Some months ago, Chief Justice Anwar Zaheer Jamali declared that there is no deficiency with the existing judicial system, ‘which is very well-tested’. According to him, certain ‘external factors’ were responsible for delays in the system. However, the family of Ghulam Sarwar and Ghulam Qadir may have a different take on the judicial system. Both brothers were executed by prison authorities a year before the Supreme Court eventually pronounced them innocent. Mohammad Anar and Mazhar Farooq, having been tested by this ‘well-tested’ system, are just as unlikely to share the CJ’s sanguinity. They were recently acquitted by the apex court after having endured 24 and 11 years in prison respectively. Unlike the CJ, they might not know that Article 10-A of the Constitution guarantees them a “fair trial and due process” while Article 37 promises them “inexpensive and expeditious justice”.
It takes between 20 to 30 years to eventually resolve any moderately complex civil suit through the litigation system after exhausting numerous rounds of appeals, revisions and remands. Criminal cases may take marginally less time to finally resolve. These are not headline-worthy aberrations, this is the norm. If one even puts aside the injustice on litigants wreaked through these delays, the impact is greatly detrimental to the law-abiding fabric of society. Individuals are able to peacefully co-exist in civilised societies through the mutual observance of certain agreed upon rules. They are motivated to observe and internalise those rules when punishment for transgressions are swift and certain. When this assurance is lost, when punishments are uncertain and long-delayed, or when the innocent are punished as frequently as the guilty, the entire fabric underpinning civilisation and the rule of law unravels. The failure to provide such assurance explains the unrest and anarchy prevailing in the very segment of society.
Delays in the judicial system are not due to any ‘external factors’ but are endemic; pointing fingers at ‘external factors’ is nothing more than blame-shifting. The most glaring causes include outmoded court procedures and inefficient case management techniques. Then, with a culture — among judges, lawyers, prosecutors and the police — that is lackadaisical about procedural rules and timelines, further delays become inevitable. To add, inadequate physical and human infrastructure is unable to keep up with the growing population and litigation demands. These causes can be addressed by a resolute judiciary, but that does not factor in the obdurate refusal of the legal community to recognise systemic flaws in the system.
Archaic court procedures
The criminal procedure code is 118-years old while the civil procedure code is 108-years old. While our court/case management rules vary from province to province, they are generally about 70 to 80 years old. A product of the British Raj, the nature of criminal and criminal disputes was altogether different and the resources and technologies available to courts, lawyers and the litigant public were incomparable. They are overly technical, allow for endless rounds of appeals, reviews and revisions, and generally tilt towards sacrificing efficiency at the altar of thoroughness. It makes sense to introduce greater efficiency and update these rules in keeping with current realities and new developments in global practices.
Reforming judicial functions
Then, there is the argument that there is no point in reforming or disciplining courts unless other actors in the judicial system — lawyers, state counsels and prosecutors, and police investigations — are simultaneously reformed. Given that none have shown great inclination towards self-discipline, it is pointless trying to effect judicial reform in isolation. Judges drive and control the judicial process while other actors follow their lead, at times reluctantly and begrudgingly — in the case of the bar, they may even show their pique through strikes. Ultimately, if these participants want to obtain their desired objectives then they must follow the judicial lead.
The SC has brooked no interference from any quarter in any matter relating to performance. Long ago, it wrested away — from the government — all powers to appoint judges. When parliament asserted its right to scrutinise judicial appointments, the SC forced parliament to amend the Constitution rendering the parliamentary committee toothless. The Supreme Court refused to allow its accounts to be audited by the public accounts committee and refused to allow its registrar to appear before the committee. When it felt that judges and their staff were underpaid, it issued a judicial policy, which gave them a three-fold enhancement and directly or indirectly compelled various federal and provincial governments to approve such enhancements. It is neither a coincidence nor an inflation-related phenomenon that the monthly remuneration of superior court judges has, in the past 20-years, crept up from around Rs 35,000 to more than Rs1,000,000.
If the SC was serious about enhancing the infrastructure of all courts, what government could really stop it? The truth is that our Supreme Court is not serious about reforming the court system. It will happily initiate suo moto inquiries and pass directives for reforming provincial policing systems, land revenue record-keeping, appointments, promotions and transfers in the civil service generally — but not for reforming the judicial system itself. It will devote the full-time services of a SC judge to various inquiry commissions ranging from electoral malpractices or even into the purchase of a couple of London flats — but the only half-hearted attempt at court system reform in recent years (by way of the Judicial Policy, 2009) merited nothing more than the part-time attention of the SC’s registrar.
Any meaningful exercise towards judicial reform and minimisation of court delays would require, at very least, the full-time devotion of a SC judge and at least two high court judges (each specialising in criminal and civil law respectively) to a time-bound commission tasked with the identification of causes of and reforms for judicial delay. Naturally, the identification of delays must rest on meaningful and empirical data collected by the commission rather than assumptions and anecdotal accounts. Moreover, the commission should include or at least solicit the views of other participants in the system including lawyers, prosecutors, police and government. Most importantly, it must attempt to survey the views of the actual users/sufferers of the system — the litigants, complainants, witnesses and the accused. A chief justice able to effect such reform successfully would secure a legacy far more enduring than that secured through any judgments — no matter how bold or far-reaching. Physician, heal thyself.
(The writer can be reached at email@example.com)