SUGGESTIONS & PROPOSALS FOR TILE REFORM OF JUDICARY, AS ASKED BY THE NATIONAL JUDICIAL POLICY MAKING COMMITTEE

SUGGESTIONS & PROPOSALS FOR TILE REFORM OF JUDICARY, AS ASKED BY THE NATIONAL JUDICIAL POLICY MAKING COMMITTEE <!--[if gte mso 10]> SUGGESTIONS & PROPOSALS FOR TILE REFORM OF JUDICARY, AS ASKED BY THE NATIONAL JUDICIAL POLICY MAKING COMMITTEE By Mr. Justice Mian Shakirullah Jan, Judge, Supreme Court of Pakistan Good governance 1. This is with reference to national judicial policy making committee meeting calling for suggestions and proposals by taking all the stake holders on board and giving them a sense of participation, one of the essential elements of good governance. Three core issues 2. The three main core issues have been addressed in the meeting i.e., (i) independence of judiciary, (ii) expeditious disposal of the cases and clearing of back log, and (iii) eradication of corruption. Their different aspects have been discussed threadbare and necessary steps were proposed to be taken to achieve the goal. Independence of Judiciary 3. Regarding the independence of judiciary it was resolved, in line with the constitutional command and the verdict given by the superior Courts that the judiciary be separated from the executive, one of the aspect of the subject (Independence of Judiciary) while following the aforesaid command and decision of the Court various ways and means were proposed. In this respect for the first time some commendable, innovated, novel and unprecedented decisions have been proposed when it was provided that no retired Judge of the superior Court shall accept an appointment of a post which is lower to his status or dignity, in addition to the one that in future no Chief Justice or Judge of the superior Court shall accept appointment as an Acting Governor of the Province. It was also resolved that judicial officers working in different departments in the Government/Executive be repatriated to the judiciary, its parent department, and further also that all the Special Courts/Tribunals which are performing quasi-judicial functions be presided over by the serving Judges instead of retired Judges and they may be brought under the direct supervision and control of the High Court and also in the matter of appointment and posting instead of any Ministry/Department of the Federal/Provincial Government and thus giving powers to the High Court in addition of the exercise of appellate or revisional jurisdiction on the judicial side Tribunals may be under the administrative control of the High Court. Elections of the Assemblies and Local Bodies consume sufficient time of judicial officers. 4. While following the aforesaid principles there is a one grey area where not only such over lapses of the judicial and executive functions occur but even most time of the Judges, meant for the judicial functions is consumed by holding the elections for all the elected bodies right from the Union Council up to the National and Provincial Assemblies where judicial officers are involved in it. Each election in a constituency takes about 30 days for the completion of its (election) process and thus Elections cause hundreds and thousands of cases are postponed and delay and make no progress during the election is made in the cases the cases and rather in a way the progress and process in the unmanageable cases is stayed. Since the judiciary is already over burdened and this delay causes de-arrangement in the cases and thus made the cases unmanageable and the cases get out of control of the Judges. Detail and nature of elections 5. There are two types of elections which are held in our country, at the moment, (i) elections of the 2. Types of elections (i) of the Assemblies, and (ii) of the Local Bodies. National and Provincial Assemblies, and (ii) elections of the local bodies. The Elections laws provide for the appointment of the D.R.O., R.O. and A.R.O. to be from the Federal or Provincial employees and autonomous bodies not necessarily to be judicial officers. R.Os. not necessarily to be judicial officers. 6. There are about 260 seats of National Assembly, which involve judicial officers (excluding women and FATA), 577 Provincial Assemblies seats (excluding women and non-muslim seats). It thus becomes 837 seats/constituencies. Other arrangements have been provided under the law National Assembly. S. No. Provinces General Seats 1 Punjab 148 2. Sindh 61 3 N.-W.P.P. 35 4 Balochistan 14 5 The Federal Capital 2 Total 260 Provincial Assemblies S. No. Provinces I General Seats 1 Punjab 297 2. Sindh 130 3. N.-W.F.P. 99 4 Balochistan 51 Total: 577 126000 cases are not decided due to regular elections of assemblies not Including by elections Roughly for each constituency there are about 2 judicial officers (at the average) to be appointed to perform the functions of D.R.O., R.O. and A.R.O. and thus about 1114 judicial officers are involved in such duties. The election schedule for each constituency/election takes about 30 days to complete the process of election and thus a judicial officer, involved in elections alongwith his own staff, cannot perform judicial functions for 30 days. A Judge at the average decides 2 cases per day in addition to his other work of recording evidence, hearing arguments and writing judgments, and thus the total number of cases on which the decisions ought to have been taken and the Judge can do so but are not decided because of election, in a regular election excluding by-election, comes about 126000. 7. Similarly there are about roughly 6630 local bodies elections/constituencies to be held. Local Bodies S. No. Provinces City Districts Districts Unions Tehsils Towns 1 Punjab 05 30 3464 106 38 2 Sindh 01 22 1108 103 18 3 N.-W.F.P. 01 23 986 50 4 4 Balochistan 01 27 567 75 2 Total 08 102 6125 334 62 795600 cases are not decided due to elections of Local Bodies For each constituency/election there are at least 2 judicial officers et the average who are appointed and the total number of judicial officers comes 13260 and similarly schedule for each election extends to about 30 days and thus the total Judge's days comes as 397800 and with an average of two cases per day to be decided by each then the number of cases comes as 795600. This is in addition to other Court work i.e., the recording of evidence, hearing of the arguments and writing judgments. Total number is 126000-795600=921600 8. The regular election not including by-election of the aforesaid two elections, one is that of National and Provincial Assemblies and the other is local bodies, the total number of cases which are otherwise could have been decided and are not decided comes as 126000+795600=921600. 