June issue 2009

In October 2002, the Musharraf government introduced a National Judicial (Policy Making) Committee Ordinance 2002 (No LXXI). Under the ordinance, a National Judicial Committee, headed by the chief justice of the Supreme Court, and comprising the chief justice of the Federal Shariat Court and the four provincial high courts, was set up. The committee was entrusted with the task of ensuring a uniform judicial policy within the court system, in coordination with the Law and Justice Commission, established under the Law and Justice Commission of Pakistan Ordinance 1979.

The committee is also expected to improve the capacity of the judicial structure, to establish performance standards for the judiciary, including improving its terms and conditions and to publish annual reports on the superior courts.

Even though it has been unable to achieve much so far, the committee has taken up issues like the automation plan for the judicial institutions. This plan would result in computerising all courts at the district level. An appropriate software to automate the courts will also be part of the process. The agenda also includes the construction of jails near the district court premises, court complexes in newly-established districts and the revision of certain allowances, including transportation for judicial officers. However, the committee has done little to implement its recommendations.

The committee’s approval of the National Judicial Policy at its April 18-19, 2009 meeting was viewed as a welcome step. Dr Faqir Hossain, secretary and registrar of the Supreme Court, unveiled the policy at a press conference. The policy deals with subjects like the disposal of cases, eradication of corruption and observance of the code of conduct by the judges.

One does not have to be a rocket scientist to gauge that the system of justice prevailing in the country is inefficient. The new judicial policy, for the present, has concentrated mainly on two problems: delay in the disposal of corruption cases and the lack of an independent judiciary. As of April 1, 2009, 1.565 million cases were pending in the various courts of the country (see box). This is not a huge number considering the size of the total population.

The committee has attributed the delay in the disposal to:

• non-service of summons
• non-filing of written statements
• non-filing of appeals in a timely manner
• non-production of evidence
• transfer of cases from one court to the other
• non-punctuality and non-availability of judges
• excuses of lawyers
• failure to follow the law and the superior court precedents
• contrary judgments by different courts on identical issues and questions of law
• non-registration of an FIR
• non-cooperation of police with the accused or complainant
• non-completion of investigation within the stipulated time
• delayed submission of challans
• non-production of accused from prisons
• getting remand without production of
  accused in court
• not following the cause list

The committee has asked all the parties concerned — the judges, lawyers, police and prison authorities — to make a concerted effort to minimise delays and expedite trials. It has also asked judges of the superior courts to follow the code of conduct for judges and to take all necessary steps to decide cases within the shortest possible time to minimise the sufferings of the litigants. A judge who is unmindful or indifferent towards this aspect of his duty is not faithful to his work (see box for detailed recommendations).

It is common knowledge that litigants sometimes talk about hiring a judge rather than a lawyer in the courts. The committee took strict notice of the increasing tendency among the judicial officers and the court staff to indulge in corruption. It directed that the Lower Judiciary Conduct Rules, framed by the Peshawar High Court and adopted by the Lahore High Court, should be considered for adoption by the other two high courts. In addition, the committee promised increments and posting of choice under the new policy to honest and efficient judges.

It also decided to improve the present mechanism for initiation of disciplinary action against corrupt and inefficient judicial officers and court staff. It decided to establish a “cell for the eradication of corruption from the judiciary.”
This cell would work under the supervision of the chief justice of the high court. Copies of complaints of corruption may also be forwarded to the registrar of the Supreme Court.

Action against those judicial officers and staff who have a reputation of being corrupt, or those who ostensibly live beyond their means of income will be initiated under the new policy. Criminal cases can also be registered against them and they can be grounded by making them Officers on Special Duty (OSDs). Fast-track disciplinary proceedings against them have been recommended.

Moreover, the high court judges have been directed to undertake surprise inspections to evaluate and monitor the working of the subordinate judiciary. In this respect, the judges for each division or district may be appointed on a rotational basis. The district and sessions judges have been asked to report about the corruption and misconduct of their subordinate judges. All judges have been asked to write order sheets personally, in all cases.

No judge or other official can be posted in their home district, and all those posted in a particular district beyond three years would be transferred.
Complaints of corrupt practices and professional misconduct against lawyers can also be filed. These can be sent directly to the chief justice of the respective high courts, who can then forward them to the bar council for action. The council should take immediate action on such complaints under intimation to the registrar concerned.

Action has already been initiated with respect to the recommendations concerning the independence of the judiciary and its separation from the executive branch of government. Serving judges, working in executive positions in the federal and provincial governments, have also been recalled. It has also been decided that no chief justice or a judge of the superior courts shall accept appointment as an acting governor of a province. Even retired judges have been asked not to accept any appointments which are lower than their status or dignity, such as presiding officers of forums like banking or customs courts. Former judges holding such positions will be asked in writing to relinquish charge in the interest of judicial independence and separation from the executive.

The government has also been asked that all courts and tribunals under its control be placed under the supervision of the judiciary, and appointments in such courts should be made on the recommendations of the chief justice of the high court.

The irony is that all the above may represent the wish list of our chief justices but may not be achievable. Generally speaking, the policy has required the courts to decide the cases within a period ranging from 15 days to six months. How is it practical for a judge, who has more than 100 cases a day in his docket, to achieve this target, when, if he gives 10 minutes to a case, he would need to work for more than 16 hours a day to simply hear them? The question of disposing them has still not arisen.

Disposal demands much more time, including recording of evidence, hearing of arguments, and finally writing the judgment. Despite the fact that lawyers are to be blamed for constantly seeking adjournments in hearings on petty grounds, the judiciary also takes its task lightly, preferring to adjourn cases rather than performing the hard task of genuinely considering the case.

All of us who desire improvement tend to go after the administrative aspects. The judiciary is being ordered to decide cases within the shortest possible time. The chief ministers are touring police stations to review FIR records to see if anybody is being illegally detained. Ministers are visiting hospitals to catch missing staff. All of these efforts are commendable but insufficient to reform the system. There are already several statutes that require complete disposal of cases within periods as short as seven days. The Industrial Relations Ordinance 1969 dealing with labour petitions is one example, but not a single labour petition was completely heard by the court in the stipulated time frame.

The authorities concerned need to acknowledge that the whole system is deteriorating, and it now requires a new intellectual impetus. The current legal system that the British introduced in the 1840s, is now outdated and requires drastic improvements. We have failed to bring about any meaningful changes in it since independence. We remain dissatisfied and can, mercifully, discern that something is amiss. However, we end up dealing with the administrative aspects, which is actually a consequence, and not the cause of all the rot. The laws need to be reviewed, and a new judicial structure and system is the need of the hour.

As far as corruption in the judiciary is concerned, is there a single institution in our country that is free of corruption? There is hardly any accountability in the country; and what is a judge expected to do when he sees that the rulers, and even the superior court judges, roam about scot-free and where the scale of corruption runs into billions. What is a poor judge, earning less than Rs 25,000 a month, expected to do in an environment where a billion-dollar case is being heard in a court under his jurisdiction. Changing the ranks of judges — calling them first-class magistrates instead of third-class — and installing computers in the court rooms is not going to improve the system. It’s time someone at the helm of affairs starts moving the Victorian and Edwardian furniture out of our legal system.

Anees Jillani is an advocate of the Supreme Court of Pakistan.