October Issue 2012

With more than 1.6 million cases pending in the courts, Newsline turned to Justice (R)  Nasir Aslam Zahid, former chief justice of the Sindh High Court, to understand the causes of this backlog and what can be done to alleviate it.

What do you think are the main reasons for so many cases endlessly pending in court?

I don’t believe there are too many cases pending in court. In Sindh, we have less than 100,000 — maybe about 80,000 or 90,000 cases. Look at the population of Karachi; we are 20 million people. In India, there are 30 million cases pending in court.

Isn’t that but natural given that their population is much larger than ours?

No, just look at the figures: Out of a population of one billion Indians, 30 million makes for 3 per cent cases. In Pakistan, with a population of 180 million, if the pendency is 1 million cases, that’s less than 2 per cent of the population. So our pendency rate is much, much lower than India’s.

But haven’t many of these cases been pending in court for years?

That is another point. There are several factors that contribute to this issue. The judiciary is at fault. The investigation agencies — the police — are at fault. Even the litigants are at fault. Our entire society is fault. People think that every case will take ages in court. If they knew a case would be decided within a year or within three months, then people would be more careful about engaging in criminal activities. It’s the same in India. I just read in a book somewhere that one land dispute case has been pending in court for 260 years. It began in 1750 and it’s still pending.

But let’s come back to Pakistan…

Pakistan’s situation is manageable. My view is that there is light at the end of the tunnel if everyone commits to changing the system — especially the government. Right now most of all, I blame the government for the current state of affairs. Till the government doesn’t give priority to the judiciary; till it doesn’t provide funds, nothing can move forward. But of course, this need is not only confined to the judiciary, it applies to every aspect of life, especially the police and other government administration departments.

Hazrat Ali said that the ‘best’ man should be chosen for the position of chief justice. He maintained that this judge should be ameen and shareef (pure and decent) and then with his consent other judges should be appointed. Then those judges should be given such respect that even the head of the state —the Khalifah — should appear before him. There is no mention by him of any provision such as Article 248 which gives exemption to the President and the governor from appearing before the chief justice. Hazrat Ali deemed that a judge should be given all the necessary facilities — a really good package — so that when he is sitting in court he should be concerned about nothing but serving justice. But look at how it is in our courts. The electricity often goes and the judges sit in the heat, sweating, and often writing by hand because the stenographer doesn’t know any English.

Till a judge is given enough facilities things cannot improve. A judge should be given so much money that he is able to send his children abroad to study. He should be made so comfortable that he’s not bothered about other things and is only concerned about what goes on in the cases he’s involved with. Our country’s problem is that there is no sense of priority and I’m not specifically blaming the present government or the PPP, PML-N, PML-Q or anyone. What I’m saying is that no government since 1947 — here or in India — has given the judiciary the priority that it should be awarded particularly in the Islamic Republic of Pakistan. If you look at the Quran, the word meezan (tarazu) has been mentioned many times. It talks about the need for justice; the need for social justice, but no one is willing to give it that priority.

Do you think this state of affairs is also largely due to a shortage of judges?

My personal view is that if I had more time with each case, I’d have more than a large number of these cases settled. For example, in civil cases, if the case is regarding a dispute, you can’t read the entire file because you have 50 or 100 cases to hear that day. If I had more time to give to each civil case, I would have disposed of at least two or three every day.

When I was a new judge in the High Court, I was reading a case file and in it I found a letter which stated that the defendant had agreed to give the money he owed, but later refused to pay. Four years after the fact, the case came to me and I asked the two clients to come to the bench. I asked them if they were willing to settle and both parties refused. Then I asked them about the letter. The lawyers objected, but I told them I had the power to discuss the cases with both parties before the trial started. I showed them the letter; I asked the defendant to tell me if this letter had really been written by him. I told him that it was up to him whether to answer or not, and he informed me that he did indeed write that letter. So I said that meant he had agreed to pay the amount involved. He disagreed and said he’d like to fight this in court. But I did not relent and told him that since he had acknowledged writing the letter I was going to pass judgement based on admission and he had to pay. The lawyers, of course, objected vociferously and finally managed to have the sum involved reduced. Ultimately both the parties agreed on the amount. I gave that case about 30 to 45 minutes. But when you have 50 or 100 cases a day, the judge subconsciously feels strained because he knows he can’t spend that much time on each case.

