More judges will not solve the pendency problem
While hearing a case, the Chief Justice of Pakistan, Justice Asif Saeed Khosa remarked that delays in litigation was on account of shortage of judges. He lamented that 210 million population is being served by just 3000 judges. He further deplored the non-filling of vacancies in the judiciary, and declared that “not the judiciary, but someone else”, is responsible for the pending backlog of 1. 9 million cases in the country.
Justice Khosa is known for superb handling of court proceedings and prompt disposal of cases. Always well-prepared and vigilant, the facts/issues involved in the lis are at his fingertips, and he would not entertain any unreasonable plea or pretext from a lawyer or party to procrastinate the proceedings. He does not oblige the counsel to get undue adjournments or waste the court time by making irrelevant arguments. Skilled in court/case management and adept in the art of judging, he has set high records of case disposal. This however cannot be said for all judges.
It is time serious attention is paid to devising long and short-term plans for judicial reform, so as to have an effective and efficient judicial system, which can meet the challenges of modern times and emerging realities. To start with, perhaps, the National Judicial Policy can be dusted off and put to use
In the absence of a judicial policy for quick disposal, judges, in individual capacity or by sitting on a bench, devise their own strategies to abort delaying tactics, employed by the unscrupulous elements, be it party or counsel. However, such strategies work in the superior courts on account of their status and power. This is not possible for judges of subordinate courts, who handle 80 percent of the litigation in the country. Not being fully trained and lacking institutional backing, they are at the mercy of the bar. There is no way they can stand up to the pressure of the bar members, as demonstrated time and again in the transfer or reshuffling of independent-minded judges, who dared to refuse to accommodate them. Again, faced with long cause lists, in the given timeframe, they could merely call cases to mark the attendance of parties and counsel and give fresh dates. Operating under stress and work pressure, they cannot properly manage the court proceedings. Consequently, the hearings linger on, not for years but decades, at the trial stage, with a similar time span consumed at the appellate stage in the High Court and the Supreme Court.
As regards clearing backlogs at the level of superior courts, a great deal depends on the incumbent chief justice. There are examples of some chief justices, excelling others. Two names come to mind: first, Chief Justice Afzal Zullah, who within a couple of years of taking over, brought down the pendency in the Supreme Court to under-2000 cases, thereby enabling the Court to dispose of cases in one year’s time. He then embarked on taking suo moto actions in matters of public interest litigation and giving succor and relief to the poor, disadvantaged and vulnerable sections of society. The second example is of Chief Justice Iftikhar Chaudhry, who in a time span of a year and half (September 2005 till February 2007) slashed by half the pendency of 20,000 cases. The plan was to further reduce it to under 2000, thereby making it possible for the Court to decide every case in one year’s time. But this was not to be, for judicial crisis ensued, which interrupted the plan.
Both the chief justices did so within the existing strength through devising plans and strategies by fixing targets for disposal and striving to achieve it. It entailed inter alia monitoring performance. Besides late sittings, Chief Justice Iftikhar further used to take his brother judges into confidence to reduce vacations. Cases involving common points of law or facts were clubbed together and decided through a single order. Further, cases were categorized and placed before judges, having expertise in the subject. Thus, through simple techniques, big strides were made and results achieved.
By contrast, during the era of Justice Dogar, the pendency jumped to 22,000 figure within a similar span, one and half year (November 2007 till March 2009), even though the strength of judges had been increased from 16 to 29. In 2008, considerable increase (ranging from 50 to 100 percent) was effected in the strength of judges of high courts, together with the establishment of the Islamabad High Court. Their strength stands at 60 in the Lahore High Court, 40 in the High Court of Sindh, 20 in the Peshawar High Court, 11 in the High Court of Balochistan and 7 in the Islamabad High Court. Similarly, during the last decade or so, there has been enormous increase in the strength of judges and infrastructure facilities of subordinate courts. Alas, a corresponding increase in disposal rate is not visible, and pendency is gradually rising at almost every level of the judicial hierarchy. Therefore, with deep respect to the observations of the Honourable Chief Justice of Pakistan, mere increase in strength is not the solution. As regards, non-filling of vacancies, it is an internal matter; as such responsibility vests in the judiciary. Judges of superior courts are appointed soon after the recommendation of Judicial Commission of Pakistan, whereas the respective high court conducts tests and makes appointments to the district judiciary.
Having strived for and attained the hard-earned independence, the Third Pillar of the State need not look around for outside assistance. It should stand on its own and put its house in order and feel responsible and accountable for lapses, deficiencies and shortcomings in the system. The system is failing to deliver and losing much-needed public trust. The 21st Amendment was a vote of no-confidence in the justice sector, and a clarion call for it to wake up and reform itself. What is urgently required is structural changes in the jurisdiction of courts, removing the multiple layers of appeals, revisions and reviews, together with reform of the procedure. It is a complex issue and long term plan, and requires intra-/inter-institutional consultations within the justice sector, input from the bar and related agencies like prosecution and investigation. It will further require support from the executive and legislature. The exercise can be undertaken under the auspices of a statutory body, the National Judicial (Policy-Making) Committee (NJPMC). In the short term, laws and procedures should be enforced by imposing costs on fake or frivolous cases and denying adjournments. The district judiciary should be backed in its efforts to have proper court and case management. Hooliganism should be controlled and the bar members disciplined.
Meanwhile, there is a dire need for devising a plan and strategy for expeditious disposal of cases to punish the offenders and grant prompt relief and justice. The starting point is to revive and re-launch the National Judicial Policy (2009). The Policy was prepared, in consultation with the stakeholders, that is, the members of the bench and bar and State attorneys and prosecutors. It was regularly reviewed and reformed through annual conferences, attended by all stakeholders, wherein problems and issues were discussed and resolved through suitable changes or amendments in the Policy. Besides setting targets for disposal, monitoring mechanism was established through the NJPMC to ensure compliance. The superior courts, for variety of reasons, could not meet the targets but the subordinate courts did. The Policy did miracles: The subordinate judiciary performed well and decided tens of thousands of cases. Thus, within a short span of two years, that is, by early 2012, in Balochistan, the trial time in subordinate courts was reduced to a year, and in the High Court less than a year. This is ideal. Deciding a civil suit or criminal case in one year’s time, is an international standard, maintained by efficient judicial systems in advanced countries. In the KP, the time required for disposal was brought down to a year and half in the subordinate courts, and efforts were underway to further bring it down to one year. In Punjab and Sindh, considerable progress was made, backlogs reduced and cause lists drastically cut down.
Alas, the momentum was not maintained. On the retirement of Chief Justice Iftikhar, his successors lost interest and the National Judicial Policy was discarded. No substitute plan or policy was devised. Consequently, the pendency figures kept crawling up and are further rising! The backlog of cases in the Supreme Court has risen to a record level of 38,000-plus. The situation is worse in high courts and alarming in subordinate courts. It is time serious attention is paid to devising long and short-term plans for judicial reform, so as to have an effective and efficient judicial system, which can meet the challenges of modern times and emerging realities. To start with, perhaps, the National Judicial Policy can be dusted off and put to use.