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Judicial Delay, Intervention, and Legislature

by Malik Altaf Javaid

 

Ever since March 2007, when former Chief Justice Iftikhar Chaudhry refused to become a party to former President Pervez Musharraf’s desire for a second term, Pakistan has been abuzz with judicial intervention, activism and judicial delay that has all led to unusual pendency. A vast majority of people consider this activism and/or the judicial intervention as the real cause for some 1.9 Million cases pending across Pakistan. Since some people believe that only the Chief Justice of Pakistan has the power to exercise suo motu powers; therefore, the rest of the 3,999 judges working across Pakistan are available for expeditious disposal of the cases, which is not being done.

Some maintain that it’s the poor legal education system, the nursery of the legal system, which is not producing the required quality. Hence, there is a judicial delay. Some lament the outdated law, while others hold that judicial policies mutilate the law and this apparent clash leads to judicial delay. As maintained by one faction, there is a sheer disparity in the growth of the judicial system and the population of Pakistan, resulting in judicial delays. They believe that in 1973 the population of Pakistan was around 65 million which has now grown to 212 million with the number of Supreme Court Judges remaining constant at 17. One also cannot discount the approach of the executive: using judicial delays as a tool to lambast the judiciary.

Judicial delays have never been a serious concern of the executive and/or the legislature. However, in order to completely shift the burden on the judiciary, the executive maintains it is the judicial intervention which is the root cause for the pending 1.9 million cases, conveniently ignoring the fact that the number of judges in the superior judiciary is to be increased by the legislature. The judicial organ is to be funded by the executive and lands for establishments of new courts. As such one could safely maintain that the rhetoric of the executive could, at best, be termed as political point scoring or political jugglery.

Almost daily, one finds legislators complaining about the judicial interventions as well as massive delays, realizing little that even the Pakistan Muslim League Nawaz (PLM-N) Government, having a 2/3rd majority, never did anything to find legal ways to stop, manage or curb the judicial intervention. There has never been any meaningful debate in order to cure the menace of judicial intervention. The apparent helplessness of the legislature raises serious questions about their wisdom and their seriousness to find a panacea for judicial intervention, which per legislature is not only causing judicial delays but has also crippled the government.

Judicial intervention apparently flows from the principle of trichotomy of powers and the powers given by the Constitution, a document framed by the legislature with no intervention of the judicial organ. Then why lament the judicial intervention or apparent over-reach? It took days to annul the powers of the President under Article 58(2) (b) of the Constitution of Pakistan 1973, while even after decades nothing has been done on other issues. The legislature has never seriously mulled to introduce reforms in the Code of Criminal Procedure (CrPC) 1898 or to change the Code of Civil Procedure (CPC) 1908, which are allegedly outdated laws. The legislative history is also silent about the increase in the number of judges. The committees of the legislature have never devised to have a dialogue with the judiciary to curb the issue of chronic judicial delays.

The legislature, prima facie, does not consider expeditious justice a fundamental right of the masses. The legislature holds itself high and proudly maintains “the judiciary is independent” to get itself absolved from everything. In this backdrop, if we examine the elimination of Article 58(2) (b), introduced through the 8th Amendment, one could safely maintain it was meant to protect the personal interests and never the democracy. The unholy unanimity of the legislature is a self-explanatory proof of the fact. The premature dissolution of the assemblies was causing serious trouble for the legislators to present themselves for re-election; as such the best option was to delete the powers from the statute book. Shockingly, the legislators who never uttered a word in the sessions for the populace voted in favor of the amendment. Needless to say that all this was motivated by political interests.

The procedural law, i.e. CrPC and CPC, are unchanged. The legislature, in particular, without examining its contents, has relegated these as “outdated laws”. However, in reality, these are the same laws under which the cases were decided expeditiously and there were no complaints of judicial delay. Even today there are hardly any complaints on the efficacy of these two laws, the only issue is with regard to their dates of birth. The efficacy of the procedural laws has been undermined by the judicial policies, manifest of individual wisdom.

