There is broad consensus on two things. One, our justice system is broken and anyone wronged by state or society and thus forced to interface with it feels further alienated due to justice either being delayed or denied. And two, a polity with a dysfunctional dispute resolution system is not sustainable. In a state that can’t even structure a system that at least pretends to uphold the legal equality of citizens, everyone will seek power for self-protection. Such a system is the antithesis of rule of law.
Coming up with sensible ideas for reform is no rocket science. Problems that are either structural or managerial can be fixed with common sense solutions. The real challenge is inspiring behavioural change amongst dispensers of services and the power elites. Those of us (lawyers, judges etc) associated with the justice system as intermediaries have become used to a rotten state of affairs. Just as little children begging at traffic lights doesn’t prick our conscience anymore, ordinary people being tormented by the justice system doesn’t keep us up at night.
And there are vested interests that benefit from the rot. The provision of a level-playing field to all citizens offers a means to even out the advantage elites have by virtue of social, political and economic inequalities in society. Where there is no neutralising mechanism, whoever has power or money can use it to accumulate more of it. This helps increase the chasm between haves and have-nots. And it further angers have-nots who feel locked up in a system that affords no means for upward mobility or to break free from servitude.
So why should the power elites support enforcement of fair rules when they are beneficiaries of the present tailored system of justice? They should do so in their medium-term self-interest. Inequality, injustice and a huge uneducated population together form a combustive mix. Ordinary folks won’t continue to suffer modern slavery happily while watching some grow fatter. People in this country hate the moneyed not because they hate money but because they believe money can only be accumulated through a process of abuse of power.
Let’s forget that fixing the justice system is the right thing to do. The haves and elites need to understand that without functional and effective rule of law, they might not be able to preserve and protect what they already have. Transforming behaviours, mindsets and one’s way of doing business is never easy or pleasant. But there is no alternative. A dysfunctional justice system is the root cause of a lot that is wrong in this state and society. To survive and persevere, we need a system of adjudicating disputes that is fair and efficient.
Let’s get back to common-sense solutions. We can understand the realm of reform by imagining three circles. The core inner circle is the court system. This sits within a larger circle that is the justice system, of which courts are just one part – the other components being police, investigators, lawyers, prisons and alternative dispute resolution systems. This second circle is part of an even larger circle that can be called our system of governance whose malfunctioning results in dispute production.
In terms of priority, let us start with the core and then move outward. There are two ways of addressing pendency of cases. One, decrease the number of cases that flow into the court system and clog it; and two, apply structural and managerial solutions to make the adjudication of cases that do flow in more efficiently. We can decrease the amount of litigation even without focusing on the outermost circle – the governance system on the whole. A quick review of laws that produce needless legislation would help.
A couple of years back, Ashtar Ausaf Ali (the present attorney general) asked a group of lawyers standing around waiting for their turns outside the Islamabad High Court why we needed to go to court for issuance of succession certificates when someone died. Couldn’t Nadra, which maintains family records, issue a certificate confirming successors of the deceased? And in cases where there was a dispute regarding distribution of movable assets of a deceased the affected party could go to court. Why can we not implement this simple idea?
We continue to work with a system of executing judgements that is archaic and tilted in favour of those interested in delaying implementation. It can take years to get final orders implemented, something that defies logic. We spend an awful lot of time arguing about which court ought to decide a matter and the first round of litigation often turns out to be about determining maintainability of petitions. Why can’t we come up with a standardised three-tier adjudication system (trial, appeal and final appeal) for all areas of law, and reduce useless litigation?
We have bad laws that encourage people to be dishonest. Our rent laws, for example, entice tenants to renege on solemn promises and retain occupation of rented premises while cases for eviction drag on for years. The lack of proper land ownership and title system produces land mafias and a lot of unwarranted litigation. With the digitisation of land records, we can tweak laws and pre-empt and scuttle many land disputes. Can’t we introduce simple structural and procedural changes to reduce dishonest litigation?
Why do we still lack methodical court and case management systems? In this age of specialisation, why is every court doing almost everything at the same time? Will a judge be more focused and efficient if he hears a bail application, followed by a land dispute, followed by a breach of contract claim etc or if he hears cases grouped together that involve the same law and similar subject matter?
If you have 100 cases to decide, does it make any sense to start hearing them all at the same time? Why do trials stretch over years? Once the pleadings of parties have been filed, why shouldn’t a trial be scheduled and concluded in consecutive court sessions?
The Islamabad High Court has published amendments to Order 9A of our Civil Procedure Code (conceived largely by Kamran Basharat Mufti, a young and brilliant sessions judge in Islamabad) to introduce efficiency and give courts more managerial control over various stages of litigation? Why not debate the proposed changes and apply them across Pakistan if they make sense?
Why should cases be fixed for hearing before a court if pleadings aren’t complete or if lawyers have filed adjournment requests? Why can’t cases that aren’t going to proceed for one reason or another be screened administratively instead of the judge calling them out only to pass adjournment orders, which are then typed, rechecked and signed? All this consumes time and saps the energy of judges, court staff, lawyers and litigants. This time can be freed up for actual adjudication.
Why has no one focused on training as an integral part of the career planning and advancement of judges (as it is in the military), or transformed judicial academies into centres of skill enhancement? Without a fair and transparent performance evaluation system, how will we hold judges to account or require them to improve themselves? What happened to the legislation introduced by our law minister to regulate adjournments? Why do we still not have laws that discourage and penalise frivolous litigation?
The chief justice and senior puisne judge in the Supreme Court are recognised amongst the smartest civil and criminal law experts around. The chief justice of the Lahore High Court has committed a major part of his judicial career to reform. The chief justice of the Peshawar High Court is focused on taking arbitrary discretion away from management of district courts. Our law minister and attorney general seem earnest about reform. With Senator Raza Rabbani as chair, the Senate has produced a comprehensive report on judicial reform. Wouldn’t it be a shame if, despite these gentlemen being in key positions, we are still unable to move the needle?.