Full court reference on elevation

FULL COURT REFERENCE ON ELEVATION OF FULL COURT REFERENCE ON ELEVATION OF MR. JUSTICE WAJIHUDDIN AHMAD AS CHIEF JUSTICE OF HIGH COURT OF SINDH [5‑11‑1997] Mr. Justice Kamal Mansoor Alam, Senior Puisne Judge, High Court of Sindh and my learned brothers; Mr. Muhammad Ali Sayeed, President, Sindh High Court Bar Association; Mr. Muhammad Ameen Lakhani, President, Karachi Bar Association; Mr. Naraindas Motiani, Additional Advocate‑General; Mr. Mubarak Hussain Siddiqui, Deputy Attorney‑General for Pakistan; Members of the Bar; Ladies and gentlemen! I am greatly moved by the kind words expressed by the Hon'ble Members of the Bar and Bench today. I must straightaway confess that I do not qualify for nor belong to the high order you have graciously taken me. It would be a matter of much satisfaction for me if my endeavours enable me to acquit myself even to the smallest degree of that which you have kindly said during this reference. Of equal and indeed greater concern for me are the questions that have been posed. Such matters, I assure you, would receive the highest priority at my level. The administration of justice is never easy. It becomes more challenging in a society afflicted with corruption and dishonesty on the one hand and inefficiency and incompetence on the other. This is the unenviable state of our affairs. There is no way, these things can improve unless we correct ourselves in the individual and collective spheres. Each one of us, wherever he is and whatever he is, at the very least, remains responsible for himself and his own conduct. At the end of the day, if he is able to say and if others around him can bring themselves to confirm that he has done whatever he could in the field of his own activity, such a one has done his duty. I am convinced that I would be voicing the sentiments of the entire nation when I say that Pakistan expects every man to do his duty. These are great expectations but we have been a great people and there is no reason why we cannot be great once again at this juncture of our existence. Coming directly now to the functioning of Courts in this Province, our problems are well known and fully identified. The question is how to go about solving them and rectifying what every one recognizes as well passed the usual measure of correction and remedy. I do not have any ready solution. No one possible has. I have some ideas and some suggestions. I still need guidance from the Bar and the Bench alike. I trust in your kindness not to deny this to me. Meanwhile, I would place my own ideas for improvement and even correction by you. The first and foremost malady of our social order is corruption. People are not born corrupt. With minor exceptions, it is the circumstances which make them so. I have always believed that in a society at the top are those whose integrity and honesty cannot be taken away in the most trying of circumstances whereas at the bottom are such, who would be corrupt, no matter what incentives you provide to them. In either of these categories a very small percentage fits‑in, the vast majority lying in between. The last would be honest if you provide for and look after their basic needs and requirements and they will jump to the other side and be corrupt if you withhold from them the basic requisites for existence. It is this large majority which needs our attention. No Court runs the State. Our revenues come from the public exchequer. We do not have any control either on its accruals or on its expenditure. Even though, the Constitution guarantees independence of judiciary and its separation from the executive, the judiciary remains dependent for its financial provisions on the executive. The princely habits of our bureaucrats and other members of the executive are anything but a secret. In the first place, they do not collect all the revenues due to the State. Only a fraction is salvaged. The rest is neatly syphoned away through illicit means. Those entrusted with revenue collection are happy and so are the taxpayers, who evade their tax obligations through the simple device of collusion. To crown everything, while the people are left poorer, whatever is officially accounted for is itself squandered away in the royal pursuits of those who govern. The smallest of Revenue Officers lives in style, for example a Mukhtiarkar has a jeep under his feet, a Deputy Commissioner rides a Pajero armed with guards. Only lately, District and Additional District Judges have been provided with small cars but the latter have to arrange their own fuel. From where are they expected to foot the bill? It is, therefore, the need of the hour to correct the situation. Judicial emoluments are not commensurate with requirements, particularly of Judges at the district level. Ministerial staff of the Courts is still worse hit. Those in the last two categories, if they live up to the conventional virtues, deserve commendation. All these matters would need attention on priority basis. State revenues must be safeguarded and wasteful expenditure curtailed. The legal fraternity must play its role here. We are the guards supplied by the Constitution. Public interest litigation must be encouraged in this behalf. With your guidance and cooperation, I would venture to embark on this difficult and perilous path. I do not delude myself that these objectives would be achieved. It is for men to strive but success is to be ordained from Elsewhere. On my part, I would be satisfied if even the smallest success is achieved in the direction. This is an ongoing process and should continue. Hopefully, one day the whole of that would be achieved, part of which we may succeed to secure in our own time. Another problem, often discussed and debated pertains to the huge backlog of the cases. It is rarely realized that the problem has judicial as well as administrative facets. At the administrative levels of the Chief Justice and District Judges, an exercise to identify spurious cases and dead wood is overdue. If such cases are put out of the way, a good deal of pendency should disappear. Hopefully, we would undertake that exercise now. We would also make vexatious and frivolous litigation expensive for those who indulge in it. Failure in litigation should carry an adequate incident of costs. The prohibitive value of costs has long been ignored. The costs which the Rules provide have become out dated a long time ago. No attempts at reappraisals have been made. The High 