To quote an example, item 10 of the Chapter Expeditious Disposal of the Case of National Judicial Policy 2009 provides that cases involving punishment of seven years or more shall be tried within one year. Whereas the law provides the challan (police report) shall be submitted in 14 days with an allowance of 3 days. The magistrate, after collecting the entire record if opines that the case is made out, shall commit it for trial and shall supply copies of the relevant document to the accused seven days prior to trial (Section 265 (C ) & (D) of the CRPC). The concerned court shall reexamine the same and if decides to try the accused, the charge shall be framed, followed by the recording of statement of witnesses and the judgment. The judicial policy has however created room to prolong the trial for one year which otherwise could have been done in a month. The efficacy of the law could be appreciated from the fact that military courts also use the CRPC for trial and there is no other special law.

To quote another example, while striking out the military courts established in 1997, the Supreme Court observed that if similar facilities of submission of challan and attendance of witnesses are provided to ordinary courts, the cases could be decided just as expeditiously. As such, there is no strength in the claim that the procedural laws i.e. the CRPC and the CPC, are either outdated or ineffective. The laws implemented by Lord Michalay are as effective as they were some hundred years ago. The change; however, is in the social fabric. The poor legal education system, apparent disparity between the growth of population and judicial system, control over the resources, political might, personal vendettas, bribery, and corruption are a few of the many elements which are prominent in this change.

The issue of population is perhaps the mother of all other issues. Let’s explain the judicial delay in the backdrop of a growing population. The District & Sessions Court Malir, Karachi, was established in September 1994 with five courts. After 25 years, it now has 23 courts. During these two and a half decades, its population has grown ten times. It would be useful to point out here that the apparent increase in the number of courts is due to the addition of civil judges/magistrates which have been increased from 4 to 13, whereas it only has five additional district and sessions judges and four civil judges. This took a period of 25 years. One would be justified to question the efficiency of Ministries of Law, Justice and Parliamentary Affairs.

Likewise, a Circuit Bench of Sindh High Court is working in Hyderabad. It caters to an area of around 77,029 square kilometers, serving a population of 15,538,056. One judge serves an area in excess of 15,000 square kilometers and a population of over 31 million. It would be necessary to mention here that as per Article 193 of the Constitution of Pakistan 1973, the number of judges would be determined by law, and the law-making powers solely vests in the legislature, and the judiciary has no say. Then who is to blame? No matter how efficient the judges might be, the backlog of 1.9 million is too much for 4,000 judges working across Pakistan, as pointed out by the Chief Justice of Pakistan.

The Supreme Court of Pakistan has a sanctioned strength of 17 judges, who are to take care of the legal issues of a population of more than 207 million, as well as the issues of the government and other litigations arising from suo motu and the human rights jurisdiction. It is worth noting the fact that the superior judiciary is working with the same strength as sanctioned in 1973, while the population has increased at a much more accelerated rate. In more than three decades, this issue has never been addressed by the Parliament. The executive has never taken into consideration the impact of the population hike and the number of judges. History shows that the executive has always avoided spending on the judicial organ.

The megalopolis Karachi, with a population of around 22 million, has 249 judges working in the district judiciary. While 217 judges are working in district judiciary at Lahore, serving a population of around 12 million. The number of constituencies of the national assembly and provincial assemblies has been subjected to change based on the population. However, an increase in the number of judges never found any attention of the legislature. Likewise, the budgetary allocation is in the hands of the legislature. The forum is with the legislature. The judiciary can advise, not compel. The increased number of judges can, definitely, enhance the health of the judicial system and the key to this solution is with the executive and legislature.