200 cases per election of a single constituency per Judge are not decided 9. Election of a single constituency causes the delay of about 120 cases and if delay in the progress of the cases e.g., in evidence, arguments and judgment writing, is taken in the terms of units or the number of cases decided then this figure raises to about 200 cases per Judge per election in a single constituency, the decisions of which are delayed. Elections become a cause for bringing bad name to the judiciary 10. The purpose and aim of entrusting this duty to the judiciary was to hold free and fair and impartial elections as the people trust the judiciary more than any other Government department, however, on account of events which are beyond the control of the judiciary e.g., lack of police control and vigilance during and after election hours, highly charged political environment, use of fire arms by political rivalries, resulting harassment to the voters and weak candidates, non-cooperation of police with the R.O., no security for Presiding Officer during and after election hours until they deliver results to the R.O., mismanagement of transport plan for Presiding Officers. This object is seldom achieved. The election activity is not as a whole in the control of the judiciary or the judges who had been appointed as District Returning Officer (D.R.O.), Returning Officer (R.O.) and Assistant Returning Officer (A.R.O.) as it is the executive and moreso the law enforcing agencies which control the same and without their effective cooperation the purpose cannot be obtained rather the same brings bad name to the judiciary and for no fault of it, and thus lowers the image of the judiciary in the eyes of the public and mostly due to the action or inaction on the part of the executive. The involvement of the judiciary in the election does not prove beneficial either to the judiciary itself or to the public at large and their this involvement needs reconsideration. The involvement of the judiciary needs reconsideration. Adherence to the code of conduct also becomes difficult 11. The code of conduct which a Judge is to follow and he wants to follow but during elections he cannot do so because of the situation and eventualities with which he has to encounter and also because of the nature of the duty which is more executive, as he becomes accessible, intermingles with the people and in order to see as to all the polling stations are fit for election purposes he has to do physical verification of the building through visits and which brings a Judge into streets. While performing the election duties the people give less respect to the R.O. as compared to a Judge while sitting in the Court room as a presiding officer in the same chair and marked difference is seen in the attitude of the public at the time of their treatment with the judicial officer and also at the time of giving them respect. There are examples which have been quoted by some of the judicial officers that even some of them have been given blows during the distribution of the election material by some of the election staff. It has also been heard that the judicial officers perform the functions in the elections are generally told that personal safety to be priority. There are also examples where the judicial officer, an R.O. had been held hostage for some time. All these eventualities lead to lower the status of a Judge. The facilities e.g., conveyance and the petrol which are to be supplied are not provided as required with the result that the judicial officer feels difficulties to perform the duties with a judicial thinking and mind and following the code of conduct. On account of temptation, the availability of the chances and close interaction at a large scale may lead to corruption may not be monitory one but in other unnoticed forms. Marked difference in the attitude of people qua respect to the Judges The involvement of the judiciary in the elections can be spared 12. The reputation of the judiciary is always at stake during election due to fault of other agencies involved in the elections, and its protection is need of the hour through a timely policy action. Now this is the time when the Executive/ Government/Election Commission can be asked to arrange for the ensuing local bodies elections and sufficient time is still available at its (Government/Election Commission's) end to make arrangements for the appointment of their D. R.Os. , R. Os. and A. R.Os. from the other Government and autonomous bodies as provided under the election laws instead from the judiciary. By sparing the judiciary from the involvement in the election would play a great role both of the separation of the judiciary from the executive, restoring its exalted position of respect in the eyes of the public and would play great role in the delay reduction/in the disposal of back log to a greater extent. In the coming elections of Local Bodies such alternate arrangements can be made. 13. On trial basis the ensuing elections for the local bodies, if decided by the Government to be held, may be through other officials of the Government by appointing them D.R.O., R.O. and A.R.O. and also may be conducted phase wise. However, the judges may act as Tribunal which is quasi-judicial function in the election matters. However, from whatever angle one see the involvement of the judiciary is not desirable as it is against the principle of independence of judiciary i.e., the separation of judiciary from the executive, consumed sufficient time of the judiciary in the election process at the cost of judicial function creating problems for the judiciary and also bringing a bad name with different allegations against the judicial officers and in reality they are having no hand in the aforesaid allegations but because of the involvement of other agencies i.e., the executive and law enforcing agencies. Without clear of contradiction I may say that the involvement of the judiciary in the conduct of the elections is the main contributory factor in the accumulation of the back log. Involvement of the judiciary in the conduct of elections is the main contributory factor in accumulation of the back log Recording of evidence through a Commission will help in expeditious disposal of case and which practice is now in vogue and in practice of the Islamabad High Court. 