- Pitfalls in our judicial system
- The unchecked delay in the disposal of cases
- The stigma of stay order
- The cause of the backlog of the cases
- Government’s interest to resolve that problem
- The idea of addition of more judges
- The efficiency of judges can be increased by training
- Quality of decisions made by judges
- Saudi Arabia’s experiment
Systems neither speak nor can they defend themselves. It is, therefore, always found convenient and easy to blame the system if something goes amiss. There is a well-known English proverb that a bad workman quarrels with his tools. The truth, however, is that is the system, which is responsible for them. A system may undoubtedly, add to quality and efficiency and may also save time but it be able to work by itself. On the other hand, an incompetent may destroy a good system and incapable operator while a competent person may produce results from even an absolute system. The English people have been running, for centuries, their country very efficiently without a written constitution, just on conventions and precedents, while a number of other countries witnessed the failure of some of their finest Constitutions, made after careful monitoring, of the working experience of various written as well as unwritten constitutions. We find in the executive and the judicial fields of this country also a mess made of what was a fine and efficient system before partition. Let us take the trial of murder cases, before partition, to note that there may not be a single significant precedent to quote that a murder trial once commenced was not concluded within a couple of days. Today, we find even the murder trials being adjourned and rose around like civil suits. The newly introduced speedy trials have yielded the same good results which the pre-partition courts rendered in murder cases, on the basis of the same law which had to be evaporated through a new enactment. On comparison of the two enactments, we find that the same sanctions, which were applied by the trial courts before partition, have been re-enacted only indeterminate phrases. The material and substantial change made is only in the minds of all concerned to show that these courts are once again determined to see that the trials will not be delayed and rather concluded promptly by hearing the cases from day to day.
The delay in the disposal of other cases continues unabated and unchecked and it seems that everyone has resigned to the situation and feels helpless to avert it. The situation so obtaining also can in no case be said to conform to Islamic norms, which demand very prompt redressal of grievances. In fact the concept of Adl in Quran suggests that there should be no delay. Even the Western concept is that justice delayed is justice denied and in their norms delay of even a couple of years might fall in this category. As against that the litigants in civil cases in our country have to wait for decades and in criminal cases for years, sometimes in death cells, to see the end of litigation. In civil litigation, generally, it is the other generation, which might benefit from the result of the litigation. This state of affairs has led to high crime rate and frivolous civil litigation.
In most of the cases the litigation is not only unjustified but is dishonest or based on ulterior motives. Unscrupulous people and who are now not in minority in the Courts, willfully and by design usurp the rights of others and carry the litigation for decades and in the process fighter materially benefit, on the basis of stay orders and illegal possession, from the properties, which they know well are not theirs or deprive the rightful persons from enjoyment and possession of their rights and properties. The race for money coupled with the easy chances of getting interim orders from the courts, on the basis of misrepresentation of facts and false urgencies and the known delay in disposal of cases, have tempted a sizable portion of the public to take up litigation as a profession and benefit from the rights and properties of others. The result is that the number of cases is swelling every year, adding to the previous unbearable delay in their disposal.
Thus, in the litigation of today the target are a stay order and not the final decision. If a litigant gets a stay order, he hangs on to the litigation, for whatever the post, as long as he is a gainer in the process, but the moment he fails to get a stay order or the cost of the litigation exceeds the gains, he quits. This unscrupulous lot generally rope in their fold of litigation such genuine persons who are either afraid of the litigation or who, on being managed in this network, would part with the property at throwaway prices or compromise by paying huge amounts. Such professional litigants sometimes blackmail needy persons who may be either evicting them from their property, or selling or transferring the same for some urgent need, such as the marriage of children or payments of debts or creating Waqf to avoid property falling in the hands of some undesirable persons, after their death. They involve them in the litigation so that they must pay up their demands in order to get rid of the litigation, so as to enable themselves to dispose of the property, which they were intending to do, in order to meet their urgent needs. It will thus be seen that there is comparatively a very small portion of genuine litigants in our Courts while the rest of them go to the Courts not to seek justice but to perpetrate and perpetuate injustice and treachery.
The present backlog of the cases and the continuous addition to it thus, is a direct result of not the genuine litigation but of the false and fraudulent one. The encouragement for it is embedded in the delay in the disposal of cases. The process is thus, not only depriving the genuine aggrieved persons of their rights to enjoy their properties or get their cases disposed of promptly but is sapping also the moral vitality of the people.
