Reforming the Justice System
By Imtiaz Gul
Express Tribune, May 18, 2016
As the hapless nation agonises over the worst squabbles among the ruling elite over the Panama Papers, it also wonders which institution to look up to for relief from issues arising out of bad governance or deficient rule of law. In these extremely stressful times, the judiciary remains a beacon of hope for most Pakistanis. They hope some actionable vibes will emanate out of it. However, some recent statements of the honourable judges of the highest court of the land bring doubt to the notion that the judiciary of the country will be able to bring the required relief.
Chief Justice Anwar Zaheer Jamali recently told a conference on judicial education that “only a few learned judges in the entire country have full a command over the English language”. The chief justice also advised judges to learn the international language and urged that special courses of English language be introduced for training judges to help them understand issues better.
On another occasion in March, the chief justice had lamented the low conviction rate and called for greater introspection and collective efforts within the justice sector to turn things around. Similarly, Justice Amir Hani Muslim had remarked on March 24 that 17 judges of the Supreme Court could not be expected to streamline or make the system of the country right.
The list of such statements — which do identify critically important issues — is endless but they do beg a question. The point is simple: low conviction rate, delays and miscarriages of justice, and massive pendency is not because judges don’t have command over English. This state is also not entirely a result of the leaking governance structures. Neither do these problems stem from a flawed democratic system.
They result from the exploitation of the criminal justice system. And this exploitation — that starts at the police station — happens under the nose of the judiciary. Collusion between lawyers and the lower judiciary traps countless people — both innocent and otherwise — in endless, expensive and torturous litigation on frivolous, petty pretexts, often for fraudulent motives. It is heart-wrenching to see widows, destitute orphans, females in particular, and poor plaintiffs seeking justice burning heels as well as coughing up hard-earned, scarce resources to pay to their lawyers for countering plaintiffs. They are in awe of how defence attorneys exploit small technical points of the CrPC or the CPC to prolong cases and cause adjournments, one after the other, only to blackmail plaintiffs.
The exploitation of the CrPC or the CPC at the lower courts is at its worst, where both the plaintiffs as well as the accused/respondents find themselves at the mercy of the bar members and the bench. This situation calls for action. The people of Pakistan wonder what to make of the perception that these problems are a result of an invisible nexus between the police, the bar and the bench. It was this context, it seems, that prompted the Senate to constitute a Committee of Whole for studying and proposing reforms in various existing laws. The Senate committee, according to the national media, compiled a number of recommendations in December, 2015. Most of these related to the reform of the Civil Procedure Code, Law Reforms Ordinance 1972, Land Acquisition Act 1894, Criminal Procedure Code, witness protection, the Security and Benefit Act, Arbitration and Conciliation Act, Supreme Court (Number of Judges) Act and the Anti-Terrorism Act.
These recommendations probably offer a good entry point for the top legal minds at the Supreme Court to initiate a reforms process with the help of experts and come up with a consolidated package that can eventually be pushed through parliament. I will, respectfully, submit that the best legal brains at the highest court can emboss their names in the history of Pakistan by instituting a reforms process that can redress poor litigants’ grievances, and relieve the judiciary of unusual but avoidable burdens.
The reforms should include strict punishments for fraudulent habitual litigants who rely on attorneys willing to contest for money and not for rights or principles, those who would justify even a cold-blooded murder committed in broad daylight on grounds of emotion and compassion. The system is crying out for justice, and for the prevention of abuse of law by the bar and the bench. What is needed is the killing of the propensity to abuse and exploit existing laws.
Imtiaz Gul is the executive director of the independent Centre for Research and Security Studies