mat­ter of a few months. There are strong lob­bies, es­pe­cially elite lawyers based in big cities, that re­sist greater strength of su­pe­rior courts. When the Se­nate re­cently passed a bill to raise strength of the Supreme Court from 17 to 26, some se­nior lawyers, in­clud­ing the ex­ec­u­tive com­mit­tee of the Pak­istan Bar Coun­cil, op­posed this move, say­ing there was a need to in­crease judges at lower courts and high courts - not in the apex court. The fact is that there is a need to have more judges at all tiers.

A sig­nif­i­cant num­ber of the ap­proved strength of judges re­mains va­cant in high courts. At present, the LHC is short of at least five judges against its sanc­tioned strength of 60. The Sindh High Court ( SHC) never worked to its ap­proved strength of 40. Th­ese days, there are 33 judges at the SHC. In 2014, it worked with only 23 judges. A com­mon ex­cuse for va­can­cies in su­pe­rior courts is that com­pe­tent peo­ple are not avail­able. It de­fies com­mon sense that in a na­tion of 200 mil­lion with a 100-year-old tra­di­tion of ju­di­cial sys­tem based on com­mon law, there is a short­age of ca­pa­ble peo­ple who can work as judges of high courts.

Ap­pro­pri­ate peo­ple could be in short sup­ply for high courts for the rea­son that lower courts do not have ad­e­quate num­ber of judges. If young lawyers are re­cruited in the lower ju­di­ciary in large num­bers, they can be­come ex­pe­ri­enced enough over a cer­tain pe­riod of time to be el­e­vated to the high courts. Ac­cord­ing to fig­ures of the Law and Jus­tice Com­mis­sion, at the end of 2014, around 1.4 mil­lion cases were pend­ing in lower courts for which there were only 4,000 judges. There is need to en­large this num­ber by two to three times to make the sys­tem work. Judges in lower courts are so over­bur­dened that a judge has to deal with 200-400 cases ev­ery day.

For a na­tion with a stand­ing army of 600,000 and a po­lice force of 400,000, em­ploy­ing 4,000-8,000 more judges for a func­tional sys­tem of jus­tice should not be a big deal. Sim­i­larly, the govern­ment can make a law that fixes a time­frame for the set­tle­ment of cases, and pe­nalise those re­spon­si­ble for de­lay. Fur­ther, our law­mak­ers need to se­ri­ous con­sider es­tab­lish­ing an al­ter­na­tive dis­pute-res­o­lu­tion mech­a­nism by amend­ing the Ar­bi­tra­tion Act, 1940. In his ad­dress to the Se­nate last Novem­ber, Chief Jus­tice An­war Za­heer Ja­mali said that 80 per­cent of dis­putes in the coun­try are set­tled by the un­reg­u­lated in­for­mal jus­tice sec­tor such as jir­gas and pan­chay­ats. This mech­a­nism can be for­malised by plac­ing it un­der cer­tain rules and reg­u­la­tions. The sug­ges­tion that the num­ber of ap­peals against a court ver­dict be re­duced from three to two, es­pe­cially intra-court ap­peals, also mer­its se­ri­ous con­sid­er­a­tion.

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