NATIONAL JUDICIAL POLICY 2009

NATIONAL JUDICIAL POLICY, 2009 <!--[if gte mso 10]> NATIONAL JUDICIAL POLICY, 2009 SOME SUGGESTIONS By Mr. Justice S.A. Rabbani, Former Judge Sindh High Court & Federal Shariat Court National Judicial (Policy Making) Committee has recently announced National Judicial Policy to streamline the Judicial System in the country and make it responsive to the present day requirements of the society. About this policy, media is giving high hopes to the simple people and these high hopes are bound to- beget big despair with the passage of time. This is an addition to the attempts made during the last six decades in the country to solve the problems faced by our system. The history shows that such attempts never succeeded in solving the problems but, on the contrary, aggravated them or created new problems. Let us see why problems with our systems are not solved despite such attempts. The main reason is lack of depth in thought. Our approach is always-superficial. We have inherited almost all the systems from our British rules with a belief in their perfection and infallibility. We always start with the hypothesis that the system is free from all defects but the fault lies with the implementation and the people doing the job. This is the place where we lose the path leading to the solution of the problem. A systematic scientific analysis of the problem is necessary to find out a correct solution. First the problem should be identified clearly. Next is the stage to ascertain actual factors causing it. We can never solve a problem without removing the actual causes and a substitution for the actual reasons of the problem, unknowingly or for any motive, will always lead to a farce. After the real causes of the problem are identified clearly comes the stage of finding ways to remove said causes and when the real causes of the problem are removed a solution of the problem is achieved. The policy reflects that delay in disposal of judicial cases is the problem addressed and the policy has been devised for expediting trial proceedings. Shape and manner of the policy suggests that the underlying principle was that problems could be solved by issuing orders and directions. An attempt has been made to curtail delay in various categories of cases by specifying period for disposal of cases of each category. Unfortunately, the approach is not realistic. If problems could be solved on merely by issuing orders and directions, all problems in the world would have been solved by now. In the past, also, attempts were made to expedite disposal of cases by issuing orders to dispose of cases within the period specified. Since there were orders of the superior authority, the lower courts made compliance by disposing of the cases in haste without completing the legal and judicial requirements and consequently, the cases had to suffer further delay after they were remanded by the Appellate Courts. A long list of the categories of cases has been given in the policy which have been given priority for early disposal, but there is no mention of priority between these categories. When a number of cases are to be given priority, there is no priority practically. First point of the policy is `independence of judiciary' but it has been taken merely in the meaning of `separation'. Separation of judiciary from the executive may be an important step towards independence of the judiciary, but there are other important requirements also without which this independence is imaginary. Most important is power to appointment of Judges at all stages. This is totally in the hands of the Executive. Procedure of appointment of Judges, especially at the apex, laid down in the Constitution is the most serious impediment to the independence of judiciary. On one side, the Constitution envisages trichotomy of State power and three separate organs viz. the Legislature, the Executive and the Judiciary. On the other, it makes the judiciary subservient to the Executive "and gives the latter powers of appointment in the judiciary, including its head viz: the Chief Justice of Pakistan. The Constitution mentions the President as the appointing authority of the Judges, but by virtue of Article 48, the President is bound to act on the advice of the Prime Minister. Thus the Prime Minister, Chief of the Executive, is appointing authority of the Chief of the judiciary and other Judges and in case of the appointment of Chief of the judiciary, the Prime Minister is not bound to consult anybody else. Heads of the Legislature viz. the Speaker of the Assembly and Chairman of the Senate are not appointed by anybody but are elected by their own peers. Head of the Executive, the Prime Minister, 'is also elected to the appointment by his peers. Why then the Head of the judiciary be appointed by Head of the Executive or even by the President when he is more powerful than the Prime Minister. Equity demands that the appointment of Judges and the Chief Justice be left to the Judges themselves. Appointment of subordinate Courts Judges is in the hands of Provincial Executive. Out of courtesy, sometimes, the Provincial Governments give a role in such appointments to High Court, but this is courtesy and not legal authority of the judiciary. The judiciary has to be thankful to the Executive for this courtesy. Financial independence is the real independence. Perhaps, the Constitution makers were not very serious about the idea of independent working of the judiciary. They were sensitive to the independent working of the Legislature and they ensured their financial independence by introducing Article 88 providing for a Finance Committee of each Legislature to control its finances. The Executive was given control of the finances of the judiciary. A similar provision for Supreme Court and each High Court for control of their approved finances was equally justified. The Executive often delegate such powers to the courts and the courts are to be thankful to this act of kindness of the Executive. Independence of our judiciary can be gauged by the fact that it cannot choose its Court dress and decide what it should be. One army dictator ordered that Judges shall sit in courts wearing black `sherwani' and the Judges adopted that Court dress in compliance with the orders and continued it till another army dictator ordered that black coat and tie shall be the Court dress. On this order, judiciary bowed to comply with it. Independence of judiciary demands that it should, at least, be in a position to make a decision about the Court dress. Misconduct is the