The debate in media on judicial reforms and performance of the judiciary has kicked lot of dust in Pakistani media quoting a figure of 1.8 million pending cases.

This paper is a comparative analysis of performance of Judiciary of two major South Asian countries ie India and Bangladesh vis a vis Pakistan and where do we stand. There is also a reference to the ideal Islamic state of Medina and the judicial system in the first Islamic model.

The ideal state of Medina established by our Holy Prophet Muhammad(Peace be upon Him) and his immediate successors was built upon high moral principles, where truth was supreme and evidence presented in the Qazi courts was of gold standard. The society transformed from a tribal orientation to a city state, where rule of law was supreme and Justice was delivered without favors or biases. Technically the state of Medina with approximately 10000 residents had its lower courts and higher court at one place. Everyone was part of a brotherhood of humanity and the leadership knew individuals like the palm of its hands.

As described by Dr Shamrahayu A. Aziz, the Medina Charter can be regarded as a remarkable contribution to the principles of modern constitutionalism, particularly in reference to the concept of the modern nation state that has multi-religious and multi-cultural subjects. In a modern sense, the Medina Charter formulated a form of constitutionalism principle by acknowledging the importance of having a limited government and by preserving, protecting and promoting human rights.

Presence of a lower court and high court for 10000 people in the state of Medina also gives us an idea of what should be the judge to people ratio for dispensation of timely justice. Now compare it with an average Pakistani district where total strength of a Session court is not more than 15 Judges and it is looking after the size of more than a million people.

South Asian states adopted the British system with three major layers of courts, lower courts, high courts and Supreme Court. A comparison of Pakistani courts with their Indian and Bangladeshi counter parts will help us in analysing, where do Pakistani courts stand.

As reported in Indian press, by 2015 the total number of pending cases in all courts in India was a whopping 30 million, pending cases in 2018 may have crossed 32 million; that is 15 times larger than Pakistan’s pending cases of 1.8 Million. If one looks at the population ratio, India is 6 times larger than Pakistan, so Pakistani judicial system is almost thrice efficient than India.

For Bangladesh, the Dhaka Tribune on 22 Dec 2016 report with the title ‘Justice Delayed’ stated that there were 3.2 Million pending cases in all the courts, this is almost double than Pakistan for a population which is 80% of Pakistan.

So Pakistan’s judiciary in South Asia may be the most efficient in disposal of cases.

In developed world, the story is no different, US President Trump has fought 3500 cases in the courts, some still pending and his lawyer Alan Garten had said in 2015 that this was “a natural part of doing business in the US “.As stated by Madeline Blaser in the Storify.com under the title “America’s Corrupt Court System”, the United States courts have millions of pending cases, has five per cent of the world’s population, 25 per cent of the world’s incarcerated people, and 50 per cent of the world’s lawyers (who account for nearly 10 per cent of the country’s GDP, an onerous taxation of American society).

Conrad Black while writing his article, “America’s Justice System Has Failed Us All” in Huffington Post in 2012 states, “American judicial system is wrong. Grand juries are a rubber stamp for the prosecutors; assets are routinely frozen or seized in ex parte actions on the basis of false government affidavits, so targets don’t have the resources to pay avaricious American counsel and are thrust into the hands of public defenders, who are usually just Judas goats for the prosecutors. The prosecutors poison the jury pool with a media lynching at the start; bail is often outrageously high, and prosecutions and ancillary proceedings drag on for a whole decade, all contrary to the Fifth, Sixth, and Eighth Amendments.

Coming back to Pakistani, our judicial system is affected by degenerating trends in our society and bad governance. There is a need to collect data on civil cases thrown out by civil bureaucracy due to indecision and procrastination as a large number of cases in the basket of judiciary have their origin in civil bureaucracy. For example, cases that can be addressed through departments and ministries and their service and dispute resolution tribunals find their way in the Judiciary due to cronyism and lack of trust in civil bureaucracy. Dispute resolution mechanism in academia, universities, corporate sector and businesses has failed and half of these cases land in the judicial system, adding to already loaded system.

At village and town level, the Panchayat system has almost collapsed and petty issues that can be addressed through this system also land up in courts. The opportunity provided to appellant and defendant is also exploited by parties and their lawyers, causing unnecessary delays.

The degeneration of society has affected the quality of evidence presented in courts; lying, cheating, forgery and deliberate deception has become very common, even in high profile cases involving white-collar crimes, this accentuates the already compressed time for prosecution and timely disposal of cases.

A report in the News in January 2018 highlighted the challenges faced by our higher courts. The superior judiciary including the Supreme Court and high courts of Islamabad, Lahore, Sindh and Peshawar are frequently inundated with petitions having political import. Their speedy adjudication consumes a colossal time of these courts. Chief Justice Saqib Nisar had earlier pinpointed the difficulties he encountered in dealing with other petitions by his brother judges when the apex court was busy for almost a year with the Panama case. He had stated that he was left with a small number of judges to do other judicial work and some of them have to be sent to Peshawar, Lahore and Karachi to take up other cases at these stations while others stayed in the Islamabad office.

I will conclude the piece with some thoughts:

The state must work to develop a just society based on truth and fair play; we have to cover a lot of ground.

The system of dispute resolution within Panchayat, civil departments, corporate sector and academia has to be strengthened to reduce the load of cases in our judicial system.

The individual and society and legal fraternity of lawyers are also responsible for delays in justice and speedy disposal of cases; the law must punish them for delaying tactics and subterfuge.

High profile cases of political parties and leaders, especially those involving White–collar crime need time and high quality prosecution, we may have to be patient and let the courts decide cases on merit.

Do trust the judiciary as it is the most efficient entity in entire South Asia, when compared with her peers. While the ideal state of Medina built a strong moral society, it ensured presence of judges at a ratio of at least one judge for 10000 people; we need to increase the number of judges in the system to dispense speedy justice.

 

The author is a freelance journalist.

adeelanaureen@gmail.com