Mr Alyan Waheed is an undergraduate student studying IR at National Defence University, Islamabad.
Ms. Palwasha Khan is a student of International Relations at the National Defence University Islamabad.
Mr Shaheer Ahmad is currently pursuing a bachelor's in International Relations from NDU.
Mr Syed Hassam Ali is pursuing his Bachelor's in International Relations from NDU. He is also working as a Researcher at PTV World.
Introduction
The struggle for the restoration of an independent judiciary and the sovereignty of rule of law ultimately prevailed in Pakistan, so mindful of the public expectations, the then-Chief Justice of Pakistan directed the National Judicial Policy Making Committee (NJPMC) to formulate the National Judicial Policy 2009 based on the following underpinnings:
- Independence of Judiciary
- Misconduct (i.e. judges are subjected to the prescribed code of conduct)
- Eradication of Corruption
- Expeditious Disposal of Cases (including short term and long-term measures regarding criminal and civil cases)
Independence of Judiciary
The policy suggested that no judge of the superior courts shall accept appointments inferior to their status such as a presiding officer in the banking courts. It was done to maintain the dignity and respect of the judge in the eye of public and to uphold the independence of judiciary. Moreover, instead of appointing the retired judges as presiding officers of the special courts, the qualified judges would be given priority after consultation with Chief Justice of High Court.
However, the High Courts may recommend the serving judicial officers as presiding officers of special courts by means of transfer and deputation. Furthermore, all special courts under the jurisdiction of executive must be placed under the supervision of judiciary which will decide their appointments after the recommendation of the Chief Justice of a High Court.
Misconduct
Judges of superior courts are obliged to follow the prescribed code of conduct. According to Article X of the code of conduct, they are obliged to take all possible steps to execute and decide the cases in the shortest possible time. Thus, the judge who is not mindful towards his duty is not faithful to his work. Hence, the Chief Justice is asked to report the violations of code of conduct to the Supreme Judicial Council for necessary actions.
Eradication of Corruption
It basically aimed at improving the existing mechanism of court. In each High Court, a cell named “Cell for Eradication of Corruption from Judiciary” had been established under the supervision of the High Court’s Chief Justice to file complaints. Moreover, actions would be initiated against those officers who are charged of persistent corruption or having more assets than their income. Furthermore, surprise inspections are carried out by the judges to monitor the fair working of judicial organs.
It was also decided that the judicial officers would remain at a particular station for 3 years before they are transferred to another area. The lawyers who remain as judges of the superior courts cannot use the flags, insignias, prefixes or suffixes of their previous designation to attract clients.
Expeditious Disposal of Cases
Short-Term Measures
Criminal Cases
In bailable cases, the grant of bail is the right of the accused hence the accused must be released on bail under the capacity of Section 496 of the Code of Criminal Procedure (Cr.P.C), 1898. Bail applications under Section 497 Cr.P.C will not be delayed for more than 3 days. Similarly, application for cancellation of the bail under Section 497 Cr.P.C will be decided by the courts in 15 days.
A police officer is obliged to submit challan in 14 days and the judge is not authorized to grant remand in the absence of accusation. Meanwhile, the criminal cases having punishment of 7 years or above including death cases will be executed in 1 year. Lastly, to monitor false cases, the court shall impose fines on the parties by taking penal actions under Section 250 Cr.P.C.
Civil Cases
In civil cases, writ petitions including service disputes and admission of students in colleges shall be decided in 60 days. Rent and property cases shall be decided in the period of 4 months. Moreover, family cases shall be decided within 3-6 months. Furthermore, banking, taxes, and levy cases shall be decided within 6 months. In Supreme and High Courts, priorities should be given to the old cases.
Long-Term Measures
In long term measures, the High Court Judges must take periodic inspections of the jail to ensure the compliance of Prison Rules. Courts should be constructed in complexes to accommodate all courts in a single premise and to avoid the nonappearance of lawyers. Moreover, the capacity and functioning of the law enforcement agencies should be enhanced, which includes installation of video conferencing facility between courts and jails to facilitate the early disposal of cases.
Judicial officials of all provinces should be treated equally and disparities in their allowances and salaries must be removed. To resolve the issues of medical facilities, the Chief Justice must convene meetings with health ministries to ensure the provision of adequate medical facilities.
Failure of the National Judicial Policy (2009)
The National Judicial Policy 2009 is a comprehensive effort at restructuring Pakistan’s judicial system and making the justice system more responsive to the citizens’ demands. It mainly focused on addressing the problem of the huge backlog of cases and delay in court proceedings. In 2012, the policy was revised by the NJPMC as a result of its implementation results.
