On Need for Reforms
William E. Gladstone once famously said, “Justice delayed is justice denied”. He actually meant that if dispensation takes so long, it is basically a travesty of justice; for this delay disgraces the court, degrades the parties and demeans the departments concerned. The clouds of uncertainty and misery remain hovering for years, carrying along the social and economic insecurities, and judicial silence upon this adds fuel to the fire of injuries and desperation. The criminal justice system of a country is, thus, supposed to fairly prosecute the lawbreakers so as to ensure the safety of the law-abiding citizens and hence to curb the criminal activities in a society.
Replete with inordinate delays, the criminal justice system of Pakistan is unresponsive and in disarray. When a person is, rightly or wrongly, nominated in a case, it sometimes takes almost a lifetime to face the court proceedings and get convicted or exonerated, as the case may be. This systemic rigmarole consumes so much time that an accused — might be an innocent one — is seen by the public as a criminal, in sheer violation of the principle that a person is considered innocent unless proven guilty. In the meantime, he may lose his social and economic status; unfortunately, forever.
Such a person is denied even his basic human right enshrined in Article 11 of the Universal Declaration of Human Rights which reads: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.”
In a recent piece in a prestigious daily, Ms Ailia Zehra also subscribes to this stance when she writes: “Pakistan’s criminal justice system has long been blamed for failing to deliver justice to the weaker groups and lacking the capacity to ensure fair trials … There have been a number of cases in the recent past where citizens held under criminal charges for years were later found not guilty.”
The case of Asia Bibi vindicates this viewpoint because if the protests in the aftermath of Asia’s acquittal cannot be justified, the performance of criminal justice system is not glorifiable either. Her trial that lingered on for 10 long years as well as the verdicts delivered by trial court and the Lahore High Court made her a blasphemer in the eyes of many and, thus, the latest verdict sent shock waves across Pakistan, and caused a virtual lockdown of the country for many days.
Many a reason causes Pakistan’s justice system to be lethargic and passive in nature. Colonial setup lies at the bottom. Major codes and acts that constitute country’s criminal law are legacy of the British era.
Meagre salaries and incomes of police personnel and prosecution department are another issue. Judiciary, police and prosecution are three main pillars of a criminal justice system, but, here in Pakistan, only the judiciary enjoys high remunerations and perks and privileges. On the other hand, police services are, regrettably, taken for granted and, hence, policemen are denied that much prestige. A police official performs a round-the-clock duty – indubitably a humanly impossible task – but he is paid on the basis of his basic pay scale only; he is not rewarded with any additional allowances, e.g. TA/DA, overtime bonus, etc. It is hard to believe that an electrician (BPS-6) of a High Court and a Sub-Inspector of police (BPS-14) — who works either as an Investigation Officer (IO) or even an SHO — draw almost equal salaries. The police personnel have to carry out their duties in true sense of the maxim ‘a man’s got to do what a man’s got to do’. Worse, the police department is underfunded for the gigantic task of completion of investigations. And, this all results in corruption and poor performance by some officials. In consequence, investigations undergo delays; hence, the deliverance of justice.
To call a spade a spade, hooliganism and nonprofessional attitude of lawyers is yet another impediment to achieving or dispensing speedy justice. It appears that the lawyers’ community has forgotten the nobility of their profession. They go on strikes every other day, causing inordinate delays in the proceedings. Advocate Asfandyar Waraich in an article published in a national daily on August 12, 2017, reminds us of an unfortunate incident occurred at Lahore High Court: “Just consider the events of August 2, when a hundred-strong group of lawyers stormed into the courtroom of the Chief Justice Lahore High Court and demanded that the contempt of court proceedings initiated against an elected representative of the Multan Bar Council be stopped immediately. They chanted vicious slogans and disrupted proceedings … This is what it has come to. Even the highest courtroom of the province is not safe from being hijacked.” Highhandedness of idiomatic and their bullying have turned the idiomatic black coat into a symbol of bleak justice.
Later, the black coats caused ruckus in the court of the Chief Justice of Pakistan (CJP) on October 13, 2018, when the latter was hearing the case of manhandling of a policeman by a group of lawyers in Lahore. Distressed over the CJP’s suo motu action, the lawyers indulged in sloganeering like “shame, shame”, within the Court Room No. 1. This was, indeed, a mockery of the country’s apex court, and even its very justice system.