'Court has the authority and jurisdiction to frame rules of procedure. Many of such rules have become archaic. Soon we would be suitably but carefully modifying them. These measures adopted, the unnecessary litigation already pending would have been attended to and that now in the pipeline would be blocked. The remaining cases, requiring prompt attention, would be attended to in all seriousness. Judges may even be requested to work over time. From every Hon'ble Judge, we would expect at least as much as he can physically give in the cause of this endeavour. Perhaps at the end of the day we would be able to say that we have set the ball rolling and brought the destination of a managable pendency nearer than we found it. If we succeed, we would have done our bit. Some thing was said about Constitutional petitions, Appeals, Revisions, etc., needing to be admitted in this Court in a routine manner. There is a mis?conception here, which needs to be removed. Nothing is easier for a Judge than to write two words, "Admit. Notice" in relation to such‑like matters. But if that becomes a practice then what happens: pendency increases to an evermore unmanageable level. A simple order of admission has the potential to postpone a case for determination for several years. Many a times it is the other side, who has not even been heard in such eases, that stands condemned. I have always believed that in so far as first civil and criminal appeals are concerned, such should be admitted liberally because both questions of fact and law come up for examination in matters of that genus. First rent appeals are different. Many of them are simple enough to be disposed of quickly. More complex cases can always be admitted but through speaking orders. This is truer of Constitutional petitions, Second appeals and Revisions, etc. If they are admitted as a matter of course, the outcome of litigation is postponed beyond a foreseeable point of time. The Benches, therefore where such matters are posted have to be extra cautious. A conscious categorization has to be made. Cases, which do not deserve any credence must be dismissed forthwith and the agony of litigation ended. Cases, where short questions are involved may best be disposed of by issuance of pre‑admission notices. Thus, both parties can be heard and a quick decision is arrived at. It is only those cases in this category, which require a closer examination and where the chances of success of him, who has come to the Court in the first instance, are greater than those of his adversary, which deserve to be admitted. If these principles are followed unnecessary pendency of regular cases would be forestalled. There was a practice in this Court, not very long ago, when all Division Bench cases for preliminary hearing were to be placed in the first Bench and the other Benches were left free to deal with regular cases. In that way, there was healthy disposal of Katcha Peshi cases, matched by a significant disposal of regular matters at the same time. As litigation increased, and I regret to say in part unnecessarily, it became impracticable for the first Bench to deal with all such cases at the preliminary stage. The result was the distribution of such work to other Benches. As a corollary, regular matters have gone to the back‑burner. They hardly reach. This situation also deserves to be taken stock of and I am seriously considering that except for the first and partly for the second Bench, no other Division Bench of the Court may deal with matters involving preliminary hearing and the remaining Benches should be assigned only regular work. These, inter alia, are the measures which are proposed to be adopted for quicker disposal of pending work. Once again valued suggestions from the Bar would be welcome. It is only then that we would be able to proceed with single‑mindedness of purpose. Another area of concern is the appointment and confirmation of Judges. The judiciary is the most sensitive part of the State machinery. It deserves the best from the human resources available. Regrettably, we do not have the best. But whatever we have we must make the best use of Mr. Justice Mamoon Kazi was right when he said the other day that Judges are also to be judged. Let me identify today as to who are our Judges. My dear members of the Bar, it is you, who are our Judges. It is your province to judge us. Stop us where we falter. Show us the way if ever, we lose our way. Last but not the least, we would be watching the performance of the various Courts and offices with redoubled care and caution. Those who have joined the judicial ranks have joined the same with open eyes. They have to live within their means. If they cannot, it is better for them to go, for dishonesty and corruption can be no part of this institution. I want to send this message to all concerned, loud and clear as already stated, we would be working for enhanced emoluments of the judiciary at the district level as also of the ministerial staff. However, till that bears fruit, they shall have to remain content with whatever they have. If they make their two ends meet with honesty and integrity, they would earn the praise and approbation of every one. If they cannot, Judicial offices are not for them. Lest a wrong signal goes on account of the emphasis on inadequacy of emoluments, let me add here that remunerations being unrealistic is no excuse in itself for any laxily in morals. The situation may be alarming but is not impossible. This applies with greater force to Muslims. Our Prophet (p.b.u.h.) is known to have voluntarily lived in terror and went hungry on occasions. He still maintained his dignity and none of this could detract from his being the first amongst mankind. Judges can look no further for example. In the end, I must thank you again for your unswerving kindness, which I have enjoyed overall these years and emboldened by which I would be attempting to do some of the things, which are the need of the hour and which cannot be further postponed. As always I and my colleagues would welcome constructive criticism. Let me repeat: We know that, like every body else, Judges are accountable. I personally hold that they are more accountable than other functionaries of the State. You would be welcome to correct us whenever and wherever we go wrong but please ensure that your criticism and your dissent is constructive and calculated to serve the cause of the institution to which all of us belong. Thank you all.