Access To Justice Program & The Prevailing Judicial System

Published as PLD 2006 Jou.84

The quality of judicial services cannot be upgraded by ignoring the common man to get the fruit of justice even after accepting heavy aid of US $ 350 Million from Asian Development Bank because people were expecting that subsidized justice would be delivered to them without spending heavy cost merely on delivering the statement of facts to the office and all the rules of technicalities like payment of court-fee, receipt fee, stationery, extra photo copies, copy to A.G. Office, computer copy of F.I.R. would be dispensed with. In order to combat the backlog of cases, they were expecting that 24 hours service shall be launched by hiring new judges on appropriate pay for the appropriate period. But the wish of people is nothing short of a dream because in their attempt to get justice or knowing the admitted position through the print and news media that the people are not getting justice, they are becoming depressed from the system in spite of providing betterment in the judicial service after getting aid, the right of people to get access to justice is being denied at office level as the office of superior judiciary is enjoying unfettered power of raising objection of academic nature in order to block the cases and this is being done under extraneous consideration but if the position is not changed;then, there would not be any use of other facilities as access to justice is the basic right of human beings in the absence of which the exercise of other rights are not possible.
Livingstone Armytage in his article[1] has proposed measures for the improvement of judicial services but proper treatment requires proper diagnosis and treatment of diseases present in the judicial system is not possible without independent, impartial and fearless diagnosis. It is also in the common knowledge that public opinion is normally not invited while forming the policy or if invited, even then bureaucratic point of view is usually given preference also in judiciary like other Government institutions as the officers look better while sitting in their position as they have better opportunity to act according to the requirement of donors and policy makers; but without understanding the actual grievances of the public or providing them opportunity of being heard, there would not be proper balance and correct diagnosis of the problems which would become the reasons for the failure of the program because the ultimate purpose for the use of fund would be the redressal of grievances of the public. by removing the barrier in the way of “Access to justice”. It is also well-recognized that aid in the form of loan is only helpful in support of some program already in progress but aid to start a new issue without scientific calculation has often resulted in the failure of the program. Therefore, for experimental purposes, aid in the form of grants is feasible. Following reforms for Macro Level changes are hereby suggested:

1. Independent Fund:
   The dream of independence of judiciary can never be turned into reality without getting financial independence. Judiciary must not depend for finance on executive because the dependence is otherwise the death of creativity and for this purpose, Articles 78, 118 of the Constitution must be amended or forced to be amended.
2. Appointment of Judge:
   Although in Malik Asad Ali’s case[2], Supreme Court of Pakistan has finally decided about the need to appoint the Judges of superior judiciary purely on merits but the Government is still violating this principle for its own aims and designs which is resulting in the weakness of judiciary and executive excesses remained unnoticed. It has been observed in the executive summary of Asia Report No.86 dated 9-11-2004 that “political allies now fill key judicial positions, particularly the posts of High Courts wield critical administrative powers over the allocation of cases to Judges and the assignment of Judges to courts across a province. The executive’s power, via certain Chief Justices to direct a case to pliant Judges, undermines lawyers and litigant’s expectation of fair trial when the executive is a party. The executive also has improper influence over the electoral process via certain Chief Justices because the latter appoint the Returning Officers for election from among the rank of subordinate judiciary.”
3. Quality of justice:
   Shortage of Judges, court houses, grossly inadequate facilities, renovation of existing Court houses and a dismal system of compensation aren’t only the problems of the judiciary but actually strong and skilful persons are needed as described in S.P. Gupta’s Case [3]:-
   “For the appointment of Judges of constitutional Courts, constitutional requirements and his mastery on law are insufficient but some additional qualifications are required like awareness of high priority task of eradication of poverty, removal of economic disparity, destroying the curse of illiteracy, ignorance, exploitation, feudal over lordship, coupled with conscious commitment to administering socio-económic justice, establishment of just a social order, an egalitarian society, then not only the value packing is not to be frowned upon nor thwarted by entrenched establishment prone people but it must be advocated with crusader’s zeal.
