Judicial Reforms

JUDICIAL REFORMS JUDICIAL REFORMS [Lecture Delivered on 5th May, 1999 before the Forum of Karachi Policy Group.] By Prof. Habib‑ur‑Rehman, Advocate, Karachi Judicial Reforms, as the topic indicates, is synonymous of judicial activism, judicial review, judicial independence, rule of law, all that the social structure demands of its people in a given territory defined a country or nation having recognition De Jure by the comity of nation being independent and has reached a democratic status. Pakistan came into existence on 14th August, 1947, by virtue of India Independence Act, 1947 (II) and was to be governed by Government of India Act, 1935, mutatis mutandis. After 7 years of its independence, in 1954, Constituent Assembly formulated the first draft of the Constitution which did not suit the then Governor‑General, Ghulam Muhammad, who sacked the Government and dissolved the Constituent Assembly on the ground of its being unrepresentative in nature. The step so taken was challenged in the case of Moulvi Tamizuddin Khan v. Federation of Pakistan, PLD 1955 Sindh 96, the then Chief Court Sindh issued the writs declaring Governor‑General's action illegal. On appeal, the Federal Court under 'Federation of Pakistan v. Moulvi Tamizuddin Khan, PLD 1955 Federal Court 240, reversed the findings. This was the first case in the history which lead to the judicial deterioration of the impact on the people by which the political trend had taken a diverse effect of polarization of the society by which the judiciary had met with set back and lost its strong impact on the Government and the people, of which the repercussion is felt, today; and to be fair, with respect, it can be said that the democracy and social justice had not taken its roots even after 52 years and the bewildered persons and the people of. Pakistan have ever since losing their faith in the country, for want of strong/independent judiciary, established Rule of law, whether the adherence to the oath of office per dictate and injunction of Surah Al‑Nahl, Qur'an XVI 91‑92 has been preserved. Quote: "Fulfil the covenant of Allah when you made a covenant, and do not break oaths after making this be not like her who unravels her yarn, disintegrating it into pieces after $he has spun it strongly." On 7‑10‑1958, President Iskandar Mirza, abrogated the Constitution of 1956, dismissed Central and Provincial Governments, dissolved National and Provincial Assemblies, abolished the Political Parties Act and imposed Martial Law. General Muhammad Ayub Khan was appointed Chief Martial Law Administrator. Supreme Court of Pakistan on 27‑10‑1958 in a case of State v. Doso, PLD 1958 SC (Pak.) 533, relying upon Kelson's Theory of Revolutionary Legality granted legitimacy to the new regime on the grounds that a Constitution can be validly abrogated by a successful and efficacious revolution. General Muhammad Ayub Khan after the case' of State v. Doso being the Chief Martial Law Administrator took reign of power from Iskandar Mirza and promulgated the 1962 Presidential Constitution. Ayub Khan resigned in the year 1969. Yahya Khan then had taken over. The year 1971 was of a great turmoil and tragedy, East Pakistan was made to separate, and Zulfiqar Ali Bhutto took over as civilian President and Chief Martial Law Administrator having enacted Interim Constitution 1972 which was replaced by 1973 permanent Constitution. . Supreme Court having decided in Asma Jillani's case, PLD 1972 SC 132, differing from Kelson's Theory of Revolutionary Legality reversing and overruling State v. Doso. On 5‑7‑1977, General Ziaul Haq staged a bloodless coup d'etat deposing Zulfiqar Ali Bhutto, imposing Martial Law. The case of Begum Nusrat Bhutto v. Pakistan, PLD 1977 SC 657, once again afforded General Ziaul Haq Constitutional validity on the basis of the doctrine of "State Necessity". The Supreme Court had allowed 90. days to General Ziaul Haq for holding free and impartial elections which did not materialize and he remained in power for a period of 11 years till his death in a plane crash in August, 1988. [The Constitutional history of Pakistan had remained so far checkered and eventful.] The then Chief of Army Staff, Mirza Aslam Baig, instead taking the reign of the country got the elections conducted wherein the Pakistan People's Party returned with majority and formed the Government, a step towards democracy, but it did not last long and the provisions of Article 58(2)(b) were put into motion which state as under: "A situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal, to the electorate is necessary." The Government remained in existence for only 20 months and was removed, interim Government was formed; conducted the election and at this juncture Muslim League returned to power wherein Nawaz Sharif became the Prime Minister who did not long last and was forcibly removed from his office and again elections were held through an interim Government, Pakistan People's Party again returned to Power, Benazir Bhutto became the Prime Minister and was again removed under the same Article, i.e. 58(2)(b) by the then President Muhammad Farooq Khan Leghari: "In the case of Shaikh Liaquat Hussain PLD 1999 SC 504, it was observed by the former Chief Justice of Pakistan, Ajmal Mian, J., that 'Acceptance of the Doctrine of Necessity ‑‑‑ turned out to be detrimental to the evolution and establishment of a democratic system in this country," and that the Military Courts were held violative of the Constitution, 1973. It was further observed that 'the present Constitution of the Islamic Republic of Pakistan, 1973, does not admit the imposition of Martial Law in any from'." "The view of the Full Bench of