Problems faced by the bar and bench | Pakistan Today

Problems faced by the bar and bench

  • The new judicial policy stresses disposal rather than justice

Justice hurried is justice crushed and buried, so goes the saying. There is no gainsaying that Article 37(d) of the Constitution lays down that inexpensive and expeditious justice is to be meted out to the litigants. Be that as it may, by no stretch of imagination does the phrase ‘expeditious’ mean to bypass the substantial and procedural due process woven in the warp and woof of Articles 4 and 10-A of the Constitution.

No sooner had the former Chief Justice of Pakistan, Iftikhar Muhammad Chaudhary, been restored to his office by the Supreme Court than the media, which had had a significant role in his restoration, stepped up the demand for expeditious disposal of the cases pending before various Courts. Civil society too lamented that hundreds of thousands of cases were gathering dust without being decided for years– in some cases even decades. To meet the soaring expectations and demands, the National Judicial Policy was introduced in 2009. It was revised in 2012. A consensus was reached among the CJP, the chief justices of the High Courts and the chief justice of the Federal Shariat Court, to usher in revolutionary judicial reforms. By and large, the legal fraternity in particular and civil society in general were appreciative of the effort.

The Bar and Bench should sit together and address festering problems and thorny issues sooner rather than later, so as to restore the confidence of general public in the administration of justice

At the heart of the judicial policy introduced in 2009 lay a resolution to ‘fast track’ court proceedings. This brought pressure to bear upon courts. Old cases were divided into three categories according to the time elapsed since their filing. The files were placed in red folders.

The trial courts were clogged with hundreds of cases listed every day out of the long pending cases (old, older, oldest), new cases, cases in which evidence was to be recorded, applications and cases in which final arguments were to be heard. It soon became humanly impossible for a judge to give each case an attentive hearing. Justice was thus sacrificed at the altar of expediency, as the disposal rate rather than the quality of judgments became the be-all and end-all.

Consequently, many judgments and orders fell far short of the requirements of law and were bereft of sound reasoning. Regrettable as this was, when these judgments and orders were challenged before the District and Sessions courts, for the most part, they were simply rubber stamped. The judges, it appeared, were no longer applying their independent judicial minds in examining the findings of the lower courts. Instead, they were merely rehashing and reiterating the findings. There is no denying that some of the judges were still handing down well-reasoned, well-considered and well-argued judgments, the rush of work notwithstanding; it’s just that there were very few of them.

A hard-to-handle workload is not unique to the district judiciary. A High Court judge typically has a cause list containing hundreds of cases, ranging from urgent matters, to regular cases, to supplementary cases, to motions and division bench hearings. Not a day goes by without cases being ‘left over’ in one court or another.

The policy hung like a sword of Damocles over the subordinate judiciary. The judges of the trial courts were required to report disposal statistics to the district and sessions judges concerned. The district judges had to send similar reports to the high court and the high court judges to the chief justice. Pursuant to Article 203 of the Constitution, high courts exercise supervisory jurisdiction over the district judiciary. However, the Supreme Court has no supervisory jurisdiction.

By and large, the policy still holds the field. The latest National Judicial Policy (2019) announced by the CJP, introducing Model Courts for expeditious criminal trials, too, follows the spirit of the 2009 policy. However, the announcement has stirred up a virtual hornets’ nest. The Pakistan Bar Council has decided to boycott the courts and all the Bar Councils are protesting what is being rightly called a misconceived and ill-judged policy.

Cases are left over when judges leave them unheard for one reason or another. The origin of the practice is lost in the proverbial mists of time. It is generally believed that left-overs are as old as the High Courts themselves. Not infrequently, no more than a single case is heard in a Court on a particular day. Much to the consternation of lawyers and to the enormous dismay of the parties, the rest of the cases are left over. Every lawyer having a high court practice is familiar with this practice. Lawyers and their clients might wait in the courts for a whole day only to hear that the cases have been left over. This is particularly hard on the parties and lawyers who come for the hearing from another town. It causes alienation and undermines their confidence in the administration of justice.

A roster is issued by the order of the Chief Justice through the registrar on Friday night or on Saturday, fixing the cases before the available benches. It is also uploaded on the website of the High Court. Cause lists of the courts are issued ahead of the week. A perusal of a cause list for a particular day would reveal that there are several kinds of cases fixed before a judge. Lawyers usually receive an SMS through an IT system, introduced by Justice Mansoor Ali Shah, the former chief justice, informing them of the date or dates on which they have to appear before a particular bench in a particular case.

Sometimes a case is fixed several times but left over every time. The system is like a conveyor belt, it keeps moving the cases at considerable speed but does not stop for judges to pick them up. The only way not to have leftovers is to assign fewer cases to the judges in the first place. This requires appointing more competent lawyers as judges.

Lawyers sometimes complain of flaws in the IT system, saying they don’t receive the SMS in time and sometimes their names are missing from the cause list. When lawyers don’t appear on the fixed date, the cases are dismissed for non-prosecution. While it may be unfair to pass a sweeping statement in this regard, there is possibly room for improvement. Of course, the system should be made fool-proof.

The system also needs to have an answer to the problem of cases being consigned to oblivion, when judges hearing them are transferred to one of the circuit benches. Seldom are these cases then fixed before other judges. The party wishing that the case be fixed for hearing can then either grease some palms in the Computer Branch or file a petition for early hearing. Either way, there are no guarantees.

Last but by no means least, some of the courtrooms, lack space to accommodate all the lawyers summoned for hearing, not to talk of the parties. Lawyers thus cannot help pushing and shoving to make their way to the rostrum when their cases are called. District and Sessions judges, by comparison, have more spacious court rooms.

All said and done, the Bar and Bench should sit together and address the festering problems and thorny issues highlighted above sooner rather than later, so as to restore the confidence of general public in the administration of justice.