It appears from the proceedings of the Parliament and the statements of the President, the Prime Minister, the Minister of Law and Justice and many other notables that the Government is also worried over the situation and is very keen to resolve it. The history of Pakistan shows that neither this problem nor the realization to deal with it, is new. There have been constituted a number of law commissions who looked into the problem and suggested ways and means to eradicate it, but no tangible results have so far been achieved. It is undoubtedly, a very odd and complex problem but, as said above, the failure for any reason to grapple with and overcome it, is providing further temptations for more unscrupulous people to enter the field and reap attractive harvests. One of the remedies being very loudly suggested now all around, particularly, by the members of the judiciary and the legal profession, is to increase the number of Judges. This may be partly correct but to some experts, neither is the situation ripe for it, nor can we find the suitable Judges to yield the coveted results. You do not appoint just a Judge but establish a Court and it is neither an inexpensive exercise nor so simple to do. A Court to work efficiently, needs efficient and experienced staff and also combines a number of other factors, failing which it will prove counter productive.
Unfortunately, the idea of addition of more Judges to the present strength has been published so much, for so long and by some important people in such a way that now it is being considered as the only cure of the malady and they seem to have become oblivious to other important factors. The rule to be followed in such a situation, should be that before adding to it, it must be seen if the present capacity is being fully utilized and if not or if there is waste, can its productivity be increased? It may not be refuted that if inefficiency is added to inefficiency, it will not bring efficiency; it may rather multiply it.
If anyone wants to verify this conclusion he can look up any file of a case under trial or one that has been concluded and compare such dates, which were productive with the total. Consequently, if we make endeavors to reduce the waste of 80-90 even to the extent of 40% we can achieve at least double the results with the present strength. Again if we, instead of establishing additional Courts at a huge expense for which we, in any case, have neither the budget, space and men, nor the training facilities and other requirements, provide a little more pay, good working conditions and some utilities free of cost, to the lower judiciary, the quality and quantity of their work can be further improved. Their efficiency can also be increased by training and discipline and the waste can be reduced by prescribing that lower Court Judges with less than five years experience should only record the evidence but send the case up to their senior colleagues who will hear arguments and decide. This method will also reduce some of the corruption, which is being complained about.
So far as the view that the increased number of Judges can liquidate the backlog, one may be tempted to verify the effect of the substantial increase of Judges made in the past. The view of the knowledgeable people, in this regard, is that the backlog is not much affected but corruption has increased proportionately or much more and the quality and efficiency have decreased likewise. Even the confidence of the people in the system and judiciary has received a severe set back and the respect of the judiciary in the minds of the people has been eroded to an irreparable extent.
We must also appreciate that as the present day Judges are not being adequately trained on their induction in the judiciary, they start their career with hit and miss method. They are also keen naturally, to show off their authority and exercise their powers indiscriminately. The quality of their decisions is very poor and lack of confidence adversely affects the quantity as well. The present-day economic compulsions coupled with the authority they wield, they may also be tempted to go wayward at the instance of the unscrupulous litigants. To dispel these effects we can learn a lot from the Saudi Arabian experience. There, after receiving education through specially designed syllabi, a selected candidate has to work as a helper Judge for at least 3 years. This period may, however, be extended upto seven years if the candidate fails to achieve the necessary confidence and proficiency. Thereafter, he can sit independently but under the watchful eyes of a Committee specially meant for it which monitors the working of all the Judges directly as also through the litigants, to ensure that they are neither corrupt nor incompetent and inefficient. In matters involving serious consequences such as Hadood cases, even the lower Court Judges sit in Benches of Threes to ensure fair trial and just results. The point of pride for the Government and a member of judiciary, in Saudi Arabia, is that it takes generally not more than three months for any case to be concluded through the lowest upto the highest Court and the execution is also as efficient and quick that a Judge or litigant in this country can never think of.
The judiciary in this country suffers from over judicialization and in the process, the justice has taken leaves while the procedure and inconsequential hair splitting have their heyday. Even such matters, which are prescribed by the legislature to be dealt with summarily, are being treated as civil suits and their decisions unreasonably prolonged. The rent and family matters fall in this category. It will thus, be appreciated that neither law nor the system can be justifiably blamed. The fault, it is stated with respect, lies squarely with the presiding officers. Citing examples of some trial Court Judges who even in the most complicated cases never took more than 6 months to give the final decision may support this view. These Judges exercised tact, wisdom, knowledge and authority to see that no case was unreasonably delayed at the instance of anyone.
To rectify the present situation, emphasis will have to be placed on training and reorientation of Judges, strict supervision and by radically changing the present over judicialization attitude. To begin with the Saudi System may be followed where the Judges do not have much resort to the formalities and rather informally talk directly to the parties to find out the real dispute between them and then call for the evidence which the parties should have either brought the same day with them or they produce on the next day. This system will cut off the waste to 80-90% and so even the present strength can give us at least four times the present results. We may also enhance the date of superannuation to 70 years as in Saudi Arabia, for the Judges, who have become so mature, can give better quality and quantity. I hope this system will cut down the delay and improve both the quality as well as quantity. If we can achieve that the backlog, as well as the fresh institution of cases, will also fall down, as the frivolous and the false litigation will automatically vanish. The conclusion thus is that if the judiciary is properly trained and equipped and its present direction changed to face the right direction, we will, Insha-Allah succeed.