Back to basics

08 May 2012


-Illustration by Faraz Aamer Khan.

The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world.” – Bleak House by Charles Dickens

If an outside observer were to look into the reasons behind the persistent delays in the court system of Pakistan, he would scarcely know whether to laugh or to cry. I say ‘outside observer’ for the simple reason that actual practitioners of law are too acclimatised to the current state of affairs. Over-exposure has rendered them jaded and thus ill-equipped to appreciate the most fundamental flaws within the system.

Note that in Karachi, the commercial hub, largest city and primary trade route for the country, it is not uncommon for lawyers to advise clients that a simple claim for enforcement of a contract could take up to or over eight years to resolve. This is of course without taking into account the execution stage of the proceedings (at which the decree is effectually enforced) or the stages of appeal. All in all, it can easily take up to 20 years (give or take a decade) for a civil case to be conclusively determined.

This problem cannot be overstated: I have no hesitancy in asserting that there are numerous cases currently pending in Karachi, which would put to shame Dickens’ dystopian portrayal in Bleak House. Yet there persists a myopia which prevents legal practitioners from seeing what is plain before their eyes: that the system is broken. There is, effectively, no access to justice for the vast majority of society. Public confidence in the legal system as a means of resolving disputes is plummeting, and unless drastic measures are taken to arrest this decline, the outcome for our society and our polity will be alarming.

Let’s maintain our focus on the Province of Sindh for a moment. The excuse commonly bandied about to explain the outrageous delays here is: “the huge backlog of cases.” This is of course, no reason at all. “The huge backlog of cases” exists for one simple systemic reason: there are more criminal and civil actions generated within the Province of Sindh than there are Judges to handle them. The solution seems elementary: increase the number of Judges.

Knowing this, it may surprise you to discover that the number of Judges sanctioned for the Province of Sindh has not been enhanced for many years. But more surprising is the fact that the actual number of appointed Judges is one-third of the number actually sanctioned by the Federation. To be precise, 14 Judges (out of a sanctioned strength of about 40) are currently functioning in Sindh. By way of comparison, the High Court of Allahabad in India, has 85 High Court Judges, six times as many as the Province of Sindh.

Reading the above facts you are no doubt alarmed. But you are not nearly as alarmed as you should be. Out of the total of 14 Judges in Sindh, two are posted in Hyderabad, another two in Sukkur, and one in Larkana. That leaves, nine High Court Judges for Karachi. This startling shortfall is further amplified by the fact that the Karachi bench of the High Court of Sindh (unlike the High Court of Lahore for example) has the distinction of serving not only as a court of appeal, but also as a court of first instance for a significant proportion of claims.

The end result is truly frightening: each single Judge or divisional bench in Karachi is scheduled to hear about a 100-odd cases over the course of four hours each day, which (assuming each case is actually heard) equates to two and a half minutes per hearing. By way of reference, this is probably less than the time it will take you to read this short blog entry. In fact, it is about precisely the amount of time it takes for the lawyers to be summoned and the files to be put up before the Judge. Of course, this rarely happens because the vast majority of cases scheduled to be heard are never heard at all. In fact, unless a date and a time is fixed by the court before-hand, the basic presumption is that the cases scheduled to be heard will not proceed. And so, the “huge backlog of cases” grows huger still.

The present situation is completely outrageous and wholly unsustainable. Under the Constitution, the basic responsibility for appointing Judges to the High Court lies with the Judicial Commission of Pakistan, and the name of each member can be found here. This group of people, busy as they may be, need to treat the matter of providing basic judicial services to the wretched litigants of Sindh as one of the highest priority.

If there is some tangible reason why Judges are not being appointed by the Commission, it must come to the forefront – this is a public issue which cannot under any circumstances be swept under the rug. This one small act could do more for the establishment of a system of equity and justice than any number of apex court decisions.

The writer is a lawyer practicing in Karachi.