Overburdened legal institutions: the case for reform

MALIK ASAD

With 3 million pending court cases in Pakistan to date, this huge backlog clearly indicates weakened criminal and civil justice system delivery mechanisms. Without more vigorous implementation of existing rules and procedures, say jurists, and extensive judicial reforms, the log jam is unlikely to be settled. Consider these figures. According to data collected until Nov. 15, 2016 from the Law and Justice Commission of Pakistan, among the 1,954,868 court cases countrywide, 1,274,310 are pending with Punjab’s district judiciary, 121,180 with Sindh, 188,561 with Khyber Pakhtunkhwa, 13,882 with Balochistan’s district courts and 31,018 cases remain unresolved with the district judiciary of Islamabad to date. Likewise, the pending cases in the apex Supreme Court (SC) are estimated at 30,970 whereas the pendency in the Federal Shariat Court (FSC) is 661.

An overwhelming majority of pending court cases originate from Punjab: the Lahore High Court and its subordinate judiciary have 1,433,887 pending cases to date. And although this is an alarming scenario, it is next to impossible with the existing number of judges, prosecutors and courts that these cases are likely to be resolved in the future. Even a marginal reduction in these figures is impossible, say legal observers, unless substantial amendments are introduced to the Pakistan Penal Code, the civil procedure code, the criminal procedure code and the Evidence Act.
Another way to reduce the burden on courts and prisons is alternate dispute resolution mechanisms for lesser offences, explains Barrister Zafarullah Khan, the special assistant to the prime minister on law and justice. When judges are overburdened, they prefer to adjourn cases instead of conducting lengthy hearings which cause further delays. Moreover, certain litigators are known to drag cases for lengthy durations depriving petitioners of justice. Given that most poor petitioners are unable to bear expenses for lengthy court cases, many stop pursuing their cases and judges dismiss their petitions for non-prosecution.
Cases are known to linger on through three generations as is evident in a case that dates back to 1959. It involves litigation regarding the allotment of land from the government to migrant families moving to Pakistan after 1947. The case began when the central government allotted 1,700 kanals of land to Syeda and Fehmida after cancelling the title from another individual named, Sardaran. When Sardaran had challenged the cancellation, the court decided in his favour. Both women filed a petition in the LHC, and then they went onto file an appeal in the SC — in 2003 the apex court remanded the case back to the board of revenue for a decision. The board decided in favour of Syeda and the others. However, the rival party filed a petition before the LHC. After establishment of the Islamabad High Court in 2011, the case was transferred where it is still pending for adjudication. It is now being pursued by the third generation.
However, delays within the judicial system have impacted certain high profile cases such as the Benazir Bhutto murder case and the Mumbai attack case which remained undecided even after 8 years. Legal experts explain that over-worked judges are not the only contributing factor but the excessive filing of applications by the counsel of the accused puts hurdles in the way of trial proceedings. When an application seeking relief is filed, the court stops trial proceedings to start hearing the application. The trial remains stagnant until the court reaches a decision on the application. This not only happens in the high profile cases, but is said to be a routine occurrence in civil matters. Traditionally, when one changes counsel, the court adjourns proceedings for the lawyer to prepare his case.
In criminal cases, reasons for delays are similar to those in civil matters. Around half of the 3 million pending cases are criminal cases; a majority of these cases are pending in Punjab. According to an additional prosecutor general of Punjab, Rana Abdul Majeed, the numbers are high in Punjab because the police arrests accused persons for minor offences such as petty theft, files a charge sheet before the court and the government is compelled to spend millions on trials. There are thousands of such cases pending in the district judiciary of Punjab which not only burdens judges but is a waste of resources, he tells Dawn. He explains that the Punjab prosecution department has recommended certain amendments to the Punjab Prosecution Act empowering the prosecutor general to withdraw those cases where convictions are unlikely to happen when the evidence is weak. The secretary for the law and justice commission, Sarwar Khan believes that cooperation between the police, prosecution, judiciary and prisons will ultimately improve the criminal justice system. A recent incident in which the Supreme Court acquitted an accused who had already died two years ago is a stark reminder of the efficiency and coordination among these institutions.

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