GOOD governance requires strengthening the rule of law and ensuring access to affordable justice, especially to the poor who suffer harassment at the hands of public officials and are denied their basic rights. With state institutions becoming dysfunctional the poor feel disempowered, and rely more on informal forums, despite local elites managing to manipulate such interventions.

More than 90pc of cases are not settled before trial and are litigated in court. A high proportion of cases enter the appeal process, with liberal adjournments and non-adherence to the civil procedure code causing delays. This owes to the dilatory ploys of lawyers with the judiciary playing an enabling role by not imposing costs and denying adjournments. These weaknesses are compounded by the lack of a culture of voluntary compliance with decisions in most cases — the system is thus failing as a social deterrent.

It is certainly reassuring that the superior judiciary is asserting itself to ensure equality for all before the law, thus gaining the public’s trust that the people are protected from the excesses of state functionaries. But, the bulk of the population has to deal with the subordinate judiciary, where key areas of concern include corruption and lack of competence. Hence the distrust in the lower judiciary.

On an average our courts take three years to resolve a commercial dispute.

One sympathises with the courts on the point that the prosecution and police, that should be fiercely independent, not only function on the whims of the government but also epitomise incompetence. Simi­larly, whereas there are complaints that the dockets of the superior courts have a significant percentage of rent and property-related cases, often resulting in stay orders, this is partly owing to issues of legislation and the absence of a system guaranteeing titles.

A common complaint is that judges have a heavy workload. But then this could partly be addressed through internal reforms. For instance, the judicial system fails to discourage frivolous litigation/appeals and grants open-ended stay orders. However, a major reason for this is that the government, which is the biggest offender, appeals against the rulings against it because no one is prepared to accept responsibility for not having appealed.

For example, in tax-related cases the demands of the Federal Board of Revenue can be excessive (if not illegal at times) to meet targets, and time-bound stay orders may encourage state arbitrariness.

For economic development, legislation, its predictable application (anchored in the twin foundations of equity and certainty) and the effectiveness and efficiency of the judicial system to enforce contractual obligations in a timely manner are important.

Unfortunately, our courts, on an average, take three years to resolve a commercial dispute compared with less than half this time in other jurisdictions. More­over, complaints abound that instead of relying on evidence and arguments, decisions are seemingly tempered by a desire to be popular, resulting in a portfolio of jurisprudence made up of conflicting decisions.

These weaknesses adversely impact growth through reduced economic activity. Firms are forced to diversify into operations that are not their core competence thus the increasing costs, and inefficiency and uncertainty of investment. Since it takes years to get disputes resolved through the courts, it incentivises litigation. Contract violators gain by getting a case stuck in the court queue — with no statutory adjustment for inflation when the case gets decided.

This discussion hints at issues afflicting the judicial system, governance, case-load management, low disposal rates, skill set, inadequate allocations for non-salary inputs and laws not translated into Urdu (leaving much of the population unaware of its rights). This writer is of the view that the solution for reducing litigation and delays and making the system more efficient and effective is not simply more judges. A brief set of proposals is presented below.

These should precede the determination of the need for additional judges and budgets, although, admittedly, the factors mentioned and the implementation of the proposals are inextricably linked. For example, i) judges adjourn cases because of their heavy docket; and ii) speedier adjudication of cases will reduce the lives of stay orders. Here are the proposals.

Discourage frivolous litigation by imposing court costs and levying hefty charges on those seeking frequent adjournments, while recognising that government systems and the behaviour of its functionaries also need to change.

Judges should encourage written arguments and limit the time for oral arguments. The transcripts of all court proceedings and making them available to all parties will reduce time wastage.

Small causes courts should be settling minor disputes through summary procedure instead of allowing them to be long-drawn-out. The alternative dispute resolution should be strengthened (admittedly, this would work only if litigation is made expensive) with civil, criminal and commercial cases assigned to different courts based on their relevant expertise and the experience of the judge. Arbitration should be encouraged for commercial cases, saving court time on routine matters.

Review of contempt of court laws and the offence of scandalising/maligning a judge, since the concept is archaic and stifles free speech and criticism of court processes. At a personal level, judges have no right to a higher level of protection than any other citizen through defamation laws.

Institutionalising regular inspections, performance monitoring and investigation of complaints against subordinate courts by the higher courts and publishing these in annual reports. But then the apex court is today controlling appointments, regulation and discipline all rolled into one, and does not appear prepared to tolerate a role for anyone else. This suggests the need for a judicial ombudsman.

There is need for systematic and periodic reviews since unpredictability is caused by conflicting judgements, without an overarching ruling as in other common law jurisdictions. The resulting confusion incentivises corrupt practices. Therefore, similar cases should be clubbed and heard by the same bench while there should be clear guidelines for the subordinate courts.

Finally, the current system favours the lawyers and lionises judges, inducing protracted litigation with limited benefit to the ordinary public; political cases take precedence over ordinary civil and criminal cases. Without necessary corrective actions it will be difficult to elicit support for additional resources.

The writer is a former governor of the State Bank of Pakistan.

Published in Dawn, November 11th , 2014