You stated earlier that the number of pending cases is the fault of the judiciary and the fault of lawyers. Why do you think it is their fault?

It’s much more than that. If the police doesn’t investigate a criminal case properly then the entire system falls apart. Why do you think there aren’t enough convictions? Even of the cases that are fought, the conviction rate is only 2-3%.

But that is due to the deplorable state our criminal justice system is in. Just look at how poorly an SHO is paid. Furthermore, appointments are often political. The judiciary should be involved in this selection process and a commission should be made. The commission should select these people. Unfortunately, often, even if a commission is made, the people heading it are themselves politicised. Instead of them if you had good judges at the helm of these commissions things would be different.

Do you agree with the common perception that many judges are corrupt?

What I mean when I say ‘judges are politicised’ is that that there is this fear, this pressure on judges that makes them ask ‘if I take this decision what will happen?’ The judge who was handling Mumtaz Qadri’s case has had to leave and settle in Saudia Arabia. I believe he applied for asylum because he was afraid he might be killed.

Now in this situation, I must reiterate that it is the government’s responsibility. Just take the Yaum-e-Ishq-e-Rasool incident. Did they not have knowledge of what could happen in advance? Couldn’t they have controlled it? I hear that the rangers were absent that day; the police was also standing on the sidelines. The political will was not there.

I work with prisoners. Our courts are about 6 miles from the Central Prison. They give these prisoners breakfast in the morning and then take them to court and bring them back at 5pm. They handcuff them and lock them up in a van and take them to court. And if their families or friends are not there to feed them while they wait for their hearings, they end up starving till the evening. And did you know there are no toilets in city courts? Not for men, not even for women.

Today 12% of the people who are involved in criminal trials are in jail waiting for their hearings. They are called under trial prisoners and constitute those involved in crimes of serious offence such as murder, kidnapping for ransom, or gang-rape case and have been denied bail.

How many judges do you think are needed to ease the current caseload?

In America and Canada there are between 100 and 110 judges per million people. In Pakistan and India we have 10 judges for that same number of people. That alone is such a colossal difference. Forget about the competency of the judges, even if there are 100 Iftikhar Chaudhrys on these cases, there still won’t be justice.

Do you think there are alternate means of settling these cases out of court — other systems that could be implemented in Pakistan?

In New York they have night courts but that won’t be acceptable in our culture. Also, in England, they have adopted a method in which, before going to court , a barrister or solicitor writes to the other party and inquires if they are willing to mediate and then if the other party is willing, they try to settle it out of court. You can even call in a senior barrister or a retired judge and have him mediate cases out of court, or at least suggest how the case can be handled. His decision isn’t binding, but both parties can get an idea of what kind of a decision the court might present. These are methods of settling a dispute outside of the judicial system.

Do you think lawyers are to blame for frivolous litigation they often engage in?

In the lower courts lawyers can charge 100 rupees for each hearing in a case. So the longer a case goes on the more money they earn from it. But the lawyers do not represent a privileged community — they represent the state of society. If there’s an overall degradation of values, then it will obviously impact lawyers as well.

The judge has the power to penalise those involved in filing frivolous litigation. Doesn’t that put the judges at fault too?

A judge can write to the Bar Council for misconduct. But that doesn’t happen because even over there, lawyers are present. So why would a lawyer disqualify one of his own? You will not find a single case where a lawyer has disqualified another lawyer.

What about the ever-increasing ‘judicial activism’ manifest in strikes, demonstrations and protest marches?

I believe these strikes should not happen. My view is that if they feel they have a good reason to call a strike then they should do so for an hour at most, or after 1.00 pm when the courts close.

[These strikes and court shutdowns] cause clients a lot of problems.

Do you think the implementation of the National Judicial Policy has proved helpful?

It can’t work without the government’s commitment. Unless the government gives you support, nothing can work.

This interview was published as part of a cover story on the judiciary in the October issue.