23 Nov 2017, 5pm - 6pm | Harold Lee Room, Pembroke College
Image credit: The Wazir, via Flickr, used under a creative commons licence - https://creativecommons.org/licenses/by-nd/2.0/
The independence of Pakistan in 1947 from the British Raj left behind a colonial judicial legacy. In addition, the creation of an Islamic State brought with it its own interesting questions of judicial and constitutional interpretation. Justice Shah will focus on the challenges and opportunities that accompanied these transitions. Being a pioneer in issues relating to human rights, the rights of minorities and environmental law in Pakistan, Justice Shah is ideally placed to speak about the challenges of instituting change in a judicial system like Pakistan while balancing the need to effectively deliver justice.
This seminar is co-hosted with the South Asian Law Discussion Group.
Justice Syed Mansoor Ali Shah, Chief Justice, Lahore High Court, Pakistan
Justice Shah was elevated to the bench in 2009 and has since authored several judgments on constitutional law, human rights, administrative law and environmental sustainability. He takes a keen interest in judicial and administrative reforms and has spearheaded case management and court automation systems at the Lahore High Court and in the District Judiciary in Punjab.
Justice Shah completed his law degree from the University of Punjab in Lahore. He also has a Masters in Law from the University of Cambridge, and a Masters in Economics from the University of the Punjab. He is an accredited mediator from CEDR, London.
WHY did the Chief Justice of India (CJI) recently break down in tears? Because of the huge pendency of cases before the Indian courts. It is not clear what the real figure for pending court cases is in India but they are certainly over 20 million. By one reliable estimate, they may number between 26m and 27m. But what made the CJI tearful is the realisation that it may now be an impossible problem to solve especially in view of the constant avalanche of new cases.
Why is delay in court cases a problem? Firstly, justice is only possible if your case is heard and decided. This is the minimum requirement of justice. In actual fact, most people are looking for closure of their disputes, and a decision, even if it goes against them.
Secondly, justice delayed is justice denied. Anyone who has any experience with the judicial system understands the destructive and corrosive effects of justice delivered after many years of delay.
Thirdly, expeditious justice is both a fundamental right of every citizen under Article 9 and a fundamental responsibility of the state under Article 37(d) of the Constitution. If the state (ie government, judicial system) cannot deliver expeditious justice, it is a failure of its constitutional obligations.
Justice is only possible if your case is heard and decided. This is the minimum requirement.
Is speedy justice possible in Pakistan, or should Pakistani judges also be tearful like the chief justice of India?
Understanding the numbers: On the basis of the official statistics available up to Dec 31, 2014, there are 1,754,420 cases pending in the Supreme Court, Federal Shariat Court, high courts and the district courts in Pakistan. The breakdown is as follows: Supreme Court (22,764), Federal Shariat Court (1,014), Lahore High Court (164,683), Sindh High Court (70,046), Peshawar High Court (27,541), Balochistan High Court (5,279), Islamabad High Court (14,500), Punjab district courts (1,161,524), Sindh district courts (127,314), KP district courts (145,203), Balochistan district courts (9,458), and Islamabad district courts (27,858).
In addition to these cases, on the basis of official statistics available up to Dec 31, 2013, there are 123,531 pending cases before the various special courts and tribunals (eg anti-terrorism courts, national accountability courts, banking courts etc.). Therefore, the grand total of all cases pending before various courts is 1,900,715 and even if the statistics are updated, it is most probably around 2.1m cases.
A more detailed scrutiny of the statistics reveals as follows. Firstly, the delay in case disposal is further complicated by the avalanche of new cases. For example, the Punjab district courts in 2014 disposed of 1,885,534 cases but there were 2,037,110 fresh cases instituted before it. Another example is the Lahore High Court which in 2014 disposed of 152,776 cases but there were 144,422 new ones instituted.
Secondly, pendency is unevenly distributed across Pakistan and is not necessarily proportionate to size and population. For example, there are more cases pending in the Islamabad High Court (14,500) and Islamabad district courts (27,858) than in the Balochistan High Court (5,279) and the Balochistan district courts (9,458). Also, there are more cases pending in the KP district courts (145,203) than in the Sindh district courts (127,314).
Thirdly, even within each province, there are more cases pending in certain districts than in others.
Fourthly, even within each high court, there is a pendency concentration of certain kinds of cases. For example, in the Sindh High Court, a major portion of pending cases consists of civil suits and writ petitions.
Fifthly, there is a pendency concentration in certain special courts and tribunals. For example, there are 43,130 and 13,954 cases pending in the banking courts and the appellate tribunal inland revenue respectively as compared to 2,505 cases in the anti-terrorism courts.
Possible solutions: Unlike the over 20m cases pending in the Indian courts, a two-million case pendency in the Pakistani courts is a solvable problem. But beware, 15 years from now, this pendency can easily reach 5m on the basis of the current avalanche of new cases.
Although numerous solutions can be proposed, the following suggestions are critical.
Firstly, the solutions to the problem of delayed justice must come from the judiciary itself. The judges are the foot soldiers in this battle against the pendency of cases, and the feedback regarding the problems faced by them in the management of this is critical to any solution. Part of this solution is an indigenous management strategy regarding case pendency which is both relevant and practical to Pakistan and not to England. We must abandon our colonial mindset.
Secondly, the problem is: there are too few judges chasing too many cases. Moreover, there is a concentration of case pendency in certain courts, in certain territorial areas and in certain categories. True, there should be a general increase in the number of judges in all courts. But as the above statistics show, some courts need more judges than others. Therefore, all current judicial vacancies need to be filled and the number of judges should be increased in specific high courts and specific district courts with high-case pendency.
Thirdly, it is not possible to reduce the delay in all pending cases. Therefore, in the short and medium term, pendency in cases of public priority should be targeted for reduction eg older cases pending since before 2000, terrorism cases, criminal cases involving persons in custody, women and minority rights cases, selective commercial cases, tax cases etc.
Fourthly, simplification of the law relating to case procedure, especially the law of evidence and reform of the appeals process, is needed. This is where the legislature must act.
As compared to a judicial commission on the Panama leaks, what is more urgent is a judicial commission on the issue of delayed justice. Trying to solve this problem now may help our future chief justices and judges celebrate instead of shedding tears over the Pakistani judicial system.
The writer is a lawyer.
Published in Dawn, May 3rd, 2016