Delayed justice: alarm bells ringing

Pakistan’s current judicial system is characterized by an unending delay in the disposal of cases.

According to the data available on the Law & Justice Commission of Pakistan’s website, more than two million cases are pending adjudication in the superior as well as district courts of Pakistan.

This figure does not include those cases which are pending before other tribunals such as special courts, semi-judicial forums and authorities.

The data shows that out of the total pending cases more than two hundred thousand cases are pending in the Lahore High Court alone, and fifty thousand cases are pending in the Supreme Court. Around 35000 cases are pending in the Sindh, Peshawar, Baluchistan and Islamabad High Courts collectively.

Similarly, the district judiciary in Punjab stands first with 1.3 million pending cases followed by Khyber Pakhtunkhwa where more than two hundred thousand cases are pending. In Sindh, the number of pending cases exceeds one hundred thousand. In Baluchistan, fifteen thousand cases are pending and more than fifty thousand cases are pending in the district judiciary in Islamabad.

In 2018, 1.9 million cases were pending which increased to 2.1 million in May 2021. A 0.7 million annual increase has been observed in the last four years.

The increase-flow indicates that the system has failed to deliver. The main reason for this failure, according to some experts, is the shortage of judicial officers, the unjustified holidays/strikes, unnecessary adjournments of cases and, moreover the jurisdictional and procedural complications.

In January 2018, former Justice Asif Saeed Khosa while heading a three-member Supreme Court bench highlighted that there were 1.9 million pending cases in the entire country with only 4000 judges.

“Even if the entire judiciary works day and night for 36 hours a day with 4000 judges, it cannot clear the cases,” he said adding that only one judge was available for 62000 people in Punjab and Khyber-Pakhtunkhwa. Commenting on the workload he also observed that one judge had a caseload of more than 660 cases in Punjab only.

It is surprising, despite having a conscious understanding of the fact of backlog, yet the supreme court, high courts and district courts judges, enjoy ninety, sixty and 30 days annual summer holidays and fifteen days winter holidays respectively, apart from other national holidays (mostly in the name of tradition set by their colonial predecessors – the majority of whom were not from this country).

Bar Associations/Bar counsels frequently call strikes. Administrative action of Courts or by the governments may lead to strikes. Sometimes, local bars' representatives observe strikes on their personalized trivial issues. Interestingly, the district judiciary has also started observing strikes in recent times. This rampant increase in strikes has been seen after the ‘restoration movement’.

The adjournment culture is a contributory factor to the delay. If a counsel thinks that he has no reasonable ground to make out his case or to defend the same, he seeks unnecessary adjournments as a tactic to prolong the proceedings. Normally, the cases are postponed by the courts themselves on account of workload.            

Due to the complex and lengthy procedure, a suit can be remanded back to the court of the first instance for its re-trial six times. The delay in certain cases can extend to decades. A grandson may be able to get the verdict in a suit which was filed by his grandfather.

Moreover, the USAID’s report on the Rule of Law Assessment, states: The courts are used to delay decisions to perpetuate a hierarchical social order and to protect vested or asserted interests.

During more than 75 years of judicial experience, only a few half-hearted attempts have been made to rectify the fault lines.

Some of these steps are worth mentioning here which were taken to ensure inexpensive and speedy justice and to cope with this crisis of abnormal delays.

For example, the Musharaf-led military regime took $350million loan from Asian Development Bank to implement the “Access to Justice Programme” in 2002.

Under this project, case-flow management techniques were taught to judges to facilitate the rapid disposal of cases to reduce the enormous backlog of court cases. However, the programme only added to the public debt without delivering any value to the justice sector.

In 2007, after the so-called revival of the judiciary, the restored Chief Justice of Pakistan made several promises of systemic reforms in the judicial system to repay their debt (due to the inefficient judicial system) to the nation.

Against this backdrop, the National Judicial Policy 2009 (NJP) was introduced ‘to address the perennial twin-problems of “backlog” and “delays” in the system of administration of justice.’  

On December 4, 2014, the Prime Minister constituted a Committee on Legal Reforms under PM’s Legal Reform Package to eradicate this menace.

At the same time, the Senate formed a Committee of the Whole on 19th May 2015, to consider “steps/reforms for providing inexpensive and speedy justice in the country”.

The thrust of NJP, 2009 and the recommendations of both Committees was only to introduce a shorter time frame for disposal of civil and criminal cases (without taking into consideration the procedural technicalities of delay and the abuse of law) to reduce the backlog at the level of superior as well as subordinate courts.

Pilot District Courts for speedy trial of civil and criminal cases, and Alternate Dispute Resolution (ADR) centres to minimize the burden of courts, were established in Punjab besides introducing amendments in the procedural laws as recommended by the Prime Minister’s Committee and the Senate Committee of Whole. However, these transitory arrangements did not prove beneficial.

These obsessive pursuits of ‘cosmetic reforms’ were performed in complete obliviousness, ignorance and omission of the historical, institutional and sociological factors that make the justice system anti-people, indolent and oppressive. Hence, these ‘judiciary-led’ and ‘donor-driven’ sporadic reform attempts could not prove helpful. The “champions of reforms” failed to bring any constructive change in the system to minimize the distrust and anxiety of an ordinary litigants.

On the other hand, justice is becoming exorbitantly expensive in terms of time and money. The seekers of justice are unable to afford the costly lubrication required to keep the functioning of legal machinery running (in their favour).

It would not be out of context to say that people have lost their interest and trust in this system which ostensibly has failed to respond to their genuine aspirations.

It is the need of the hour to depart from the inherited patterns; to review existing laws; and to update and transform the justice system in the historical and sociological context of Pakistan.

It is also essential for the Bench and the Bar to take immediate and sincere measures with better informed interventions/actions to transform the soul and skeleton of this congealed justice system to ensure the dispensation of actual justice.

This is the worst example of human rights violations and an ultimate outcome of the procrastination culture that two brothers had been acquitted of their death verdicts by the ‘kind indulgence’ of the Hon’ble court, ironically, after the execution of their death sentences.

Recently, an old man died with 'happiness' when, after 18 years, he heard the news that he had won his case. This reminds me of Franz Kafka’s short story titled ‘Before the Law’, where a seeker of justice wanders in the complex procedural corridors of the legal system and dies before he is granted permission to access justice.

It is a story of a man who went to court for relief. He was interfered with by the gatekeeper. He tried to win him over by offering his possessions and valuables, to access the law. But he was put to wait on one or another pretext. He grows old waiting to have recourse and passes away without access to the court. Before he dies, the gatekeeper cold-heartedly shuts the door by saying that this door was meant for him and since he was now dying, therefore, there was no need to keep the door open.

This story leaves one wondering whether the door of systematic reforms has already been shut or if there still is some light coming in through cracked windows.