14. The other main issue is with regard to the clearing of back log of the cases in the Courts, in addition to the other measures which have been suggested and taken, the one is with regard to the recording of evidence in the civil cases through a commission. This process has now been initiated and is in vogue in the Islamabad High Court whereby in certain civil cases it has got the original jurisdiction to try the cases including recording of evidence and which by virtue of provisions incorporated in its rules and orders have provided for recording of evidence through a commission and which work is generally entrusted to retired judicial officers stationed at Islamabad. The Islamabad High Court in the exercise of powers conferred by Section 129 of the Code of Civil Procedure, 1908 read with Article 9 of the Islamabad High Court (Establishment) Order, 2007 (President's Order No. 7 of 2007) has made rules with respect to the practice and procedure for the exercise of its ordinary original civil jurisdiction called as Islamabad High Court (Original Side) Rules, 2008 has provided for the recording of the evidence in the civil suits through a commission vide Rule 97, which reads as follows: - "97. Commission to examine parties and witnesses: Notwithstanding anything contained in Order XXVI of the Code, the Court may, at its discretion, in any suit, at any stage, direct that the parties and witnesses be examined on Commission. The evidence recorded on Commission shall be read as evidence in the suit." Utilization of the experience of the retired judicial officers by appointing them as Commissioner for recording of the evidence and an example has been set now recently by the Supreme Court by appointing retired, honest and competent Hon'ble Judge of this Court to take benefit from his experience, which is both in the interest of the public and the Court in public interest litigation case Such necessary amendments can also be made in the relevant rules of the C.P.C. by making such provisions where the evidence is to be recorded through appointment of commission of retired judicial officers stationed at that locality, however, with the consent of the parties as that also burdens them with cost of commission which they will not to pay in case the evidence is to be recorded in the Court or some alternate arrangement in the deserving cases can be made for the payment of such costs by promulgating certain laws empowering the Government to pay for such costs like in the case of Public Defender Ordinance providing payment in criminal cases and this arrangement to a greater extent lessens the burden of the Courts and may also involve the retired judicial officers who are now would be having no chance of their re-employment in any tribunal as previously they were having and by this way their experience can he utilized for the betterment of the judiciary. An unprecedented example has been set by Hon'ble Chief Justice of Pakistan by utilizing the experience and services of retired, honest and competent Hon'ble Judge of this Court to lessen the burden of the Court and in the larger interest of the public in "public interest litigation". Grant of temporary injunction must be up to specific date 15. According to injunction/stay during the pendency of the case the Judges while granting stay or granting interim relief on the first date in the absence of the other party must attend to the facts and circumstances of the case and if the stay is unavoidable then the same may be granted till next date with specific provision that stay and injunction would last till a specific date mentioned in it with further provisions that after the aforesaid date the stay will not exist in the field leaving no ambiguity with regard to the interpretation of the order. At the time of institution of the suit/plaint, it be checked with checklist and also to see the question of jurisdiction and limitation before allotting it a number. 16. One of the reasons of the increase in the back log of the cases is that the judicial officers do not a attend on the first date of hearing at the time of institution of the case to see as to whether the case worth to be proceeded, by checking it with a checklist, and also to attend the question of jurisdiction and limitation before allotting it a number. Regular and periodical inspection is to he carried out to make the Judges vigilant and conscious 17. Regular and periodical inspection as provided under the High Court Rules and Orders be regularly carried out as that also keep the judges vigilant and conscious that the lapses en their parts may incur displeasure of superiors. By holding Courts in the jail with an aim of expeditious disposal of criminal cases 18. Occasionally in certain criminal cases which are heinous the trial is conducted in the jail if the number of the such trials is increased by holding it in the jail would also contribute towards the early disposal of criminal cases as most of the time the cases are adjourned because of securing the attendance of the prisoners before the Courts in view of the certain practical difficulties i.e., lack of transportation or distant location of the jail from the Court and heavy traffic, as in Karachi, and also the provisions of the jail manual not to take out a prisoner from the barrack before sun rise. For the remand of the under trial prisoners if an arrangement is made in the jail by deputing a Magistrate/Judge for granting judicial remand that would facilitate the granting of remand of the under trial prisoners and the difficulty as referred to above would not be faced.