- The concept of justice in Islam
- Criticism on the present court system
- The present backlog of the cases
- Untrained judges
- Procedural changes
- Qazi courts Separation of judiciary from the executive
- Recommendation of 1967 Law Reforms Commission in criminal cases and in civil cases
- Other causes for delay
- S.A. Rehman commission of 1958
- Unique court system
- Recorder system in Britian
- Accountability and judicial ombudsman
- Official legal aid to the poor
- Appointment of federal district judges
- Fixing of time limits for arguments
This subject involves a complex issue having many dimensions. On one side, it contemplates reforms of the administration of justice bringing within its ambit questions pertaining to jurisprudence while on the other side it calls for procedural changes for the desired results keeping in view that a written procedure was a sine qua-non for ensuring justice and checking the abuse of discretion.
Pakistan is an Islamic State and Islam attaches great importance to justice. The concept of justice in Islam may be briefly stated in the words of the Holy Quran:
“O, you who believe, the maintainers of justice, bearers of witness for Allah’s sake though it may be against your own selves or your parents or near relations, be he rich or poor, Allah is most competent to deal with them both, therefore, do not follow your low desires least you deviate, and if you swerve or turn aside then surely Allah is aware of what you do.”(Surah 4, Verse 135)
Islam attaches great importance to the administration of justice. In fact “Justice” in Islam is considered to be a divine attribute and the administration of justice is regarded as a religious duty and an act of piety. The following verses from the Holy Quran explain the concept of justice in Islam:
“He has set up the balance (of Justice). In order that we may not transgress (due) balance. So establish weight with justice and fall not short in the balance. “O, ye who believe, Stand out firmly for God, as a witness to fair dealing, and let not the hatred of others to you make you swerve to wrong and depart from justice. Be just; that is next to piety, and fear God, for God is well acquainted with all that ye do.”(Surah 5, verse 9)
Islam attaches a lot of importance to the rule of law, which is the bedrock on which the foundation of the entire Islamic, religious, social, cultural, economic and political structure is based. To establish the supremacy of law and to enable the courts to work without any fear or favour they were, in the Islamic system of Government, held in such esteem and were given such high status that no judicial system of the world even of today, can compare favorably with it. Judiciary in the Islamic system is separate from the executive and enjoys full freedom, works quite independently without being influenced from any quarter.
A Glimpse of Criticism
Some of the criticism and comments against the present court system can be summed up in the words of critics as follows:
- 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.
- It may also be appreciated that as the present day Judges are not being adequately trained on career they work with ‘hit and miss’ method. The new appointees are 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 yield, they may get tempted to go wayward at the instance of the unscrupulous litigants.
- The judiciary in this country suffers from over judicialization and in the process the justice has taken leave while the procedure and inconsequential hair-splitting have their hey-day. 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.
How much procedural change is needed?
Do we, therefore, need to change our entire procedures for implementing our desire of speedy justice and Islamization of the system? This question was well answered in the case of Muhammad Riaz, PLD 1980, FSC 16:
“Islam thus recognized that not all customs and usages of the Arabs were repugnant to Shariah, and maintained most of them as good law. Our statute laws whether inherited from the British Government or enacted after Independence are based upon the principle of common good and justice, equity and a good conscience which is the same as the principles of public good (Masaleh Muršila) of Imam Maalik and principles of Istihsan of Imam Abu Hanifa. A fortiori of these laws must be more in harmony with Shariah. In some respects, the statute law may not fulfill the standard of the law of the Quran and may also be repugnant to it but such instances are few.”
There has also been a movement for establishing Qazi Courts system in the country. This matter was considered by the Law Reforms Commission of 1958. and the opinion of the Law Commission after considering the working system of Qazi Courts is as follows:
Qazi Courts’ Future
The Qazi court system prevailing in this area has been criticized with a good deal of justification by the Quetta Kalat Law Commission of 1958. It is for consideration whether regular judicial Courts should not replace them forthwith. The proposals made by that Commission in this behalf are worthy of consideration. The Qazis at present functioning there may be used as assessors or expert legal advisers to the regular Courts, on points of Muhammadan Law. We conceive that this change would not be disagreeable to them, as the employment under the State will not be terminated. In course of time, however, after the last of the Qazis has retired, there need be no such assessors or expert advisers. After all, in the Civil Courts, in the rest of Pakistan, Islamic laws are being administered without such advice.
