Pakistan ranks 120th out of 128 countries in the World Justice Project Rule of Law Index 2020 with a score of 0.39 out of 1 – suggesting inefficacy of its judicial system.
The courts of the judiciary, from lower and high courts to the Supreme Court, are responsible for upholding the rule of law in society. In addition to lack of resources, Pakistan’s courts face internal incompetency and external interference that cause dysfunction in the judicial system. Essentially, corruption and undue interference of the military and executive in judicial matters compromise the judiciary’s independence, which is proffered by The Constitution of Pakistan.
The inefficacy of Pakistan’s judicial system is reflected in the considerable delays that accompany legal proceedings. According to the annual report (2018-19) of the Supreme Court, more cases are instituted than disposed of every year, gradually increasing the total caseload with time.
The considerable backlog of unattended cases in Pakistan causes further hindrance to the reformation of the court system. The solution demands reforms and structural changes in the judicial system that not only dispose of the backlog, but also enable brisk and smooth functioning of the courts.
Pakistan can overcome the problem of delays in legal proceedings, thereby ensuring fairer provision of justice to the people, through the empowerment of courts of first instance, active case management, and reforms in legal and institutional structures.
Empowering courts of first instance
The excessive burden of caseload overwhelms not only the district courts of Pakistan, but also the high courts and the Supreme Court. For example, in 2018, 22942 cases were filed in the Supreme Court of Pakistan. In contrast, the United States Supreme Court receives, on average, 7000 to 8000 applications every year, out of which it hears about 150 only.
Femi Ogunlende, a barrister based in Islamabad, gives two reasons for this vast difference in the number of cases. First, the US Supreme Court has the complete assistance of the lower courts or courts of first instance, where appeals are first heard. These lower courts function actively and properly, judicially speaking. Second, owing to the work of the lower courts, the US Supreme Court involves itself only when there is “an issue of general public importance.”
To improve its judicial system, and address the issue of prolonged legal proceedings, Pakistan should create a reformation program that is dedicated to empowering the courts of first instance, in terms of resources and training.
Active case management
Given Pakistan’s economic condition, widescale investment in resources and infrastructure of courts all over the country might be difficult at first. There is no reason, however, to refrain from taking small steps, as long as the process of reformation is initiated.
Small changes like “awarding costs to frivolous litigants, adjournment only in exceptional circumstances, appeal by leave of court only” are meant to introduce efficiency in the everyday management of legal proceedings. Improving the management approaches that govern the courts is a cost-effective step to judicial reforms.
When the United Kingdom encountered backlogs in the 1990s, they brought reform by introducing “new litigation rules” in their courts to spur “active case management”. Despite its economic state of affairs, Pakistan should improve case management in courts, as it did in Peshawar High Court in 2018 (Ogunlende, 2019a).
The attempt can not only help in handling the caseload that suffocates Pakistan’s judicial system, but also enhance the quality of the court system overall, in terms of fairer execution and provision of justice.
Recruiting and training of judges
To manage and execute everyday judicial matters, there should be adequate judges available, especially in the courts of first instance, to hear and process appeals. There are roughly 4000 judges in Pakistan who serve more than 200 million people. In contrast, England and Wales have about 3000 judges serving a population of around 56 million people.
Asif Saeed Khoosa, the former Chief Justice of Pakistan, has openly remarked on the shortage of judges, recognizing that the massive backlog of 1.9 billion pending cases cannot be cleared even if they work “36 hours a day”. Moreover, the judges of lower courts are reported to “indulge in corrupt practices” that pave the way for obstruction of justice and create unnecessary delays in legal proceedings.
Efficiency in Pakistan’s entire court system can be triggered if sufficient numbers of judges are recruited that are responsible, knowledgeable and competent. This demands cooperation between the government and the judiciary. They should work together to improve the foundation for legal education, judges training and appointment, thereby producing judges par excellence.
Judicial system for the modern world?
Dynamism is an important characteristic of state institutions. Pakistan’s legal institutions, which are the cornerstone of its judicial system, lack dynamism, change, and necessary evolution. The foundational structure of Pakistan’s civil and criminal procedural rules is 100 years old – tracing back to colonial times.
Delays in legal proceedings in the judicial system have been associated with the “outdated procedures and methods” that dominate the court system. Law is an “organic and evolving discipline”. The civil procedural rules, criminal procedural rules, and the common law – the entire field of law for that matter – should be up-to-date, so it can function in contemporary people’s best interest.
Pakistan needs to rethink and reconstruct its legal institutional structure, which will transform the judicial system from the inside out. Moreover, the traditional model adopted in courts for day-to-day work should be replaced with “modern and efficient models” and technologies.
The systematic overhaul of the traditional system of courts, through a resource-intensive and funding-based solution, should be included in the long-term reformation plan of the judicial system. When the court system is harmonized with the needs of the modern time and can serve the contemporary people, it can be quick and optimal in carrying out its duty.
Independence of the judicial system
Judiciary is primarily an independent wing of the state. All courts should enjoy complete autonomy when adjudicating on any matter. Widespread corruption, bribery, undue interference of military and executive in judicial matters, influence peddling, and other misconducts compromise the judiciary’s independence, while it attempts to maintain the law of the land.
Similarly, lacunae or loopholes in the law and technicalities of court processes can give space to parties to manipulate and exploit the judiciary to their advantage, at the expense of independence of the court. The aforementioned malpractices cause delays in legal proceedings.
It is argued that the “exploitative, anti-people and elitist structure” underlying the institutional structure of Pakistan is the “real problem” or “root cause” of the dysfunction of state institutions. To address this fundamental problem, systematic changes in the state infrastructure are required to enforce equal and impersonal relationships between the judiciary and the citizens, while ensuring the independence of the judicial system.
The institutional structure of Pakistan should maintain the autonomy of all state institutions and, at the same time, maintain check and balance – as stated by The Constitution of Pakistan. For the courts to serve the people timely and equally, the judicial system should be incentivized to perform at its best, within the sphere of its power, and without external intervention.
The legal maxim “justice delayed is justice denied” should guide and determine the spirit of judicial reforms. Other than the scarcity of funds, through which the state can inject resources into courts, there are numerous indigenous and exogenous reasons for delays in legal proceedings.
As for any system, the endemic shortcomings should hold more importance than external factors. Still, systematic flaws exist in the foundational structure of Pakistan’s state institutions that tend to infringe the independence of the judicial system.
The result of the judicial system’s inefficacy is, in simple terms, denial or delay in the provision of justice. Whereas the fundamental purpose of the judicial system, its raison d’être, is to maintain law and order in the country through administration of justice. Compromise by the judiciary is a compromise on justice. Fighting and correcting procedures that hinder justice is an act towards justice itself.
If introducing reforms, however small-scaled, can expedite and improve the judicial system’s ability to dispense justice to people, then Pakistan should take action without delay.