However, the National Judicial Policy 2009 has failed to solve fundamental issues in the courts of Pakistan, notably the criminal justice system, due to poor delivery. It is believed that the already low conviction rate will continue to drop. Anti-terrorism courts have not yielded the desired outcomes, exacerbating the quality of justice. A strengthened and reformed criminal justice system is the best and only long-term solution.
Despite the fact that the National Judicial Policy intends to clear the backlog of cases in the court, maintain its independence, and combat corruption, its efficiency has been questioned. To obtain one point to determine oldest cases or half a point for dismissal, judges disregard such cases, owing to difficulties in gathering evidence. This lowered the quality of justice delivered on an urgent basis and increased litigation.
The policy did not emphasize on the issue of frivolous lawsuits, which accounts for 40% of the total litigation load, and the few penalties intended to address this issue were not applied, augmenting the backlog even further. In addition to repatriating judicial officers, debt collectors and process servers should be repatriated as soon as possible. Adjournments create significant delays and summons become more difficult to serve when they are required to serve in another district.
Each person in charge of the process serving agency has the ability to send and receive summons through email. Moreover, summons might also be scanned or faxed without delay. Even summons issued by a High Court can take months. The judicial policy does not address the vacation issue. Every year, the judiciary takes vacations in August and December, with just a small number of judges available to deal with important issues. As a result, routine work is affected tremendously.
To demonstrate its adherence to a critical national cause, the policy was forced to forego its annual vacations. It also neglected to consider how to handle the presiding officers’ ordinary leave requests. When a judge is on a leave, it is believed that cases scheduled for the day are moved back by a month or so. It is required that the National Judicial Policy develop rules, stating that cases should be handed to other judges in delay-causing conditions or in the cases of absences.
Furthermore, the proposal by reporting officers and the countersigning authority to create a separate Personal Evaluation Report (PER) for judicial officials leaves matter vulnerable to bias. Judges’ competence and honesty should be reflected in their decisions and orders. Judges, however, are still assessed using a government-notified PER proforma that is printed for civil servants.
The policy established a timeframe for case disposition in order to minimize the backlog. However, due to minor technicalities, cases are frequently remitted back to the trial or lower appellate court for new rulings or the recording of evidence that the appellate court believes necessary for a just adjudication of cases. The policy is least concerned with the Supreme Judicial Council’s strengthening and functioning mechanisms.
On the contrary, the policy has set up a cell to combat judicial corruption. Corruption is a problem, but incompetence is far more serious (one competent judge is better than ten inept ones). As a result, greater emphasis should have been made to assembling a competent judiciary. The policy gives no indication of how to find competent judges or how to deal with inept ones.
Lastly, the selection process is far from being transparent. It is often assumed that only persons with contacts within the judiciary can get judicial employment. In this sense, the National Judicial Policy should have developed a recruitment policy. Moreover, the curriculum of the Judicial Academy in Islamabad must be revised to provide excellent training not only to lower judicial officials but also to those in the upper courts.
Implementation & Political Will
Up until now, the National Judicial Policy of 2009, like previous reforms has failed to achieve the desired outcomes in the judiciary of Pakistan. The biggest reason for this policies’ failure is the lack of implementation and the lack of political will. Policy implementation is a major issue in most developing countries.
Political will, which is desperately needed in Pakistan, was missing and hence the policy failed to fix the ailments of the judicial system of Pakistan. The stakeholders who made up the major chunk of the political will for this policy to succeed had become so embroiled in malpractices and corruption that they feared that a free and fair judicial system would indict them for their crimes against society as well.
Recommendations
The politicization of judiciary must be halted through a proper enforcing mechanism. In this regard, judges must be apolitical after their retirement. It is evident in the current controversy regarding the former Chief Justice Saqib Nisar who has been accused of giving leverage to the current party in the 2018 elections by helping PTI to gain power. Any judge or judicial employee involved in malpractices and misconduct should be brought before trial properly.
Case-load is a serious issue that needs to be managed because the backlog of cases becomes the root cause of other malpractices. This also gives rise to incompetency by hasty decisions of the judiciary and decreases the trust of people on the judiciary. If cases are set to be ended in due time, then this will increase the competency of the judiciary and further enhance the trust of people on the judicial apparatus of Pakistan.
The vacation schedule needs a reevaluation as holidays leave the courts with a lack of the sufficient amount of judges to deal with the urgent matters. There must be a committee within the judiciary that checks the schedule of the judges.
If you want to submit your articles, research papers, and book reviews, please check the Submissions page.
The views and opinions expressed in this article/paper are the author’s own and do not necessarily reflect the editorial position of Paradigm Shift.
