Part VII of the Constitution of Pakistan, 1973, deals with the judicature of Pakistan. More often than not, the words ‘judicature’ and ‘judiciary’ are interchangeably used in Pakistan; these are, however, different. Black’s Law Dictionary, one of the most revered resources of the Common Law, differentiates the two as:
a. “Judicature: the action of judging or of administering justice through duly constituted courts”;
b. “Judiciary: a system of courts”.
Based on the difference, the writers of the Constitution of Pakistan titled the portion of the Constitution dealing with the administering of justice as ‘Judicature’. Therefore, the term, in the constitution of Pakistan, has wide connotation. It includes both the judicature and judiciary, and this is the reason that Part VII of the Constitution is further divided into chapters dealing with the constituting of the judiciary and powers required to administer justice. The ‘reform,’ which in itself is a very bombastic word in the context of constitutionalism, has been, in judicial matters, confined to constituting of judiciary more than to administering justice. One model of reform, in this sense, was practiced by some of the former Chief Justices of Pakistan. They kept their focus on judiciary instead of judicature. The incumbent Chief Justice of the Lahore High Court, Mr Justice Mansoor Ali Shah, it appears, is trying to keep his focus on both the judiciary and the judicature in equal measure. This write-up is going to briefly examine how he is doing it and what may be considered for reforming the reform.
Initiatives introduced by the incumbent LHC Chief Justice
The incumbent Chief Justice of the Lahore High Court took oath on 29th June 2016. Amongst his characteristic initiatives till date, the following warrant noting:
1. The point of departure is his philosophy of justice, which is based on a quotation of Martin Luther King Jr. which says:
“Injustice anywhere is a threat to justice everywhere…”
The quotation is now written on the homepage of the Lahore High Court website and is reflected in all initiatives taken by the CJ.
2. Secondly, soon after taking oath, the Honourable CJ transferred thirty judicial officers from their assignments and told them to report to the High Court (making them Officers on Special Duty). This initiative reflected an inward approach toward judicature, in which, putting house in order emerged as CJ’s approach. The sustenance of this approach is to be keenly observed as it has its share of pitfalls and vulnerabilities. A coherent and systemic intelligence and processing system is required to fortify the internal accountability mechanisms to ward off any misconceptions and victimization of independent-minded judicial officers.
3. Thirdly, in less than 15 days from the date of his incumbency, the Honourable CJ has constituted four committees, using the existing legal framework, reflecting his priorities:
a. Disciplinary Committee (to oversee the disciplinary action against law officers under the Legal Practitioners and Bar Councils Act, 1973);
b. Judicial Officers (Female) Supervisory Committee (to create congenial working environment for female judicial officers);
c. District Judiciary Advisory Committee (to oversee the working of the district judicial officers);
d. Supervisory Committee (to oversee the overall working of judicial officers under the Legal Practitioners and Bar Councils Act, 1973).
The analysis of the above shows:
i. that the incumbent CJ has preferred collective wisdom and institutionalization of processes over discretion and whimsical decision-making;
ii. that his focus is at the nub of the judicature i.e., district judiciary;
iii. that he believes in instilling congenial environment for female judicial officers and that is why he has provided an institutional framework for it.
The constitution of these committees, ipso facto, does not guarantee anything; their performance will set the momentum for examining the utility of the committees in future.
Reforming the Reform
With the brief overview of the initiatives taken by the incumbent CJ, it may not be apposite to style these efforts as ‘reform’; however, it may be noted that he has shown the need to reform the reform in the sense that existing legal framework has ample potential to introduce functionality into the system. Thinking within the system may pay more dividends than rethinking or redesigning the system on a simple cost-benefit calculus. The following points may be considered in this regard:
1. The thinking behind reform in justice sector in Pakistan is usually high-flying and abstract; while its objectives have to be high, its actions and their planning have to be practical and realistic;
2. The constitutional courts of Pakistan that include the Supreme Court and the High Courts have been provided constitutional powers to frame rules in Articles 191 and 202 of the Constitution. These rules, though delegated in nature, enjoy constitutional protection and by using these constitutional provisions, the honourable judges of the constitutional courts can bring substantial changes in working environment of the judicature in Pakistan. The delegated legislative function of the constitutional courts is a powerful tool in the hands of judiciary to serve the judicature.
3. Before his elevation, the incumbent CJ of the Lahore High Court had contributed in constitution of Green Bench at the LHC and in introducing the information technology in the working and service-delivery of the judiciary. It is hoped that he will further strengthen his initiatives related to environment and the information technology during his tenure as CJ. He is likely to integrate the information technology into the system in actual working of courts by introducing e-courts that are likely to use information technology for process serving, copy branch, record archiving and for providing further services oriented toward public at large.
Attempt has been made to cautiously underline the work that is taking place at the Lahore High Court, Lahore, without being hagiographic in expression. The approach of the incumbent CJ is likely to yield results as his focus is on the internal working of the judiciary and he is trying to find solutions within the system instead of reinventing it.
Wish him good luck and Godspeed!