One could safely maintain that after population, unregulated legal education is responsible for the judicial delay. Lawyers are the lynchpin of the entire judicial system. The merit for admission to law schools and universities is lowest amongst other faculties, whereas it is the highest in the developed world. Unregulated law schools which offer a degree without attendance are abundant in Pakistan. The law schools are mass producing lawyers, without any practical knowledge or experience which ultimately shows in their performance. The judges, prosecutors, attorneys, NAB prosecutors, Advocate Generals, and Attorney Generals are appointed from these mass-produced lawyers. Saqib Nisar, Chief Justice of Pakistan, took an action against these law schools, which was widely applauded by the bar councils. However, it was a judicial intervention for the executive.

Coming to judicial intervention, apparently, it is condemned on two counts, viz., it causes judicial delays since the judiciary is not able to focus on the proceedings of the case and rather focuses on proceedings with governmental functions. Secondly, it causes administrative delays. The executive holds that it is nothing short of misfortune to the state that at times the judiciary has been found involved in making efforts to run PIA, steel mills, hospitals, and schools, instead of proceeding with the pending cases.

The judiciary claims to be endeavoring for the enforcement of fundamental rights through the constitutional jurisdiction. The legislature believes that Article 184(3)’s excessive use has rendered it as a tool for intervention in judicial functions and a cause for judicial delays. The opposite argument is, Article 184(3) is a panacea to administrative lack of interest in administrative functions and provides with a check on the legality of administrative functions. The people of Pakistan should not be at the mercy of the legislature, aware of its basic responsibilities. By now, the general public shows a lukewarm response in challenging the legality of administrative functions. If someone challenges the legality of administrative function, they are often termed a “blackmailer” or a person acting for their vested interest. Therefore, the general public, unless they have some compelling reasons coupled with their private interest, generally do not question the legality of administrative action.

The Constitution of Pakistan 1973 was framed in the leadership of Mr. Bhutto when there were no other noticeable political parties. Therefore, the framers of the Constitution would have been very mindful at the time of framing Article 184(3) whereby they allowed the judicial organ to take certain actions. What prompted Mr. Bhutto to confer such, apparently dangerous, power on the judicial organ? Was it a result of farsightedness? Was he trying to strike out a balance? Was he looking to pollute the executive authority? Was he aware that he would be succeeded by the inefficient? Were the framers of the Constitution intending to permanently create a parallel government? Was he intending to create a situation of judicial and administrative delays?

It must have been the result of farsightedness and to provide a strong check on the executive actions. One must keep in mind that in the yesteryears, every executive has demanded complete immunity to his actions, irrespective of its results and impact on the society. Therefore, one could safely lean in favor of the fact that the power was granted to strike out a balance and was never meant for judicial and administrative delays.

Now, what if this power, which was meant to create a balance, causes imbalance? Once again, it is with the legislature to consider. Eighteen amendments have been made in the constitution, including the one whereby the unbridled power of president to dissolve the national assembly has been taken away. Then why is the legislature observing silence? Why is the legislature not mulling to amend this power? Perhaps, the legislature is aware of its shortcomings and poor efficiency.

What prompted the legislature to unite against Article 58(2)(b)? Why are they not uniting on these issues which, according to them, are a bottleneck? The legislature, most likely, is lacking the legislative wisdom which the framers of the constitution had. What has precluded the legislature to determine the extent of suo motu action? Again, the answer would be the lack of legislative wisdom.

One could argue that good performance could also render Article 184(3) useless and perhaps, except amendment, it is the panacea to avoid the sou motu actions. A transparent and meaningful performance is the only thing which would render Article 184(3) ineffective, despite its availability in the Constitution. The legislature has the option of amending Article 184(3), but that would give the executive absolute power.

One could also argue and maintain that 3,999 judges do not enjoy the power of sou motu. Therefore, the argument of judicial intervention causing judicial delays, by large, is an irrational argument. Increase in the number of judges, improved quality of lawyers, meaningful education, a collective approach, precedence of collective wisdom over individual wisdom and a wise legislative approach could improve the health of the judicial system and the menace of judicial delays plaguing the public could be eliminated.

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Malik Altaf Javaid is a practicing advocate at Sindh High Court, Karachi.