It is the considered view of this subcommittee that the establishment of Qazi Courts will not improve the system rather it will worsen things and inter-alia will encourage sectarianism, obscurantism and may defeat the very purpose of justice.
Separation of judiciary from the executive
The early separation of judiciary from the executive as envisaged in the Constitution and proposed in the reports of the Law Reforms Commission of 1958 and 1967 and the Law Reforms of 1972 is the answer for achieving speedy justice in criminal matters, which action is, unfortunately, being delayed only with the purpose of lending prestige to the office of the District Magistrate. At page 247 of the report of the Law Commission of 1967 this matter has been discussed in detail and is reproduced in extenso.
It is noticed that some of the grounds on which the demand for separation of the judiciary from the executive was opposed in the early days of the British are being put forward even up to this day. It is still maintained that the prestige of the District Magistrate is likely to suffer in case the Magistrates trying criminal cases are taken away from his control and supervision. This peculiar argument was advanced for the first time by the British administration. Who thought that the District Magistrate, being the eyes and ears of the Government, should have control over all officials of different branches of administration? It was interesting for the Commission to hear the old arguments from some young District Magistrates who appeared before it. None of these officers realized as to what enormous changes had taken place since the time when this argument was first used by the alien rulers with the sole intention of perpetuating a foreign rule in the country. Some of these would care for the District Magistrate if he knows that he no longer holds any control over the Magistrates who can try and sentence persons to imprisonment. Members of the Dar as well as some non-officials, interviewed by the Commission, have stated in unequivocal terms that instances of executive interference with a judicial trial before Magistrates are not infrequent but the District Magistrate and senior Government officers opposing the demand had denied the above allegation. They are of the opinion that the mere fact that the District Magistrate has under him the Magistrates who can try and sentence people to imprisonment is a vital factor, which cannot be ignored, for producing good and efficient administration. To put in plain words, the present day executive feels that it needs judicial powers to enable it to function with effectiveness. To say that the District Magistrates can command respect and authority only if either they themselves possess the power to punish or they have Magistrates under their control has become outmoded now. Possession of judicial authority is not essential for the effective exercise of executive authority. As was pointed out even in the early days by those advocating the separation of the judiciary from the executive that the Governor-General or the Viceroy, being undoubtedly the executive head in the country, did not need any judicial power to enable him to exercise his executive functions. The same holds true even to this day. It is hardly necessary for the District Magistrate that he should keep under his control officers purely engaged in the trial of judicial cases.
The Commission further commented by saying:
The Commission has carefully considered the matter both from the administration’s point of view and from the point of view of expeditious disposal of cases. The Commission has found that the combination of judicial and executive functions has been one of the main causes of delay in the disposal of cases by the courts. The employment of a Magistrate on some executive duty has always been welcomed by him so as to afford him a good excuse for not doing his primary duty of trial of cases. There has been a general feeling amongst the Magistrates that the disposal of cases is only of secondary importance because, if he is able to please the District Magistrate with his performance in the executive field, he is sure to earn a good report from him which ultimately would lead to his promotion. The District and Sessions Judges record their views regarding the judicial work done by the Magistrates posted in the area under their jurisdiction and these reports are even considered by the High Courts but they, we regret to say, are not always taken into consideration by the Government at the time of their promotion.
Recommendations of 1967 Law Reforms Commission in Criminal Cases
The summary of recommendations made by the Law Reforms Commission of 1967 for speedy disposal of criminal matters was:
- Instructions should be issued to the Magistrates that they should take equal interest in the disposal of complaint cases as they do in police cases.
- A time-limit not exceeding two months should be fixed within which report should be submitted by the court or the police officer or another officer to whom the complaint is referred for inquiry or investigation and in case of non-receipt of the report by the date fixed by the court, it should itself proceed with the inquiry.
- The strength of the process-serving staff should be increased.
- The terms and conditions of the process-serving staff should be improved and they should be entitled to draw traveling allowance and should be paid bicycle allowance, especially where it is possible for them to use bicycle.