   A Judge should be stern stuff and tough fibre unbending before power and uphold the core principle of rule of law.
   Be you ever so high, the law is above you.
   Krishna Iyar further suggests that a Judge must be built in resistance against pushes and pressure. He must be an expert craftsman in order to combat rising challenges of law.”
   Weak decisions are not only fatal for aggrieved persons but give rise to further litigation e.g. while issuing ad interim injunction the courts write at the end of the order a routine sentence that, “however, this order would not affect any legal proceedings” or sometimes Courts pass conditional decrees even in the cases like dissolution of marriage or while allowing writ petition, the public servants are not burdened with cost or the matter is again sent to the public servants for the interpretation of law.
4. Equality before the law:
   Mr. Justice (R.) Nasim Hassan Shah has made three things. important for the purpose of maintaining “Rule of Law” i.e. absence of arbitrariness, awareness of law among citizens and equality before law. Equality before the law is an essential component of rule of law but provision for the accountability of public servants as in most of the laws are lacking. The concept of equality before the law can never be flashed without balancing the rights and liabilities by the process of legislation. The bureaucratic approach remains dominant and judicial discretion is also being slowly exercised.
5. Modernization of Laws.
   The main purpose for the enactment of prevailing laws is to strengthen imperial rule and the litigants were to drag in Courts till the time when the parties may arrive at compromise and the police system was also established to frighten the public in order to keep them loyal to the Government. All laws are required to be updated according to the needs of society.
6. Citizen Court Liaison Committee:
   It may not be only the function of the committee to resolve private disputes but the public must be required to point out the illegalities for the notice of Courts and if some public spirited individual may successfully prove the litigation and then they must be encouraged. Dispute resolving citizens must also be encouraged for welfare litigation so that they must have close links with Courts. Where there is no awareness of law, there is little chance of resolving the dispute through a private treaty.
7. Judges’ Practice Manual:
   It will remain ineffective unless and until the Judges may have conscious knowledge that in case of mala fide attempts, they would be certainly answerable either before Supreme Judicial Council or before God but practically, most of the Judges do not like the law for their own conduct as predicted by Mr. A.R. Corneous:[4]
   “Whenever facts were brought to the notice of a Judge which contained the slightest objection to his hearing a case, he always declined to do so. It is possible that the learned Judges who heard the case under reference were annoyed at the way the objection was taken.”
   Although, the objections are permissible to be raised before the Court in view of the above judgment and also to keep Article IV of Code of Conduct[5] in operative condition, the Judges felt annoyed. As a result of raising an objection, I have been proceeded with contempt two times. The immediate reaction after annoyance with a counsel results in the destroying of the case causing the party to suffer for no wrong. Moreover, High Court Rules Vol. V is not available in libraries, law book shops but its availability is essential in order to regulate the function of the High Court in lawful manner and delay in its reprinting is intentional. Apart from raising lawful objections, the Courts even felt annoyed even if their order may be challenged before them in review. Therefore, there would be no access to justice until the Judges may not like to follow the law for their own lawful conduct.
8. Institutionalization:
   A deciding Judge does not cause impression to the public by his conduct that his impartiality can never be a matter of doubt and he must not permit his judgments in a case to be influenced by the irrelevant consideration of caste, creed, relationship, friendship, hostility or enmity as these things are also against the spirit of the oath and concept of institutionalization. Likewise, if the Courts are unable to invalidate an illegal act; then, it means that the Courts are failing to perform their duty. Institution of justice can never be strengthened without strengthening the rule of law which requires that Government should not enjoy unnecessary privileges or exemptions from ordinary law and this rule also requires from Judges that they must remain alive to the truth that all power to prevent abuse is the acid test of effective judicial review but it would be pertinent to mention here that personal whim and choice is being used at office level and the objection form of Lahore High Court contains many objections which require academic debate. Therefore, the objections regarding maintainability, Locus Standi, entertainability, alternative remedy are in excess of power. Judiciary implies and sometimes expressly feels that justice is not being delivered to the public. Government functionaries have been repeatedly required in a number of judgments to redress the grievance of the public within the meaning of section 24-A, General Clauses Act, 1897 and against police, the public has been required to seek the remedy under section 22-A while technique of A.D.R. has been introduced in order to resolve private disputes. Expressly, it has been laid down [6] that “The Judicial system is tottering on the brink of demolition”.