the Sindh High Court in the case of Sharaf Faridi PLD 1989 Karachi 404, was upheld by the Supreme Court of Pakistan in the case of Al‑Jehad Trust case PLD 1996 SC 324 and reiterated in the case of Sh. Liaquat Hussain that 'the right of access to impartial and independent Court/Tribunal is a Fundamental Right of every citizen. The existence of this right is dependent on the independence: of judiciary'." Pakistan inherited the British‑Indian judicial structure. Supreme Court replacing judicial committee of the Privy Council being the guardian of the Constitution, from High Court in the Provinces, exercising general control over the administration of justice in their respective jurisdiction, under the High Court are District Courts and Sessions Judges and Additional District and Sessions Judges in exercising jurisdiction over civil and criminal matter, Civil Judges of different grades and criminal matters to District and Additional District Magistrates are confirmed. Besides, there are Special Courts, Tribunals, Courts exercising power under Anti‑Terrorist Act: "Ever since he creation of Pakistan demands were made for bringing the existing laws in the country in conformity with the Holy Qur'an and Sunnah and for administering justice in accordance with the dictates of Islam. In 1949, the Constituent Assembly of Pakistan accepted the famous Objectives Resolution where it was inter alia resolved to include in the proposed Constitution such provisions as shall enable the Muslims to order their lives in the individual and collective spheres, in accordance with the teachings and requirements of Islam, as set out in the Holy Qur'an and the Sunnah. Again in 1962, when Field Martial 'Muhammad Ayub Khan promulgated his Constitution, a provision was made therein for the creation of an Advisory Council of Islamic Ideology and by the First (Constitution) Amendment Act, 1963, the said Council was also made responsible to examine all laws then in force with a view to bringing them into conformity with the teachings and requirements of Islam. In addition, in the First Principle of Policy which was also introduced by the said amendment in the Constitution, it was provided that 'no law shall be made which is repugnant to the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah and all existing laws shall be brought in conformity with the Holy Qur'an and Sunnah'. By Article 6(1), however, the responsibility for deciding whether a proposed law was violative of or was not in accordance with the said principle was placed upon the Legislature concerned. Consequently, neither the High Courts nor the Supreme Court had any responsibility in the matter of determining whether any, law violated or was otherwise not in conformity with the Holy Qur'an and Sunnah as such the provisions contained in 1962 Constitution were more in the nature of a manifesto for the law‑makers rather than binding obligations enforceable by Court of law. Even these pious hopes suffered a set‑back in 1969 with the imposition of Martial Law and the abrogation of the Constitution of 1962. It was only with the enactment of the Constitution of 1973 by the National Assembly of Pakistan that attention was again drawn to this matter and a provision was inserted therein to the effect that 'all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah and that no law shall be enacted which is repugnant to such injunctions'. However, as in the 1962 Constitution, the implementation of this objective was made the responsibility of the. Legislature (vide Article 227) and no power was conferred , for its enforcement on the superior judiciary." "The President of Pakistan alongwith the promulgation of the Hudood Laws also promulgated on the same day, a Constitution (Amendment) Order, 1979 to take effect on the 12th of Rabi‑ul -Awwal, 1939 A.H./10th February, 1979. According to this Order Shariat Benches were constituted in the country i.e. each High Court was to have. a Shariat Bench while an Appellate Shariat Bench was to be constituted in the Supreme Court Rawalpindi/Islamabad. These Shariat Benches were empowered to strike down existing as well as future laws, with the exception of the Constitution, Muslim Personal Law, any law relating to the procedure of any Court or Tribunal or until the expiration of three years from the commencement of the Constitution (Amendment) Order, .1979, later extended to 10 years, any fiscal law or any law relating to the collection of taxes and fees or banking or insurance practice and procedure, if they were repugnant to the Injunctions of Islam. While doing so the Shariat Benches apart from declaring any existing or future law to be Islamic or un‑Islamic, could also suggest how best the law declared to be un‑Islamic could be re‑shaped in order to bring it in conformity with the relevant Injunctions of Islam and Sunnah for implementation by the Government." The latest pronouncement of Shariat Bench had struck Riba in the case of Dr. M. Aslam Khaki v. Syed M. Hashim PLD 2000 SC 225. "A civilised society in modern time, is inconceivable without an independent judiciary Pakistan so far has, by and large, been blessed with an independent judiciary. The existing judicial system in Pakistan is at present under considerable criticism and also in the process of transformation. In addition to the traditional: Courts, a Federal Shariat Court and an Appellate Shariat Bench in the Supreme Court have already been set up which have started to function. The Courts for speedy trials and the Supreme Appellate Court have also been established. But, notwithstanding these changes the fact remains that the basic structure and system of administration of justice has not been‑radically