Justice is being denied due to inordinate delays and expense. Courts are faced with an unprecedented backlog of cases running into hundreds of thousands pending in different courts. Courts, lawyers and litigants are not empathetic to this delay. Usually, a criminal case takes about 5 to 10 years to go through all steps of trial, appeals, revisions and reviews till it attains finality. An ordinary civil suit takes about 20 years or a generation, so to speak, to reach its final conclusion. Instances of further abuse of process are not wanting. Cause lists of civil judges/magistrates, on average, have 30-50 cases. A Sessions/District Court is not far behind in number of cases daily fixed before it. The cause list of a High Court judge runs into dozens of cases on any working day. A Bench of Supreme Court deals with about 20 cases in a day. These numbers are indeed mind blowing. Annual Supreme Court Reports show increase of pendency year by year. International reports and studies about our legal and judicial system are tremendously discouraging. There is another side of the coin too. Owing to the trouble, stress, pain, expense and time involved in the process of obtaining justice, many people would simply let the wrong go unpunished. What a pity!
The expense on justice, excluding salaries and pensions of judges, magistrates and Courts' staff, maintenance of buildings and offices and security, incurred by the consumers of justice runs into hundreds of billions of rupees. A huge amount of human resource, in term of working hours that in any other country could be contributed towards GDP is wasted due to the delays and adjournments.
A talented Chief Justice, with an impeccable educational, professional and judicial career, pricked by his conscience is constrained to talk about matters of delays and burgeoning pendency in his speeches. It would be none of the concerns of a Chief Justice in the civilized world for the primary duty of such delays is cast upon the Executive. He appreciates that he may not be a contributory to this collective injustice and failure as he did his part meticulously during last many years but since it is an institutional debt, he has thus sincerely endeavored to pay it off by finding out workable solutions to the problem by making new experiments and utilizing new tools. It is indeed the Executive's lob to fix this great problem.
Efficiency in the judicial system could be brought through different means including the use of information technology (IT), appointment of sufficient number of judges and on merit, recruiting more law clerks for Supreme Court and High Court judges, by discouraging false, frivolous and habitual litigation and by imposing heavy costs. In this age of IT, databases can be built and analyzed to find out precise causes of increasing disputes and crimes and consequent litigations. Law and Justice Commission can undertake this task after it is strengthened and equipped.
Preamble to the Constitution promises social, political and economic justice. Justice does not mean justice dispensed by the courts only. Executive(s) are the largest litigants in courts. If Governments do justice at their level, the burden in Courts will certainly decrease. If causes of litigation are arrested at different levels, the filing of cases would naturally slow down and disposal will increase.
There are cultural and institutional reasons for excessive litigation. People in this region, by and large, are economical with truth, extravagant in cheating and excessive in dishonest conduct. Due to social imbalances and disparities, people have been intolerant too. Loan defaults, breach of contracts, theft, breach of trust and abuse of public offices are those wrongs or offences, which are common in our society. Again, the data needs to be collected and analyzed and accordingly, a well thought out plan to address this problem should be put in place. Courts at all levels should be integrated and data should be regularly fed and analyzed. It will provide sufficient information to make proper policy decisions. Institutional causes include, the failure of the government machinery and lack of coordination amongst the departments. Recent controversy after a considered (judicial) policy decision in regard to sections 22 A& 22 B Cr.PC and agitation by lawyers is a further proof of the rot in the system. It requires an immediate treatment of the terminal illness. The Bar and the Bench are two necessary parts of justice system and their coordination without undermining their assigned roles and independence is required for proper functioning of the system. An independent bar, like independent judiciary, is a guarantee to our liberties too. It is the Executive's job to register and prosecute crimes. A mandamus to the Executive is actually an admission of its failure. A solution is ordinarily found where the problem exists. Legislative and Executive business of the Government properly conducted, will hugely decrease the judicial business and burden.
Judiciary is part of the problem too. Executive discretion is structured and tests are laid down or its exercise but so far, there is no test for judicial discretion in matters of exercise of jurisdiction. In recent years, the Supreme Court has excessively invoked its original jurisdiction and that too through the suo motus. This exercise has eroded High Court's constitutional jurisdiction. It has heavily taxed Supreme Court's precious time. Invariably, a petition on original side involves several steps. There is an office objection against which an appeal lies in chamber. Ultimately, the matter is heard in Court. All steps and measures counted and jurisdiction exercised, analysis would show, whole exercise during last many years has proved counter-productive. No social, political and economic betterment in our lots after so many years and despite hundreds of notices. From 1973 to 1988, there are only 3 cases of exercise of original jurisdiction under Article 184(3). After 1993, Mian Nawaz Sharif's case directly filed and decided in the Supreme Court, there was no stopping. What goes around comes around. High Courts too have almost forgotten about the alternative remedies. The distinction between an appeal and judicial review is obliterated.
The federal and provincial governments should introduce legal and judicial reforms. Federal government cannot ask for a better team. The Law Minister and the Attorney-General are capable men. Despite several claims by the Governments, hitherto, nothing has been achieved. It is partly because they don't have sufficient numbers in the Senate. But everything requires money and nowadays, nation is hard on cash. With the available resources, however, and a determined and motivated leadership, a lot can be achieved. Late Ahmed Fraz said 'it was much better if one had lighted a mere candle oneself instead of complaining about the darkness of light'.
(The writer is an Advocate of Supreme Court of Pakistan and a former Additional Attorney-General for Pakistan)