   Again it has been said in a judgment[7] that “Poor litigants are losing their confidence in the prevailing judicial system.”
   Therefore, it is also essential that the Judges must be capable of accepting the rising challenges. Unfit persons cannot find the solution of a problem who only wish to enjoy the office and protocol less wish to yield productive service. On the other hand, the Judges have complained that the political persons have no respect for the rule of law and they also have a habit of interruption as it has been written. by the Chief Justice (R.) Ajmal Mian[8] that:
   Unfortunately, in our country on account of interruption in the political process, we have not been able to attain maturity in the democratic norms nor we have fully developed respect for the
   rule of law.”
   Mr. Justice (R.) Sajjad Ali Shah has written in his autobiography[9] that:
   “I found that hard work and good performance in Courts were
   not the sole criteria for decision but the face value of the counsel was an important factor.”
   Unfortunately, in our country, personalization is prevailing over institutionalization. I have myself been arrested from the Court Room under extraneous consideration when I was in uniform and the judgment[10] would show that no statutory benefit under section 382-A, Cr.P.C. was given to me to file an appeal against the order of conviction but I was thrown to hard labour by wearing prisoner’s uniform as I was under rigorous imprisonment. I remained in jail for 40 days under suppressed conditions not under the command of law but in an attempt to strengthen the rule of law by making an effort for the independence of the bar and bench which is a matter of record. Although, it is held in number of cases i.e. S.P. Gupta’s case that:
   “The practising lawyers, who are nothing short of partners in the tasks of administration of justice undertaken by the Judges, are vitally interested in the maintenance of a fearless and an independent judiciary to ensure fair and fearless justice to the litigants.”
   Moreover, it has also been laid down in Masroor Ahsan’s case 11
   “The administration of law is not only the problem of the Judge or prosecuting attorney alone, but necessitates the cooperation of an enlightened public.”
   It can be keenly observed that in the prevailing judicial system, an Advocate is the actual Judge in order to provide justice to a party as the Judges have only to apply the law. Lawyers remain in an attempt to assist the courts till the redressal of grievances of the party. Therefore, humiliation of an Advocate is otherwise the disrespect of administration of justice.
9. Access of Lawyers to Essential Legal Resource:
   Bar libraries can be updated with Advocates’ contribution and it is more natural mode to maintain libraries because, a thing become of more value when purchased from personal pocket but artificial shortage is being caused when the office-bearers of bar came to the knowledge that the shortage of books is the acceptable ground for the donors and this ground has generated a new mode of corruption and new threat to rule of law.
10. Legal Education:
    Now, it is well-known, that whenever, unnatural or unreasonable solution is offered to a problem then, it is presumed that the
    deciding man is unfit and in our country, many policy makers are unfit to perform their duty. This is the reason due to which some positive reforms have not been brought in for the improvement of legal education. It is argued that legal education is not producing lawyers, Judges, legal scholars and law officers, equipped with necessary knowledge and skills to meet the legal, economic, social, cultural challenges of poverty, civil conflict, social stratification and the abuse of rights we are facing. Whenever, it has been needed to bring in reforms to upgrade the legal education or to make it purposeful but the policy makers have chosen short-cut solutions and the time duration is being increased which otherwise means the wastage of the best talent of the age. The methods of getting tests or upgrading law courses have not been seriously improved. If the students may be required to appear in weekly, monthly, quarterly or yearly tests to the latest legal developments, latest legal decisions, articles of scholars and then their capacity to meet with the rising challenges would be improved. In law moots, the newcomers may be given the chance to describe facts.