altered. Indeed the new system of Courts cannot be envisioned to have set up a parallel system of Courts to the one that is functioning at present. Instead, the new Courts either supplement the existing Courts or in some cases partially replaced them. Integration is still achieved through the apex Supreme Court of Pakistan, which has the final appellate powers both against the decisions of the traditional Courts, and also of the Shariat Courts. Thus at the apex, the two systems converge. As for the criticism with regard to the present system, public confidence in the. judiciary is mainly undermined by delay in providing justice. Efforts are being made to remove this defect. With increasing consciousness in the people of their rights, urbanisation and increase of literacy, litigation has greatly increased but there has been no corresponding improvement either in the size of the judiciary or in the facilities available to it. However, despite. this handicap and despite the recommendations of various Law Commissions' in this regard, which have largely remained unimplemented... " With this summary of back‑drop of relevant decided cases by the apex Court, judicial mechanism, coupled with judicial review, activism, pronouncement, of judgment with far‑leaching consequences between the legislative incompetency, executive holocaust, army intervention, corrupt society, mischievous bureaucracy, selfish, pre‑dominantly, federal aristocracy, judiciary has been weakened giving rise to disruption of Rule of Law. Discrimination between haves and have not, political, ethnic, linguistic trend are the parameters of selection of judicial offices, until Al‑Jehad Trust case, popularly known as Judges' case, pronounced; whereby the appointment of Judges are made to be subject to the recommendation of the Chief Justice, unless, approval by the President is withheld but for reasons subscribed to it. 'Pro bono publico' under Article 184(3) commonly called public litigation interest can be entertained by the Supreme Court (PLD 1994 SC 693), whereby if a matter pertains to public interest can be brought by a person though‑not aggrieved man‑Article 199 of the Constitution. As to Rule of Law, the pronouncement of land mark judgment of a Full Bench of Sindh High Court in Sharaf Faridi's case (PLD 1989 Karachi 404) was upheld in he case of Al‑Jehad Trust (PLD 1996 SC 324) reiterating Shaikh, Liaquat Hussain case, which proclaims, that: "The right of access to impartial and independence Court/Tribunal is a fundamental right of every citizen." Added to it is following Objectives Resolution passed in 1949. Article 2A of the Constitution made it a substantive part of the Constitution and made effect accordingly. Article 37(d) of the Constitution of Pakistan provides that the State shall 'ensure inexpensive and expeditious justice'. Principle of policy males it mandatory that 'Organ' the Federal, and Provincial, Government and Legislatures the 'organ' concerned is' the judiciary and the person performing function on behalf of the 'organ' is amongst, others involved in the judicial system; an individual Judge. Social structure and judicial reform must go together, and it is the obligation of each and every one to subscribe: A (a) Educational and economic interests of backward classes. (b) Illiteracy be accentuated. (c) Merit for admission must be the base. (d) Sex discrimination be avoided, women be encouraged through vocational training/education to cooperate. (e) De centralizing to governance to the local limit and to village and Tehsil level. (which the present Government trying to do). B As for the judicial reform, step be taken: (1) Legal _Education.‑‑It is in pursuit of judicial reform, is of vital importance, most neglected in Pakistan, mushroom growth, institutions, subscribing to legal teachings, by way , of evening classes, commercialization on a part time basis has been the fate of these institutions. Barring few, one cannot expect legal, calibre from these colleges, unless a full time legal studies centre throughout the country are not, expected legal education right from admission entire to passing out the rigidity must follow, on the pattern of other professional pursuits. (2) Appointment of Judges bringing the Superior Courts, must be adhered to the test laid down in Al‑Jehad Trust Case. (3) Recruitment Policy and procedure for induction 'for judicial offices need to be revamped: (i) The recruitment be made through a Commission comprised of Bar and Bench: (ii) Written test, and oral examination be conducted by panel of retired Judges. (iii) Environment and working condition be drastically improved by improving physical working condition, on better terms. (iv) Financial assistance can‑ be had from the income of stamp duty---and even as presently a scheme of raising loan from Asian Bank is envisaged. (v) Extra care be made that the appointments for the post of Judges should also be nearer to the character preserved for Member of Shoora ‑‑ under Article 62(d) to (t) of the Constitution. 4. Inexpensive and expeditious justice under Article 37(d) of the Constitution.