There is more to the story. Hijacking the lower courts has become almost a routine matter for the rookie lawyers, who involve in this shameful act with a tacit approval from their seniors. It’s a fact that no one is now willing to become a Civil Judge or even a part of the lower judiciary owing to the undue pressure exerted by lawyers. They sabotage the proceedings only to get the decisions in their favour; come what may.
The story will, however, be incomplete without the mention of judicial activism. In some cases, this proactive vigilance seems good but there is flipside of the picture. Taking notice on the construction of dams, labelling tea-whiteners as not milk, notices on bureaucrats’ transfers, status of government hospitals, etc. – matters that are not pertaining to fundamental human rights — will only lead to suspension in dispensation of justice in the cases already pending with the courts. Certainly for this reason, the backlog in the apex court has doubled during the last five years. In the year 2013, there were 20,480 pending cases but as of August 2018, the pendency has reached to a whopping 40,540.
Equally noteworthy is the acute shortage of manpower in judiciary and police that has deteriorated the situation. The cases linger on for decades in judicial proceedings for want of judges. Similar is the case with police department. One police constable is required for 450 persons under law but ground reality suggests otherwise; the ratio is perhaps one to tens of thousands. This results in delays in investigation process, to say the least.
The result-oriented recruitment of well-educated investigators was recently carried out by the Punjab Police but the results are still not tangible because of the archaic environment. The transformation is elusive, thanks to the problems in investigation wing of police – of under-funding, political pressure, understaffed investigation units, substandard training, meagre salary packages, round-the-clock suspended life, abysmal working conditions, etc. This is deplorable that an investigator has to pay the costs of case from his own pocket, as the reimbursements by the department in this connection are close to naught. Thus, the monetary burden is usually shifted onto the victims, leaving room for malpractices, poor investigation techniques and delays. Hence, much faith cannot be placed in the accuracy of investigation.
The tangible solutions to the problems are mainly in much-discussed yet long-awaited judicial and police reforms but only lip service has been extended so far. The sorry state of affairs can be ameliorated if time-based investigations by police and then verdicts by the courts are done. The dispensation of justice is visible when the police would timely submit final investigation reports in the courts and the latter would deliver verdicts within no time; justice on fast-track basis is deliverable if the departments are man-powered in accordance with the ratio of population, crimes and cases. Above all, handsome salary packages, incentives for good performance, stimulated service structure, privilege of leaves – weekly, monthly and annual – and fixed duty hours, inter alia, can turn the tide of the performance of investigation unit and, hence, of the whole criminal justice system.
Case for Judicial Reforms
Since taking oath as the 25th Chief Justice of Pakistan (CJP) on December 31, 2016, Mian Saqib Nisar has time and again stressed the need to bring his own house in order. There is a huge pendency of 1,810,745 cases in various courts (as on September 30, 2018) available on the website of Law and Justice Commission of Pakistan (L&JCP). In the Supreme Court, pendency per judge as on 30-09-2018 was 2,367 cases. Aware of record pendency of over 40,000 cases at Apex Court, the CJP has again and again emphasised the need for much-delayed judicial reforms.
Devising speedy justice system is a daunting challenge in Pakistan due to large pendency, frivolous cases where filers go unpunished, frequent adjournments, administrative highhandedness forcing people to go to courts, outdated procedures and paucity of judges. The existing inefficient and outdated judicial system is exploited by money power that hires crafty lawyers to get justice delayed, destroyed or manoeuvred.
The much-publicised National Judicial Policy 2009 was nothing but an attempt to cure the symptoms as no efforts have been made till today to make meaningful and effective structural changes removing the causes of illness.
An efficient justice system can only be established if efforts are made to produce highly competent adjudicators at lower levels. It will help produce competent judges for higher courts in future. All existing appointments of members in all the special tribunals created under Article 212 must be placed before the chief justice of the province in which the members are performing their duties. The chief justice himself or any other judge authorised by or committee appointed by him may look into such appointments to approve or disapprove the same, which would be binding on the federal government. All existing and future appointments in appellate tribunals must be screened by the judicial organ of the state.
The main aim of judicial reforms should be elimination of unnecessary litigation and facilitating smooth running of affairs between the state and its citizens. Once both learn to act within the four corners of law, there would be drastic decrease in litigation.
It is painful that presently the governments are the main litigants. They usurp the rights of people and then drag the poor citizens in courts. We all know the reasons for this morbid state of affairs but nobody wants to fix it. Judicial reforms do not stipulate asking for more judges and funds but eliminating unnecessary litigation and quick disposal and to help reduce its occurrence in the first instance.