ALTHOUGH the National Judicial Policy (NJP) aims to clear the backlog of cases in the judiciary, ensure the latter's independence and eradicate corruption, doubts have been cast on its effectiveness.
Would providing a timeline for the disposal of cases, setting up complaint cells and repatriating lower judicial officers from executive posts be sufficient to meet the goals?
Firstly, alongside repatriating judicial officers, bailiffs and process servers should also be repatriated forthwith. Adjournments cause considerable delay. It is hard to believe that the existing process serving agency, which is engaged in judicial work, would make this dream come true, especially when there is scarcity or non-availability of even motorcycles to serve summons in far-flung areas.
Summons become more problematic when they are to be served in another district in which case fax/Internet, if employed, can expedite the proceedings. Each officer in charge of the process serving agency could send and receive summons through email. Summons could also be scanned or faxed without any loss of time. Presently, even summons issued by a high court can take months.
Secondly, the vacation issue has not been addressed by the new judicial policy. Each year the judiciary schedules vacations in August and during holidays in December in which only a limited number of judges stay back to deal with urgent matters. Therefore routine work is greatly affected. To show its commitment to a vital national cause, the NJP had to sacrifice yearly vacations. Likewise, it failed to take into account how to deal with ordinary leave availed by the presiding officers. It is believed that when a judge is on leave, for whatever reason, cases fixed on that day are pushed back by a month or so. The NJP should evolve guidelines that in the case of absences or other delay-causing situations, cases should be entrusted to other judges to obviate the resultant delay.
Thirdly, the proposal of a distinct and separate Personal Evaluation Report (PER) for judicial officers by reporting officers and the countersigning authority leaves matters vulnerable to bias. Judgments and orders should be reflective of the judges' competence and honesty. Ironically, judges are still evaluated, like other executive officers, through government-notified PER proforma printed for all civil servants.
Only the blue-eyed, who are aware of the Pakistani service culture, get promoted, which ultimately results in injustice within the system. The NJP had to deal with this in order to make it reformative on the one hand and deliver to each according to his capacity and competence on the other. After all, judges are also human beings in need of redressal of their grievances.
Fourthly, it is admirable that a timeline for the disposal of cases has been provided to clear the backlog; however, one major sector has gone unnoticed. More often than not cases that have been decided are remanded back to the trial or lower appellate court on minor technicalities for fresh decisions or for recording evidence which the appellate court deems expedient for a just adjudication of cases.
However, the reality is quite different. Cases are remanded back on mere technicalities, and litigating parties languish for years due to unwanted remand orders. This aspect needs an earnest approach. A trial court will commit errors when there is a stick dangling over its head. A minor irregularity or illegality is sufficient for an appellate court to admit an appeal of a party which is otherwise at fault.
Fifthly, it would have been ideal had accountability started from the top when a majority of our senior judges were tested during the recent judicial crisis. The NJP deals least with the strengthening and working mechanism of the Supreme Judicial Council. On the contrary, the NJP has established a cell to curb corruption in the judiciary. Admittedly, it is a problem but more important than this is incompetence. One competent judge is far better than 10 incompetent judges. Therefore, special attention should have been paid to recruiting competent men in the judiciary. The policy does not point out how to recruit competent judges or to resolve the matter of incompetent ones.
The establishment of a separate cell or system to deal with incompetent judges at all level needs to be looked into. Strangely, we have had at the high-court level a member-inspection team already working to prevent corruption in the judiciary. One wonders if renaming the same body will deliver the results when there is no new system in place to treat this malaise. It is hard to believe that a competent judge would work efficiently when his/her right hand, the ministerial staff, is incompetent.
The process of selection has never been transparent. It is widely held that only those can get judicial employment who have connections within the judiciary. The NJP should have evolved a recruitment policy in this regard. In order to deal with incompetence, we need to revamp the curriculum of the Judicial Academy in Islamabad in order to impart quality training not only to lower judicial officers but also to those of the higher judiciary. This should be mandatory for elevation to the Supreme Court. In order for the NJP to become more effective in meeting public demands, we need constant research to discover the flaws in the system which can only be possible, if we keep the policy open to new input.
It has to be consistently adjusted, readjusted and made accommodative to address new issues and remove loopholes in the existing policy. The National Judicial Commission
should hold monthly meetings in order to do so. If the fate of the policy is left in the hands of low-ranking officials as in the past, the chances of any positive change making a difference are slim. This was rightly noted in a Dawn editorial, “The new judicial policy could radically alter the legal landscape and remove a major source of grievance for the people if it is implemented with sincerity.”