11. Freedom of Information Act:
    The public must have easy access to public records and if the copy of which is refused to them, there must be a heavy penalty or the delinquent may be presumed to have committed cognizable offence because without proper record or evidence, corrupt or arbitrary act cannot be proved.
12. Accountability:
    Qur’anic philosophy says that judicial power is a sacred trust and that a Judge should conduct himself honestly, proficiently and to the best of his knowledge and capabilities, keeping always in mind that he is accountable to God. In case the statutory functionary ignores to exercise the power under Article 24-A General Clauses Act, 1897, they must also be held accountable. Moreover, special compensatory cost may statutorily be required from public functionaries by bringing in amendments under Article 199 of the Constitution to be paid to successful petitioners. Therefore, accountability is needed within the judiciary and as a check on the executive.
    Mr. Justice Ali Nawaz Chowhan has expressed his view in a judgment [12] as:–
    “Our system is failing because there is lack of accountability and lack of checks which the system itself provides and will continue to deteriorate, if we do not ensure proper accountability.
13. Transfer of High Court Judges:
    Article 200 of the Constitution may be amended giving the power to the Chief Justice of Pakistan to transfer Judges of High Court to other provinces where the interest of justice may require so. It is also in the interest of a Judge to be transferred beyond his native station because for a local Judge however disinterested or independent he may be, he is bound to be influenced either consciously or unconsciously by interested persons who choose to exploit him even without his knowledge. Such a policy would enhance the prestige of the judiciary, ensure its independence and make the working of the head of the judiciary in the State more efficient and generate a greater confidence in the people of the new State where he is transferred.
14. Public interest litigation:
    By adopting this technique larger interest can be protected but measures have not been adopted in order to make this technique most effective. There are examples of bona fide petitions which have been shunned down on technical ground like locus standi or factual controversy etc. and it is possible that due to the reason of selfishness and slavery among the conscience of general public, some time ill- motivated litigation may come before courts but the courts generally presume the litigation instituted with mala fide purpose. These kinds of problems can easily be solved by adopting strong commitment and in order to encourage this kind of litigation, the courts must award heavy compensatory cost to the successful petitioners; cases of this nature may be fixed before special Judges preferably at principal seat having complete skill to combat with the problem and these kind of cases must not be dealt within routine but proceedings must be conducted on day to day basis. Every petition must be considered with bona fide purpose until proved otherwise. By adopting this technique, rule of law would be strengthened more. In India, special benches i.e. green benches are not only formed but compliments are also paid. In a case Chinnapa Reddy, J.) has commented before discussing the merits in his judgment [13] in the manner;–
    “The petitioner has invoked the jurisdiction of this court under Article 32 and has asked us to direct the respondents to give him his due, the same as they have given others like him, true, he is the merest microbile in the mighty organism of the State, a little clog in a giant wheel. But, the glory of our Constitution is that it enables him to directly approach the highest Court in the land for redress. It is a matter of no little pride and satisfaction to us that he had done so. Hitherto, the equality clauses of the Constitution, as other Articles of the Constitution guaranteeing fundamental and other rights were most often involved by the privileged classes for their protection and advancement and for a fair and satisfactory distribution of the buttered loaves amongst themselves. Now, thanks to the rising social and political consciousness, and the expectations roused as a consequence, and the forward looking posture of this Court, the underprivileged also are clamouring for their rights and are seeking the intervention of the Court with touching faith and confidence in the Court. The Judges of the court have a duty to redeem their constitutional oath and do justice no less to the pavement dweller than to the guests of the five star hotels.”
    It is also needed to treat public spirited individuals as friends of the Court. Actually, the arguments before law Courts can be divided in the following three categories:
    (i) In the first mode while addressing the Courts, lawyers claim relief according to the settled principle of law given in some statute or case-law.
    (ii) In the second category, he makes his case differentiated in order to prove the adverse view as not applicable.
    (iii) In the third category, an Advocate submits before the Court of law in order to formulate some new principle of law and in this position, he deserves more respect and honour because he is furnishing something new and his true position is not less than that of a teacher.