- The attention of the courts should be drawn for strict compliance of the instructions issued for holding trials from day to day and promptly examining the witnesses in attendance.
- Proper seating facilities and other conveniences should be provided in the court premises of the witnesses and the litigant public visiting the courts.
- The scales of daily allowance and traveling allowance admissible to witnesses should be revised and made realistic for which adequate provision in this behalf should be made in budget.
- Instructions should be issued to the heads of the department to forward the summons-received by them for service of the officials serving under them to their new addresses if they have been transferred meanwhile to some other station.
- Instructions should be issued by the Government that the failure of a Government servant to appear as a witness, without reasonable cause in criminal trial, would render him liable to departmental action besides action by the court.
- Scrutiny of bail bonds and surety bonds should not be left by the Presiding Officers of the court to their subordinates nor should professional sureties be countenanced.
- In case of the accused persons confined in the judicial lock-up or undergoing imprisonment in some other cases, the court and the jail authorities should follow the instructions regarding the attendance of such accused persons issued by the Government and the High Court.
- The Government should adopt quantitative yardstick for determining the number of whole time Magistrates required for the disposal of the criminal cases.
- Honorary Magistrates from amongst the retired Magistrates, Munsifs, Civil Judges or other officials with some experience of legal matters should be appointed in consultation with the High Court. Only persons with good reputation should be selected for appointment as Honorary Magistrates.
- Whole-time Judicial Magistrates should be appointed for the disposal of criminal cases.
- In order to have effective constant supervision over the Magistrates, elaborate machinery for inspection and quick intervention in complaints of mal practices should be set up and the institution of a Judicial Ombudsman should be created.
- Steps should be taken to improve the working conditions of the court by providing adequate funds for the construction of court-buildings, where necessary, improvement in the existing court-buildings, providing libraries, furniture and other amenities in the court-premises.
- Provision should also be made for providing residential accommodation for Judicial Officers especially in large and expensive towns. For this a ten year the program may be drawn up for each Province.
Recommendations of 1967 Law Reforms Commission in Civil Cases
The Commission dealt with the subject of delay in Civil Court. Chapter 8th of its report dealt with the problem in detail. The Commission underlined the following factors for delay in the uncontested cases. Delay in depositing the process fee and failing of summons on the defendants could be attributed to the following factors:
- Delay in depositing the process fee and filing of the copy of the plaint
- A general tendency to evade service of summons on the part of those who are required to be served
- The disinclination of the process server to proceed to effect service of summons
without taking the party desirous of service along with him
- The insistence of the Presiding Officers of the courts on personal service of the
- Lack of proper means of Communication in the country
- Large number of parties to be served in certain kinds of cases
- Appointment of guardian-ad-litem in cases of minor defendant
- Lack of attention paid to the service of summons received from other courts
- Lack of proper control and supervision on the work of the process-server.
- Engagement of the Presiding Officer in office work and miscellaneous duties leaving less time at his disposal to do regular civil work.
- Delay in the filing of written statement.
- Defective pleadings.
- Non-observance of provisions relating to discovery, filing of interrogatories, inspections, admission and denial of documents etc.
- Delay in framing of issues and leaving it to the parties counsel.
- Non-observance of the provisions of Order XVIII, rule 2 of the CPC and
lengthy examination and cross-examination of witnesses.
- Non-attendance of witnesses.
- Non-observance of the provisions requiring the hearing of the cases from day to day.
- Frequent adjournments for hearing of arguments.
- Lack of proper exercise of discretion in granting adjournments.
- Delay in writing and delivering judgments.
- The practice of service of notice on the parties through the agency of process servers even during the hearing of the case.
- Stay of proceedings due to the pendency of connected matters.
- Large number of interlocutory applications and their disposal by the appellate courts.
- Delay in the execution of commission issued for examination of witnesses, local investigation, and examination of accounts of witnesses and making partitions.