second point discussed in the policy, but it is limited to the aspect with reference to early disposal of cases only. An action against the Judges violating the code of conduct by way of failure in early disposal of cases has only been considered a suitable remedy of the problem. This is obvious a too narrow view of the situation and an imaginary solution of the problem. Eradication of corruption is the next point considered in the policy. The judiciary itself is to blame for branding the subordinate judiciary a corrupt area, although other areas are also not completely free from it. If the clerical and the office staff of the subordinate judiciary is the source of blame, such staff at higher stages is also not free from the menace. With the mindset, the first idea under this topic came as code of conduct for subordinate judiciary. The subject of `eradication of corruption' has been dealt with an assumption that the only creature in the judiciary that may be involved in corruption is a member of the subordinate judiciary. Various ways have been suggested to find out cases of corruption in them and to take actions, disciplinary and legal. Nepotism and favouritism have also been mentioned as form of corruption, but it has not been noticed that this disease is more prevalent at higher stages where people are elevated from the Bars and they have to face, from the Bench, their friends, colleagues and seniors. Till the members of the subordinate judiciary are treated as a class that needs strict supervision like that needed by school boys or criminals, the image of the judiciary as a whole can never improve. Reframing from condemning the subordinate judiciary as a class can only bring respect to the higher judiciary. They cannot command respect by lowering the respect of the subordinate judiciary. Corruption is a disease of our society as a whole and it always flourished in a society devoid of rule of law. Creation of a mindset of the society sensitive to rule of law is the most important requirement to defeat this menace. The steps suggested for eradication of corruption in the policy have mostly been in practice in some form and they failed in solving the problem in the past and will not prove better in future. Corruption within the meanings of graft and bribery is a criminal offence punishable under the law but the inanities of the relevant laws have made mockery of justice. If this crime is committed in a court, however high, within the views of the Judge or Judges, they cannot award punishment for the offence, to the offender. Short term measures both for criminal as well as civil cases, given by the policy reveal, that delay was being caused in disposal of these cases merely because no time for such disposal was fixed through orders and directions, If the solution of the problem was so simple it could be solved long ago. The long term measures listed in the policy do not refer to any specific problem. Some are about prisons. One of them is non-production of undertrial prisoners before the courts. It has been assumed that cause of such non-production is only shortage of resources. On the spot, it may be seen that in most of the cases there are other causes. Non-production of prisoners before trial courts is a problem that has aggravated with time. One abrupt increase of the problem emerged with the Law Reforms (Amendment) Act, 1976, when committal enquiry was dispensed with and the Sessions Court was degraded to the level of a Magistrate. The main cause of this problem is that the trial courts have no effective legal powers to punish the police or prison staff for disobedience beyond issuing notices, making complaints to their departments or filing complaints before concerned Magistrates. High Courts approaching the Provincial Government for funds and finances will not solve the problem because the decision will be in the hands of the Executive. Where then be the independence of judiciary. The solution is legal powers of control of finances once approved in the budget, on the pattern of Legislature. Similarly full exclusive role and authority of courts, under a law, in respect of appointment of Judges, is an essential requirement of the independence of judiciary. History reveals that our problems are not solved despite repeated efforts and measures taken for their solution. The reason is that either unknowingly or for saving some tradition for some interest, we substitute some less harmful causes for the real causes of the problem. For instance, about the problem of delay in disposal of cases, we ignore the real cause and substitute shortage of the Judges and facilities as the main cause of the problem. We always recommend increase in number of Judges. The number is increased but the delay remains a problem. Whenever number of Judges is increased, there is negative effect on standard and quality and on decorum and dignity. Corruption also gets more chances with more persons in the field. The long term measures should include initiating amendment in relevant laws to empower the judiciary itself in respect of appointment of Judges at all stages and its administration. An amendment be brought in the Constitution, on the pattern of its Article 88, to empower the Superior Courts to control their finances. A law is also needed to lay down specifically what is required of a Judge at any stage, beyond length and quality of practice as an advocate. The Constitution and the rules simply lay down the eligibility for the job. It has been assumed, without any logical or factual basis, that good practice as an advocate is most suitable quality for appointment as a Judge. Since the qualities making a good Judge and making a good advocate are at variance with each other, except knowledge of law and power of expression, a very good advocate can prove to be an appallingly bad Judge. For a Judge, understanding of law is more required than knowledge of law. For knowledge of law, there are books and advocates to guide him. What is most required of a Judge is a capability to make decision at a moment when it is needed and without loss of time. This does not mean capability of writing judgments or orders. Unfortunately, a majority of Judges lack this quality and this is one of the most important causes of delay in disposal of cases. A test for this quality is essential at the time of all appointments to the position of a Judge. A person having this quality can save a lot of time from being wasted. We can solve a problem only if we are not shy to the actual causes of it and if we have courage to remove said causes.