15. Legislation:
    For the strengthening of rule of law, it is essential that laws must be updated and new laws may also be framed according to the social requirements. Moreover, participation of every citizen must be required for lawmaking purposes and if their proposal may attain the shape of bill and finally approved, then due compensation must be paid to him and he must be encouraged for future time. Three pillars of the State i.e. executive, judiciary and legislation must remain active at the same time. It would be better that they must function during 24 hours in independent shifts. All the executive offices may open from 6-00 a.m. to 2-00, judicial offices may remain open from 2-00 p.m. to 10-00 p.m. and from 10-00 p.m. to 6-00 a.m. the time must be fixed for law- making. By this way, efficiency of each pillar would be increased because the main cause of inefficient conduct of executive officers is that they remain absent from their seats due to the reasons of their attendance in Courts etc. and in case of Court date, their whole day stands wasted and the public feel inconvenience. Likewise the function of judiciary to place active checks on the executive would also become more strengthened by deciding the controversies in the presence of public servants. Moreover, importance would be given to the law making process and a part from the chosen representative; every citizen would feel to have been engaged in the law making process.
16. Building Judicial Independence:
    The main points or recommendation of Asia Report No.86 dated 9-11-2004 are described as under:–
    (i) A transparent system of judicial appointments to the High Courts on the basis of public discussions for candidates for posts on the High Court.
    (ii) Seniority rule must not be violated for the formation of High Court Judges to the posts of Chief Justices and for the posts of High Courts to the Supreme Court.
    (iii) The practice of awarding Government positions to retired Judges must be stopped and the public audit of all members of the superior judiciary and close family members must be encouraged in order to ensure that statutory benefits are awarded and corruption is avoided.
    (iv) That practice of offering new oaths to Judges, and renouncing publicly the use of the judicial oath as a mechanism for purging the judiciary.
    (v) The internal administrative mechanism for the prevention of corruption and the removal of corrupt High Court judges, with oversight from a judicial commission that includes members of the bars and parliamentarians.
    (vi) Administrative reforms must be instituted that curtail Chief Justice’s power over the assignment of cases and of Judges and establish professional managerial divisions within the Courts to fulfil this task.
    (vii) Anti-Terrorism and Accountability Courts must be absorbed into the ordinary judiciary, jettisoning procedural variations in bail, plea bargaining and the physical circumstances of trials.
    (viii) Judicial decisions at all levels must respect international human rights.
    (ix) Manipulation of appointments, promotion and removals in the superior judiciary must be treated as important measures for the democratic development in Pakistan and important for the independence of judiciary.
    One can think that if the above described objectives would not fulfil, then what shall be the function of granting the aid? And the program would not be going to yield any result.
    However, some micro level changes from higher level to lower are suggested hereinunder:–
    (a) A Judge must be punctual and must sit on his chair at the right time. If a Judge becomes late, then his intention is only to spend the day but not to perform the duty.
    (b) During duty hours the judges remain sitting in retiring rooms and the impression given to the public is that they are dictating but if the dictation is given in the court room then the confidence on the Court would be increased. By entertaining the cases in the retiring room the impression on the public about the Court would not be good and the incidents as reported in the judgment[14] would remain happening.
    (c) Recovery suits below the value of one lac must be exempted from the payment of court-fee and decided through summary procedure as provided under order XXXVII. The court-fee after one lac must be required at the rate of 1%.
    (d) Equality and propriety demands that there must be equal number of Judges in all the benches of every High Court of the province by dividing the areas in the manner that pendency of cases in all the benches must be equal and every Judge must be required to visit every bench in rotation for at least six months. By adopting this technique, all the benches would become of equal standard and transfer of a Judge to a bench as punishment would be avoided. If it may not be possible then, there must be only one seat i.e. at the provincial level.
    (e) At the time of institution, Advocates must be required to specify the time in which they can conclude their arguments and also specify the name of three Judges present in the bench who are fit to decide the case in their opinion so that the case may be marked to anyone of them. By specifying the time, the possibility of left over would become minimum.