“While it is true that the procedural law as contained in the Code is not perfect, it would not be correct to attribute all delays in litigation entirely to the defects or cumbersome of the procedure. The whole object of the procedural law is to bring the contending parties together, to ascertain their respective cases and the point or points of law involved and to give them reasonable opportunities of substantiating their respective cases by adducing evidence for or against the issues arising in the case, so as to ensure a fair trial and proper adjudication of matters in dispute. The incidental and consequential provisions in the Code are again designed for the purpose of achieving that objective. The provisions for appeal, review and revision are all intended to ensure fair justice. It is, therefore, inevitable that some time must elapse before matter in dispute reaches finality.under this process.
“The principles of natural justice also demand that opportunities, as envisaged in the Code, should be given to the disputants in order that justice may be done fairly in all cases. It may be possible to cut down one or more of the remedies available to a party under the Code, but this will hardly make any difference in the time that must be spent in bringing the cause to an end.”
Other Causes for Delay
The Commission also took into account other causes for the delay due to factors outside the courts. This matter has been discussed in Chapter 14 of the reports. The following is the summary of recommendations:
- Recruitment to judicial posts should be made in a planned manner so as to maintain the cadre strength to all times and care should be taken to fill up vacancies as soon as they occur.
- The cadre strength of the subordinate judiciary should be revised and adequate provision should be made for maintaining the leave and casualty reserve.
- Pay scales of the subordinate judicial officers should be re-examined and better conditions of service should be provided to make the judicial service attractive.
- Vacancies in listed posts should be filled well in time by selection of suitable
members from amongst the members of the subordinate judiciary.
- Civil Courts buildings should be renovated and where entirely new buildings should replace necessary.
- New ones should replace the old items of furniture and the courtrooms should be suitably furnished to give them a tolerably respectable appearance.
- Each civil court should have a working library of its own and the name of the courte should be included in the Distribution list maintained by the Government Printing Press so that copies of laws, rules and regulations and Official Gazettes are supplied to the Court as soon as these are printed.
- Residential quarters should be built in cities and towns as near the court buildings as possible and these should be earmarked for judicial officers. Allotment of these quarters to judicial officers should be entrusted to the District Judge.
S.A. Rehman Commission of 1958
The Rehman Commission of 1958 in its chapter 10 advised a simple procedure to be followed in family and other matters for avoiding delay. It also suggested:
- A judicial Service Academy should be set up in each province for the proper training of serving and newly recruited judicial officers.
- The Academy should arrange Seminars and Discussion Groups regarding judicial problems.
- The Academy should initiate research in new techniques and appliances for the purpose of promoting the efficiency of judicial administration.
- At the conclusion of the training at Academy the trainees should be given some practical field experience by being attached to different departments of the district administration for a short period.
- In order to enable proper supervision of subordinate courts, an organization, which may be called “The Judicial Ombudsman”, should be set up in each High Court, to be presided over by a Judge of the High Court assisted by one or two District and Sessions Judges.
- These inspection teams carry out regular and surprise inspections and give, on the spot, instructions for improving the tone of judicial administration.
- The Government should, if necessary, sanction additional posts for this organisation as the existing strength of the High Courts and District and Sessions Judges is not enough to spare officers for this purpose.
In Chapter 25 of its report the emphasis of the Commission was on proper legal education. The Commission recommended regulations of admission for legal study besides suggesting a three years legal course. It also asked for the improvement of the system of examinations for the Law Students and recommended qualifications for full time professors.
Unique Court System
Article 4 of the Constitution protects the rights of an individual to be dealt with in accordance with law. In nourishing this hope, a citizen expects the courts to be swift and certain agents of justice having a procedure well known and simple. Today the multiple court system and inattention of the State towards original court structure at the Sessions and subordinate levels has not only disillusioned him but has brought about procedural chaos.
Therefore, a fundamental change through establishing a unique court system can arrest further recession. The unique court system will be serving the basic task of determining the cases justly, promptly and economically. It will also facilitate in the selection and assignment of competent judicial and auxiliary persons and efficient use of manpower. It will have a structure with uniform jurisdiction, and standards of justice, a continuous program of professional education and training for Judges and the para-judicial personnel.
The amount of money, which is now being spent on diverse Special Courts, can be used in the establishment of an efficient unique court structure. Reference in this connection may be made to the American Legal System having a unique court structure.
