IT is perhaps an unwitting consequence of the lawyers’ movement and the tussle between the executive and the judiciary, that even an ordinary person, not otherwise concerned with the law, has become familiar with the concept of the independence of the judiciary.
It is quite likely that this person is also familiar with the much-reiterated stance of the chief justice of Pakistan, and indeed of all judges, that only an independent judiciary is capable of acting as a check on the threatened or actual abuse of power by the legislature or the executive and is therefore imperative, not only for the preservation of rule of law in the country but also, and more importantly, for providing “complete justice” to all litigants.
Whilst it is impossible to argue with what the chief justice and the judiciary in general say about the independence of the judiciary, it is not immediately evident how this independence translates into a benefit for the ordinary litigant whose interest lies in the dignified resolution of his disputes rather than in upholding constitutional principles.
Because the sad truth is, that despite the much celebrated success of the lawyers’ movement and the euphoria over the restoration of the integrity of the judiciary, the average litigant, particularly one hauled up before the lower courts, remains a pawn in the hands of under-prepared lawyers, continues to suffer the anguish of unwarranted delay in the disposal of his cases and generally finds himself unable to trust the system that holds the power to determine his fate.
This apparent gap between the aspirations of the judiciary to provide complete justice and the actual experience of the ordinary litigant is not, however, due to the absence of effort on the judiciary’s part.
In the last three years, the National Judicial Policy Making Committee (NJPMC) has, under the leadership of the chief justice of Pakistan, not only successfully encouraged judiciary at all tiers, to reduce the extensive backlog of cases but has also taken the unprecedented step of providing judges and lawyers the opportunity to engage in dialogue from the platform of the National Judicial Conference held annually in Islamabad.
Laudable as the efforts of the NJPMC are, in being narrowly focused on the reduction of the backlog of cases, they remain limited.
According to international experts, when litigants are asked to rank, in the order of importance, different aspects of the quality of services delivered by courts, they rank the expertise of the judge, the quality of the decision and the supportiveness of the court staff higher than simply the timeliness of proceedings.
The reports published by the NJPMC, however, do not provide any information as to whether it formally surveys litigants in setting its priorities or whether or not it has implemented or even developed a mechanism for a holistic evaluation of services provided by the court system in Pakistan.
Such holistic evaluation of the court system would entail not only an appraisal of the quality of judicial decisions but also that of the system of court administration.
With regard to assessing the quality of decisions of individual judges, it is entirely plausible that the NJPMC may be concerned that in doing so, it may be interfering with the independence of judicial decision-making.
This concern, however, is negated by international experts who maintain that judicial independence does not rule out supervisory arrangements within the court system and whilst judges are supervising themselves and their colleagues with a view to self-improvement, (and even taking remedial action against individual judges where necessary) judicial quality and independence are, in fact, bolstered rather than undermined.
With regard to the apparent hesitation on the part of the NJPMC to assess the quality of court administration, there appears to be no adequate justification.
According to the European Commission’s checklist for promoting the quality of justice and the courts, a minimum criterion for assessing the quality of court administration is the ease with which litigants are able to access information regarding the working of the courts.
The NJPMC may therefore, at the very least, devise a method to ascertain efforts made by courts in this regard: do they sponsor helplines? Are they publishing information leaflets (in readily understood languages)? Are they designating staff to assist persons who may approach them? It is not presently clear whether the NJPMC engages in any such exercise.
If the NJPMC were in fact, to devise and adopt a mechanism for a more well-rounded assessment of the services provided by judges and court administrators, it would send a clear signal to the courts as to what is expected of them.
It would be able to set performance targets for them based on their actual rather than perceived capacity, assist itself in developing appropriate policies for the enhancement of the scope and quality of judicial services, and, most importantly, be able to identify gaps in the system.
It may then proceed to fill the gaps by formulating guidelines for the courts where required and by arranging trainings in conjunction with the federal and provincial judicial academies, geared specifically towards developing skills that complement the goals set for the courts.
If we are concerned about whether we may be overreaching ourselves in asking so much from the judiciary then we must remind ourselves that the fundamental purpose, in fact the raison d’être, of a judicial system is not merely to preserve its independence but to use it for the creation of a more just society.
We must also understand that independence of the judiciary in itself is not sufficient to create such a society unless the judiciary formulates clear, transparent and uniform policies with the specific aim of benefiting the litigant.
If the judiciary is able to achieve this, it will gain and, more importantly, maintain the trust and confidence of the ordinary litigant, which in turn, more than any constitutional guarantee, will form the ultimate bulwark against any future threats to its independence.
The writer is a barrister.