- Making the justice system work
The key to a successful justice system is the provision of speedy and effective justice to the common man. Judges play a pivotal role in dispensing justice and ensuring the continuation of judicial proceedings in a smooth manner. The existing delays in our judicial system are prevalent due to a number of reasons. While procedural delays and lawyers may be blamed for contributing to these delays, a lack of judicial officers is also one significant factor which slows down the judicial process.
For the millions of cases pending adjudication in Pakistan, only a few thousand judges are dispensing their duties. The superior courts merely have a few hundred judges available to provide relief. The number of vacancies and need for merit-based appointments to these slots is immense and requires immediate intervention of the Judicial Commission of Pakistan.
Currently, there are almost 16 slots lying vacant at the Lahore High Court and yet, no appointments are being made. According to reports, a few lists have been circulated with proposed names for elevation however, nothing has materialized so far. 16 judges would be able to cater to thousands of cases and yet, the appointment process isn’t being prioritized. Other matters utilize most of the time of the people responsible for these appointments. The CJ LHC is preoccupied taking up public interest ‘constitutional’ matters and displaying his expertise on constitutional matters. However, his constitutional duties of recommending appointments remains in abeyance. The delay of each passing day hampers the smooth sailing of the judicial ship and is a cause for concern.
It has been almost two years since the last elevation to the LHC was made, despite there being a number of retirements in this time. The backlog of cases continues to pile up with no respite in sight.
Judges are also human beings and not infallible. The margin of error is equally present as it would be for any other branch of the state. The appointments and transfers in all other branches of the state are made on the basis of some performance or merit. The judiciary, on the other hand, remains the only branch where firstly the process of appointment is shadowed by opaqueness and there is a significant lack of transparency. Secondly, there is no appraisal of the judges already working
Along with the need to bolster judicial appointments, it is imperative that the entire process of judicial appointments to the superior judiciary be revamped and a merit-based appointment process be introduced. There should be pre-existing criteria for the judges to be considered for their elevation followed by a transparent interviewing process, similar to that in the USA. The common citizens of Pakistan have the right to, at least once, judge the person who will be judging them in the future. The citizenry should be able to see for themselves whether a person would be capable enough to don the robes or otherwise. The selection criteria should include a fixed number of required cases having been conducted before the superior courts. The person in question should be enrolled as an advocate of the Supreme Court as many of the appointed judges are likely to be elevated to the apex court.
Similarly, the time for appointment as an additional judge till confirmation should be reduced. If a judge isn’t performing up to the mark, then he or she should be removed at the first instance as opposed to being allowed to work for an entire year before being shown the door. The process of confirmation should also be transparent and the final findings on the basis of which a judge is confirmed should be made public. There is, currently, no transparency as far as the judicial appointments are concerned. People are unaware about the persons sitting at a higher pedestal deciding the fate of the citizenry. In a democratic world, I believe people have a fundamental right to know the judge who will be judging them for times to come. The level of competence of a judge should be available to the general public. If public scrutiny of incumbent parliamentarians can be made, then a scrutiny at least at the time of appointment should also be undertaken. After confirmation, of course, the sanctity of the judges and the courts has to be protected and the public cannot be given the mandate to conduct media trials of judges however, during the appointment time period, a fair amount of public scrutiny should be employed for the sake of transparency.
Another aspect which hampers the judicial system is the performance-based reviews. Once a judge is confirmed, action can only be taken on charges of misconduct, that too away from the public eye and with very little transparency. Thousands of complaints have been lodged and disposed of by the Supreme Judicial Council and yet, no order disposing of these complaints is publicly available, with the exception being only the dismissal of Mr Justice Shaukat Aziz Siddiqui.
No judge is scrutinized by his superior on the basis of his/her performance, rate of disposal and/or quality of judgements. There is no deterrent present which would hold accountable all the judges sailing in the judicial ship. Each year, the performance of all the judges should be reviewed by the Supreme Court and action should be taken on the basis of performance. If a judge displays a continued bout of incompetency then he/she should be proceeded against, as opposed to wasting the taxpayers’ money on their salaries and also endangering the rights of many which the judge in question is supposed to protect.
In the end, after all, judges are also human beings and not infallible. The margin of error is equally present as it would be for any other branch of the state. The appointments and transfers in all other branches of the state are made on the basis of some performance or merit. The judiciary, on the other hand, remains the only branch where firstly the process of appointment is shadowed by opaqueness and there is a significant lack of transparency. Secondly, there is no appraisal of the judges already working. Once confirmed, no power on earth can question or take to task any judge for his or her wrong decisions and at most only an observation can be made by the Supreme Court whilst deciding a matter. The justice system can only be set on the right course if the judges are held accountable in a constitutionally mandated manner and the appointments to the High Courts are governed by some criteria widely publicized.