Recorder System as in Great Britain
It is proposed that the subordinate judiciary we adopt “the recorder system” prevalent in Great Britain, where before the evidence stage a lower class Judge or an Auxiliary person specially appointed completes the pre-trial formalities. A Judge’s time spend in the mechanical process of the case is saved. He has to only hear the evidence and record his judgment. The Clerks of Court or second and third class Civil Judges can perform this function.
Modern Management Techniques
The judicial system presently is anachronistic where modern management methods and new techniques in the administration of justice have not been introduced. We do not think there is any court in the country where computers have been introduced or microfilming of the court record has been done etc. We do not even have the word processors or an automated legal research system.
Luckily we have a Federal Judicial Academy, which should help in the modernization of the court system and should embark on this task forthwith. Induction of Honest and Competent Persons 10.6 Induction of honest and competent persons with proper pay and promotion incentives will reinforce the confidence of the people in the court system and thus rigidity of the procedure will be reduced through men of ability and integrity.
In a variety of cases the summary procedures can be introduced all money suits of the value of Rs. 5,00,000/- be decided through a summary procedure is prescribed but it is not followed. Therefore, a change in law is necessitated for speeding up these cases.
Accountability and Judicial Ombudsman
Accountability for frivolous litigation and delays has become necessary. Lawyers who are responsible for delays or for frivolous litigation should be brought to account and debarred from practicing before a court for some period of time until they have corrected themselves. This may inter-alia call for the appointment of a Judicial Ombudsman exclusively meant for checking delays and recommending actions against lawyers responsible for delays. Anyone aggrieved by delays may move him for suitable action. A final finding by the court reflecting a case of frivolous litigation is referred for invoking jurisdiction of the judicial Ombudsman for action against the lawyer concerned. However, in this connection, the Provincial and Pakistan Bar Council can be of great help.
Costs and day to day hearing
There is need for legislation making it obligatory on every court to award heavy costs against adjournment. Amendment in law is also for consideration for day to day hearings in murder cases. The Special Courts for Speedy Trials Act, 1992 and the Terrorist Court Act do provide the maximum limits for adjournment, which can be considered for induction in these general laws.
Amendment in Section 340 CR.P.C.
Amendment in Section 340 Cr. P.C. for ensuring the presence of the council on the dates, fixed for hearing is also necessary. Any lawyer engaged in a case should submit a certificate that he will not delay the case in any manner.
There is no check on lawyers fee. The Bar Council can prescribe a schedule of fee, which should be published so that lawyers do not charge an exorbitant fee from the litigants.
Arbitration Council at the level of the Bar Associations
At the level of the Bar Associations, there should be Committees of three members each forming an Arbitration Council. It should be obligatory for every Civil Court to send one-third of its caseload to such an Arbitration Council against reasonable fee determinable by the Judge or the law for the decision of the case within a prescribed time or so. This will help in decreasing the work-load and pendency to a great degree.
Un-Scattered Court Premises
The Court buildings are scattered. This also is one of the causes of delay. As a matter of policy, all Courts in the future should be placed near one another.
Islamabad District & Sessions Courts
The Islamabad District & Sessions Court can be made a model for others to emulate. A paradigm sets the best example to be followed.
Official legal aid to the poor
In the USA after the famous Mirenda case along side the institution of the District Attorney another institution of the same level and standard was created which caters for the needs of the people who are unable to defend themselves. Creation of such an establishment here is for kind consideration.
Appointment of Federal District Judge
The subcommittee feels that the Federal Government should play a greater role in the matter of selection and appointment of District and Sessions Judges. It is for consideration if this is made a Federal Service. In the United States, the Federal Government appoints the Federal District Judges and the experience there has shown very positive results and the standards being maintained are very high. The Federal government can arrange for proper training and can ensure higher standards for their functioning. Before the 1972. Interim Constitution, the Federal Government did participate in the appointment of the District Judges. The Federal District Judges will be an institution which inter-alia will help in the strengthening of the Federation.
Views of the Sub-Committee
I am also of the view that had the recommendations, which were made by the successive Law Reforms Commissions, been implemented at the relevant time the recession in quality, candour, intellectuality and sophistry would have been checked.
