ISLAMABAD: Chief Justice of Pakistan Anwar Zaheer Jamali has stressed the need to address what he referred to as “the crisis of implementation”, which had rendered laws made in certain areas meaningless.
“There is little point in having fine laws when the organisations responsible for [their] implementation are essentially dysfunctional,” he said in an address to the Senate on Tuesday.
This was the first time in the country’s parliamentary history that a chief justice had appeared before parliament to speak on matters relating to the dispensation of justice.
The CJP was invited to speak to the Senate by Chairman Raza Rabbani as part of an ‘intra-institutional dialogue’. He presented his views before a committee of the whole house when it met to discuss measures to provide inexpensive and speedy justice to people.
The CJP observed that a lack of administrative and technical capacity, the misallocation of already scarce resources and bad administrative practices, including corruption and criminality, were undermining the quality of judicial services.
He noted that the constitution set out a fine balance between different state institutions that must be observed by all state actors. “In implementing our respective constitutional mandates, it implies that state actors need to cooperate, and at the same time, exercise restraint to enable others to perform their responsibilities,” he remarked.
But he later justified the superior judiciary’s intervention in administrative matters, saying, “While we recognise that implementation is primarily an executive function, it becomes a matter of judicial consideration when rights are denied or violated, at which point the judiciary is compelled to order administrative reforms.”
He pointed out that one consequence of weak implementation was legal exclusion. “It has been estimated that the state’s justice system only caters for about 20 per cent of disputes and the rest are dealt with by an unregulated, informal justice systems, such as jirgas and panchayats,” he said.
The CJP underlined the need to proactively ensure that justice and security reached out to the poor and most vulnerable. “Our approach has to be output-based, focusing on impact. Legal inclusion must therefore be a national target that we will try to pursue under the sustainable development goal relating to access to justice, but parliament and governments must proactively move to address such systemic dysfunction.”
He said the rule of law was ultimately about the right to life, wellbeing and dignity of citizens, which the constitution recognised as inviolable rights.
“It is for the parliament to check the quality of rule of law and justice services and take necessary steps to ensure the enforcement of constitutional imperatives and ideals supported by the judicial branch that is independent and objective in its examinations, interpretations and findings.”
The CJP also addressed four suggestions, which were earlier put forward by Senate Chairman Raza Rabbani in his welcome address. The proposals dealt with the questions of: abolishing revisional jurisdiction in civil and criminal procedures; doing away with intra-court appeals at the high courts; replacing cognisable and non-cognisable offences with arrest-able and non arrest-able offences; and, the introduction of scheduling orders for trials.
Point by point, the CJP said that there were no problems with the system currently in vogue to necessitate the abolition of revisional jurisdiction. Regarding intra-court appeals, he said that if this were done, matters that could be handled and addressed at the high court level would have to be brought to the Supreme Court, increasing the volume of cases before it and increasing the cost of litigation for petitioner who would then have to come to Islamabad to seek justice.
On replacing cognisable and non-cognisable offences, he said parliament should study the advantages and disadvantages of doing so, adding that the courts would be bound by the collective wisdom of parliament.
He also rejected the idea of scheduling orders, saying that delays were caused by various factors and that there was nothing wrong with the system.
Published in Dawn, November 4th, 2015