JUDICIAL REFORMS FOR GOOD GOVERNANCE

TLSP CELEBRATE 2013 AS A YEAR OF JUDICIAL REFORMS FOR GOOD GOVERNANCE IN PAKISTAN

Report focus Group Discussion

The Law Society Pakistan, a not-for-profit organization, held a focus group discussion on 19 February 2013, at M./s. Jamil and Jamil, Abdullah Haroon Road Karachi. The Following participants took part in the discussion. Following is a synopsis of the discussion.

Safiuddin Awan, advocate, Executive Director: TLSP

Mr. Saffiduddin Awan said that the subordinate courts do not maintain inward and outward registers which should be properly maintained in lower courts under all circumstances. He also suggested that the orders passed by lower courts’ judges must be published in a compiled form for reading of the advocates. He said that such publication of orders will not only enrich experience of the lawyers but also bring judges and their judgments under spotlight.

Mr. Amrat Shardha advocate, Member Board of Directors TLSP

 He said that TLSP intends to hold a comprehensive seminar June this year on critical issues that plague country’s legal system. He said his organization has plans to invite honorable Chief Justice of Pakistan, Mr. Justice Iftikhar Muhammad Chaudary, as chief guest in the aforementioned seminar. He said that keeping in view the proposed seminar, TLSP has planned out three structured and agenda-driven focus group discussions with an aim to pinpoint a broader agenda for its mega event i.e. forthcoming seminar. He said that it was the first such meeting amongst participants who come with wide range of experience on the subject under discussion. He said that the topic or scope for discussion in the first meeting was functioning of district-level judiciary with particular focus on the presiding officers/judges of the lower courts.

 Mr. Nadeem Qureshi Judge Custom Tribunal

 Mr. Nadeem Qureshi shared his views with the participants on the topic by singling out corruption amongst clerical staff of lower courts as a main cause of judicial underperformance. He said that court staff must not remain posted in one particular court for a long period of time as, according to him, this gives way to corrupt practices. He said there is a nexus between touts and district courts’ lower-level staff. He also highlighted the practice of filing of vakalatnamas by fake advocates. He said Bar associations and Bar councils should devise mechanisms to curb such malpractices. He said the Code of Conduct for judges must be implemented in its letter and spirit. He further said that since colonial times, the judicial system of the country remained the same and there was a telling need to fashion and model that system along the lines of modern age and its demand. Mr. Qureshi further said that transportation of UTPs from jails to trial courts was risky and full of hazards. He said that in the city of Lahore, video-conferencing between UTPs and Courts had already begun which should also be replicated in Karachi.

 Rafiq Awan, Superintendent Juvenile Jail, Karachi.

 Mr. Rafiq Awan, sharing his observations, said that the policemen also have to suffer from delayed trials of the accused persons. He said when a prosecution witness is summoned to appear in a court, he reaches there only to know that case has been adjourned till next date of hearing. He said that there must be some kind of speedy process of justice administration so that precious time of courts, litigants, lawyers and law enforcers could be saved from being wasted. Mr. Awan suggested that NADRA as a database authority can do its bit by segregating records of all those people who have criminal track record and history.       

 Waqar Shah, advocate.

 Mr. Waqar Shah said that transfer of judges or court staff was not the durable and long-lasting solution to the problem. He said when judges of trial courts pass judgments, their verdicts must be scrutinized. He added that judges during the conduct of judicial proceedings were only immune from accountability if the mistake made by them was the mistake of fact and not mistake of law. He further said that if judge of a sub-ordinate court happens to be on leave, his cause list/board must not only be transferred to a link judge, moreover,  the transferee judge should also look into the transferred cases if the nature of such cases required him to do so. He said that prior to Law Reforms Act 1972, there used to be a system of ‘ de novo trial’ which was scrapped after promulgation of the aforesaid law. He said that ‘de novo trial’ helped courts get the criminal cases decided by the same judge who presided it over from the day one. He said instead of bringing UTPs from Jails to the Courtrooms, modern technology of video-coferencing should be availed of.   

 Mr. Kabeer Sidiqui, advocate

 Mr. Kabeer Sidiqui said that if an SHO of a certain police station does not comply with the mandatory law which is very clear that a police officer is bound by law to record statement of a complainant, he should be held accountable for such negligent act. He said the policemen do not pay heed to the mandatory provisions of law because they know that no one will call explanation from them. 

 Mr. Sajid Awan advocate.

 Mr. Sajid Awan said that judges of the lower courts need to have a judicial philosophy which is presently non-existent. He said that a survey should be conducted in order to know the orientations and approach of lower courts’ judges towards the law. He said efficacy of law is reduced to nothing if a judge does not either understand it or is driven by his own fantacies. He further said that after proposed survery, they can have a scientific proof as to how  judges think and whether their approach is in tandem with that of the apex judiciary. He said that conducting a survery of 200 or so courts is not a difficult task. He said that no system can thrive and flourish until and unless it has a sense of direction.

 Fayaz Awan advocate.

 He said that lack of justice is the root casue of all social evils. He pointed out that the common men wanted relief. He emphasized that appointments of judges must be based on their social background. He said that by appointing honest and justice-oriented judges at all tiers of judiciary, a meaningful change could be brought about in the system.

Barrister Shahida Jamil, former federal Law Minister and a Human Rights Activist.

 Summing up the discussion, she praised the speakers for their depth of vision and understanding of the subject under discussion. She said that disruptive changes tend to mar a system. She said that a system becomes weakened if abrupt changes are introduced in it. Referring to Police Rules 1934, she said that they were the most comprehensive set of rules but due to introduction of new legislation, those rules have become ineffective. She said that the tendency to tapmer with the records of history was a stark manifestation of the philosophy of ‘tabula rasa’ which means that whatever is not convenient should be deleted from public memory. She further said that it is only made possible when public records are tapmered with. She said we can bring about a positive change by creating small waves. She said that the criteria for judges’ appointment should be such that 50% judges should be taken from the Bar and the remaining 50 % from the Bench. She suggested that the judges should not be in the control of the Executive. She also said that for elevation of a judge, the criteria should be to assess as to how many of his cases had been appealed against or set aside by appellate courts. She further said that elevation of a judge should be performance-based. She concurred in opinion with the rest of the speakers that a ‘Scrutiny Committee’ should be set up by High Court for observing judges’ performance. She suggested that the Judicial Academy must formulate an all-encompassing curriculum for trainee judges. She emphasized on the need for holding refresher courses for trial court judges. She also agreed to the opinion of other participants that a legal survey to know the judicial philosophy and approach of judges should be conducted as a first measure in the process of revamping the system.