Improvement of other agencies involved in criminal justice
Whereas, the Courts are an important part of the criminal justice system but they are often helpless in providing justice in view of the invariably dishonest investigation. It is felt that the present Police Act and the manner in which police conducts itself is repulsive to a civilized society endeavoring for Islamization. It is bound to be frustrated in the criminal justice system without change at that end. For a short-term measure, it is suggested that the investigating officers be separated from the police force forth-with and the investigating powers be vested only in persons enjoying a good reputation in the cadre.
There is an immediate need for the amelioration of the working conditions of the subordinate judiciary. That there is a lot of truth in the statement referred in paragraph 8 of the summary for the Cabinet dated 21-10-1992.
“While dealing with the question of trial of cases, it would be unfair not to take note of conditions in which most of the subordinate courts function. In order to enable presiding officers of these courts to do their work properly and efficiently, it is necessary to give to the rooms occupied by them the look of a law court. In most cases, the rooms are small which during summer months at any rate, cause congestion and suffocation. Some courts are held in rooms improvised by closing parts of verandahs, record rooms, etc. There is hardly any court, which has more than three or four broken chairs for the use of the lawyers and litigants, and in several rooms there is only one electric fan, which covers only the presiding officer’s table. There being no seating arrangement for litigants, they all huddle up in the court rooms.
The courts are not supplied even with proper stationery. It is most credible for the officers to keep their heads cool in such trying situation and to do their work. Although we have provided several facilities, concessions and privileges to the superior judiciary, yet reforms in the subordinate judiciary where the litigation originates, have more or less been ignored. In this respect, it would be worthwhile to mention that the post of Additional District and Sessions Judge is the only office whose emoluments were reduced in 1972. We should, therefore, provide an . immediate relief to the members of the subordinate judiciary both on civil and criminal sides and at least take care in providing reasonable for administration of subordinate judiciary should take immediate remedial measures.”
Whereas, considerable effort was made for modernizing the bureaucratic set up, hardly enough was done for modernizing the judiciary at the senior level and below. The libraries have hardly enough books. Typewriters and typing facilities, which are essential for speedy disposal, are insufficiently provided.
Frustration amongst District Judges
Incidentally, it may be mentioned that instead of up-grading the posts of the District Judges the previous Governments up-graded the posts of the police and thus created an imbalance at the local levels. Whereas, Judges are doing much more work as compared to their counterparts in elsewhere. The latter only enjoy all opportunities of growth and benefits. The Judges of the Speedy Courts, who are performing same variety of work as the Sessions Judges, have been given better grades. There is therefore, immediate need for up-gradation of the post of a District and Sessions Judge.
The District and Sessions Judge is the pole star of his division/district. The reinforcement and strengthening of his position through up-gradation and providing him with adequate facilities is bound to have an impact which will boost the system and the desired results will show immediately. The Court of the District and Sessions Judge is only a step below the High Court. In several criminal matters, it enjoys concurrent jurisdiction with the latter. This office performs multifarious functions. During the pre-partition days a very handsome salary was paid to the District and Sessions Judge. While keeping in view Islamic Tradition of keeping judges in a well-off state above the executive, the minimum grade for the District and Session Judge calls for up-gradation. This will not cause the exchequer much since the number of persons is not very large. However, this expenditure will bring a tremendous and worthwhile change. It will present an incentive for attracting the best on this side of the Government.
Fixing of time limits for arguments
In the United States there is a time limit prescribed for arguments in all court hierarchy which time limit is usually 40 minutes. For more details, written arguments are submitted. The USA model can be followed through an amendment in law for regulating arguments at all levels of the courts. This will also encourage research as written arguments will invariably be submitted and, oral arguments will only be the upshot.
Provision for mandatory special cost for vexatious and frivolous litigation
It is reiterated that for checking the tendency of filing the vexatious and frivolous cases, the law should have mandatory provisions for payment of costs to the other side according to a given standard. Presently, the courts have almost forgotten the practice of awarding costs even under Section 35-A of the CPC and this is all leading to the encouragement of uncalled for litigation. Once a litigant knows that he will be accountable for putting into action the process of law for his ulterior motives and that he will be punished or penalized, the chances are that he will refrain from taking to such a course and this will reduce the tendency to a great degree. Even after the separation of judiciary from executive, there are · certain hurdles in dispensing the inexpensive justice tot he public.