    (1) Direct appointment in High Courts must be avoided and the settled practice for the appointment of Supreme Court Judges by way of elevation must be followed. It is not only essential for the independence of judiciary but also for the independence of bars because the present trend of holding bar offices is for the purpose of elevation.
    (g) Separate chapters must be included in Supreme Court Rules determining the limitation of the office to raise the objections and for the purpose of fixation of time to hear the case, there must be judicial determination soon after the institution. (h) Fixation of cases by office in High Court causes complications and makes the cases infructuous because the office cannot judge the urgency in the case. Therefore judicial determination about the time of fixation must be made and the courts must decide the pending matter by fixing the actual date.
    (i) There is no provision in C.P.C. for keeping the case pending for the announcement of interim order or short orders but it is provided only for the announcement of final judgment. Short orders must be passed in the presence of counsel on the same day because while passing the order further assistance of counsel regarding the reference and the day of fixation is required to be asked and sometimes the counsel may withdraw their petitions.. Application under sections 22-A, 491, 497, Cr.P.C. must be decided in the presence of the counsel.
    (i) The petitioner under section 22-A, Cr.P.C. and under Article 199 of the Constitution must be kept pending till the order may be implemented and the order may be of specific nature. Filing of contempt for the implementation of order is further botheration to the litigants, who in fact carry no locus standi to file the same.
    (k) Precedents of higher Courts are not usually followed and the action for misconduct has also been suggested by our Supreme Court[15] which is being ignored. Proper implementation and accountability is required to be carried on in order to strengthen the rule of law.
    (1) The problem of easy adjournment can be solved by following the principle of cost in its true sense. And no adjournment shall be granted without awarding cost to the aggrieved person. By adopting this technique, non-serious advocacy would be discouraged.
    (m) Magistrate must themselves pass the order for the cancellation of case under Police Rule 24.7 and require from police under section 156, Cr.P.C. to investigate the matter wherever it would be necessary.
    (n) Section 250, Cr.P.C. must be implemented by the Magistrate by themselves in order to balance the scale of justice.
    (0) Under Police Rules 21.2 and 1.20, Magistrates must visit the police stations and check the lockup and record of the police station and entry of their visit must be written in the Roznamcha Register. Magistrates must also ensure that police Zinnies must not be written on dictation as it became suspicious in view of the High Court decision[16].
    (p) In order to make section 173, Cr.P.C. implementable in its true sense, police must be required by the Magistrate to forward progress reports of every case on a weekly basis, by adopting this technique, challan of cases would be produced within 14 days. (q) Section 167, Cr.P.C. must be implemented in its true spirit and while giving physical remands, the Magistrate must write the name and rank of officers and time in the order presenting the accused persons. Moreover on the required day the case must be fixed in the cause list. By adopting this technique, the police would remain in its mean position and a record of illegal detention would also be formed.
    Without justice an individual cannot behave in a normal manner in order to yield productive services for the betterment of mankind but he can otherwise become paralytic if justice is ignored to him continuously.
    
    REFERENCES:
    [1] PLJ 2004 Mag. 100. PED
    [2] PLD 1998 SC 161, Malik Asad Ali v. Federation of Pakistan.
    [3] AIR 1982 SC 139, S.P. Gupta v. Union of India.
    [4] PLD 1966 SC 140, M.H. Khondbar v. The State.
    [S] PLD 1967 Journal 97.
    [6] 2001 SCMR 1135.
    [7] 2004 SCMR 471.
    [8] A Judge Speaks Out–First Edition 2004.
    [9] Law Courts in Glass House.
    [10] 2005 YLR 3046–3052.
    [11] PLD 1998 SC 823–978.
    [12] 2004 PCr.LJ 428, Evon Dilbar v. Innocent Dilber Feroze and others.
    [13] AIR 1982 SC 879, Randhir Singh v. Union of India.
    [14] 2003 PCr.LJ 277.
    [15] PLD 1997 SC 84, PLD 1994 SC 879.
    [16] 2005 PCr.LJ 51413 (sic)..