‑‑Must not only be made, subject of an Article of the Constitution simpliciter, but be put in practice, with full force. Recently Judicial Commission by the Chief Justice of Pakistan alongwith the Chief Justices of Provinces has taken step in right direction for evolving method to dispense with pending cases before the lower judiciary fortiorari:‑‑ . (1) Delay, can be mitigated; to do away with non‑genuine litigation by imposing heavy costs. ' (2) Lower Court Judges be trained before taking the post after appointment in the art of dispensing justice by the Judicial Academies. (3) Law Reform Commission in 1967 has given very valuable suggestion in criminal cases, basic emphasis was on the system of payment of process fee, and filing of summons ‑‑ evading delay in service of summons. In civil‑ cases process of service has been simplified by developing three modes, i.e., by urgent mail Publication and by Bailiff ‑‑ Delay in filing written statement, and framing issues which should be done by the Court, as provided by law and the parties be put to prove their respective claim by examination. Most of the controversies can be brought to an end at this stage, alone (Orders XIV and XV of Civil Procedure Code). (4) Frustration amongst the District Judges be removed and functioning of judicature at lower level be improved: (a) Old buildings be demolished, new Courts be built‑with proper accommodation, airy rooms, and sufficient accommodation for record, and computer be provided. Sitting. arrangements for litigants, is a must, funds be arranged from Asia Bank on low interest rate, a cess be imposed on frivolous litigation, cost so recovered be paid towards loan and interest accrued thereon. (b) Police service, services of Judicial Magistrate, clerk, be improved, Lady Judges on the lower side of judiciary be appointed who have produced better results, Family Court, Banking Court arid landlord and tenant disputes be presided by lady Judges. (When millions can be spent on making the apex Court why not for the building to accommodate lower Judiciary). (c) There should be a devolution of justice system to the lowest level, termed as Punchayat by which the decision between 'the people living in the villages and at District level should be assigned by Ordinance or Act, thereby they should decide their own cause of dispute as to land, water, canal, drainage, agriculture produce, by means of electing an arbitrator whose decision should then only be referred for confirmation or dissent, improvement, by the Court within a period of 30 days. That would minimise workload from the Courts at the lower level of jurisprudence and the matters can be settled at the grass root level. (d) The trend of the world is of today has projected a system which is termed as Dispute Resolution Outside the Court System. Most of the countries are developing alternate dispute resolution called A.D.R., wherein the settlement of disputes can be reached in shortest possible time being inexpensive where no prescribed procedure is required as followed by the Courts. The matter can reduce delayed litigation, minimize expenses, with better results. Mediation and conciliation are the main tactics where there is no judgment or award but the‑disputants are helped by the mediator or conciliator to reach a settlement: The system has now well advanced, it comprises, arbitration mediation; conciliation and negotiation. (e) Method for referring the dispute to arbitration, can be undertaken by higher Courts, exercising original jurisdiction, or the District Courts, having an unlimited pecuniary jurisdiction, by consent of the parties. Avoiding lengthy procedural method of examination of witnesses, arguments and delayed judgments. By method of arbitration and in particular Arbitration Act, 1940, which by itself has met failure should be adopted after filing the plaint and the written statement and the framing of the issues that it should be compulsorily referred to the commissioner with or without consent, an amendment to the procedural law be brought for recording evidence or alternatively for resolution of the dispute after recording the evidence if consented to by the disputants. (f) Ever since the inception of our country, matters as to inexpensive justice, reform in the judicial structure, has invariably been attempted to but without success. (g) Unless the Courts are, made absolutely independent, conferred, with a power, to be decisive in the matters of dispute laid before it independently, without fear and fetters, preserving the Constitution according to the oath, removing the obstacle from their way and making them absolutely independent by having no retirement age: the selection of the Judges, by way of a Commission comprising of the Chief Justice of the Provinces under the Chairmanship of the Chief Justice of Pakistan, Senior Member of the Bar and the Bar Council that would give a realistic attitude towards the phraseology which is called absolute justice as is being done in other part of the world, and why not in Pakistan, so that whichever party in a democratic pattern may come in power may have no influence over the judiciary being the main organ state tinder the Constitution to protect and preserve the superior law under which all men are equal and so the organs of the Government and had that been right from the inception of this country we would not have seen 4/5 Martial Laws, 58(2)(b) of the Constitution now amended, corruption at the highest level, abrupt political changes and the country would have led to enviable progress and should have achieved highest rank in the comity of nations. Today is the time such changes most drastically be brought for the, betterment of the common man and the people at large, Rule of Law should triumph, that can only be the way to safeguard human dignity, eliminate injustice and poverty and make the people masters of their own destiny: and allow them to order their lives in accordance with their needs: and an individual must be obligated to the Government, society and promote tolerance' and harmony wherein the judiciary shall have the check and balance without fear and favour and do justice amongst the people of this country as envisaged under the Objectives Resolution,. being now part of the Constitution.