Internal reform

08 Apr 2018

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IT has been reported by sections of the media that the chief justice of Pakistan, whilst hearing a suo motu case on excessive fees charged by private medical colleges, said that suo motu actions are taken when departments don’t deliver. The honourable chief justice had also said that he would continue to visit public hospitals in order to protect Pakistanis’ fundamental rights

Interestingly, a month or so before, a group of lawyers instituted a petition before the Supreme Court raising the same issue of departmental failure to deliver and the citizens’ fundamental rights being violated as a result. However, these lawyers weren’t highlighting deficiencies in medical institutions, governmental departments, local governments, or private educational institutes. They were talking about the judiciary itself.

The petition focused on the need for judicial reform, and impugned the current judicial setup as an infringement of the fundamental rights of Pakistani citizens, particularly their right of access to justice. It was taken up for hearing in February when notices were issued to the high courts and the provincial governments to file their replies within three weeks. To date, only the Islamabad High Court is reported to have submitted a reply, and despite the deadline having passed, purportedly no future date has yet been fixed for this petition.

The courts may be well-meaning but charity must begin at home.

This petition was filed around the same time when the chief justice was taking several suo motu actions, and was seen to be pursuing such matters to their logical conclusion. For example, in February 2018 and beyond, the chief justice took suo motu notices of the alleged encroachments of the F-8 playground, advertising by provincial governments with public funds, a funeral procession passing through raw sewage, and Pakistanis with allegedly ill-gotten money in foreign accounts.

This petition was preceded by a variety of suo motu actions in relation to milk prices, lack of ventilators in public hospitals, the Axact fake degree scandal, the Naqeebullah Mehsud tragedy, as well as revenge rape cases. In 2017 alone, it is reported that not less than 37 suo motu actions were taken by the Supreme Court with regard to a variety of matters and a multitude of institutions.

However, whereas all those suo motu actions were pursued with laudable swiftness, the case for judicial reforms was not. And this is what surprises many.

After all, with what moral authority can the judiciary censure others when so many questions are being asked about its own ability to administer justice? How will it be possible for the judiciary to condemn medical institutions for fee hikes, when the amount of time and money required for pursuing litigation itself is beyond the reach of the vast majority of Pakistanis?

How would it be able to reprimand government departments about corruption and unethical practices, when the average litigant complains about the very same thing when it comes to the courts? And finally, how is it possible for the judiciary to direct others to deliver the goods, when there are allegations directed at the institution itself about inefficiency, a perceived lack of capacity or ability, long delays, and unending technical hitches delaying delivery of justice?

This is certainly not to say that the judiciary is beyond repair, or that it should not take suo motu actions in relation to other institutions. On the contrary, the judiciary is well within its rights to do so. However, its ability and authority to direct a third party to comply with the law and ensure delivery of service cannot be seen in isolation. The judiciary derives its authority not through the barrel of a gun, the speeches of a politician, or even the ink of its own pen. To put it frankly, the judiciary derives its authority from the Constitution, and thereafter, from the legitimacy and respect it is afforded by citizens, and the perception of right that they attach to its actions.

And no matter how well intentioned any institution is, or its chief justice is, unless that institution starts its battle against corruption, inefficiencies and lack of delivery from within, the public will find it difficult to bestow upon it the moral authority it needs to enforce it on others. In short, charity begins at home, and in the opinion of many, the time for such charity has arrived.

As such, the petition provides an unparalleled opportunity to the Supreme Court to show its commitment and urgency with regard to judicial reform. In doing so, the court would not only augment its moral authority to take on delinquent institutions, but also silence its critics once and for all. And with so many aspects in so many institutions to improve, there is little time for procrastination, and much reason to act. Will the judiciary take up the challenge? Only time will tell.

The writer is a Karachi based litigation lawyer.
basil.nabi@gmail.com
Twitter: @basilnabi

Published in Dawn, April 8th, 2018