Restructuring of the Judicial System – Taj Haider

Article 209 (Supreme Judicial Council) lays down the composition as well the procedure to be followed to probe into capacity or conduct of a judge of the Supreme Court or a High Court.

While the said article in Sub-article (3) sections (a) and (b) looks at the possibility of looking at the capacity or the conduct of a member of the Supreme Judicial Council who is a judge of the Supreme Court or a Chief Justice of a High Court, it clearly omits the possibility of looking into the capacity and conduct of the Chief Justice of the Supreme Court.

There is a clear procedure laid down for the impeachment of the President of Pakistan by the Parliament in article 47. However, the Chief Justice of Pakistan is not answerable to any authority if he is accused of misconduct or is perceived to be unable to perform his duties for any reason.

The composition of the Supreme Judicial Council is also faulty in the sense that it establishes a complete monopoly of the Supreme Court and makes the provincial High Courts subservient. Only two most senior Chief Justices of High Courts are council members as against three (Supreme Court Chief Justice and two next most senior Judges from the Supreme Court). This composition clearly violates the autonomy principle and concentrate authority in the Centre and de-facto in one person, who is the Chief Justice and also above probe if accused of incapacity or misconduct.

It is thus proposed that:

1) Besides the Chief Justice of Pakistan only the one senior most judge of the Supreme Court should be member of the Supreme Judicial Council.

2) The Chief Justices of all the four provincial High Courts should be members of the Supreme Judicial Council.

3) The Senate of Pakistan shall have the power to impeach the Chief Justice of Pakistan by two third majority.

4) Not less than one-half of the members of the Senate will be required to move a resolution in the Senate to start proceeding for the impeachment/removal of the Chief Justice of Pakistan.

The Restructuring of the Judicial System

Justice should serve the needs of all the people rather than those of a selected elite. Justice delayed is Justice denied. Thus the delivery of justice should be speedy, impartial and at low cost. The crisis caused due to backlog of hundreds of thousands of pending cases and the continuous attempts to drag judiciary into politics at the cost of their impartiality cannot be overlooked either. The method of selection of judge at all levels also has to be given due consideration.

There are no old solutions to new problems. The entire edifice of justice delivery system has to be restructured from BOTTOM TO TOP. There are no semi-remedies either.

1. A new service structure Judicial Services of Pakistan has to be created on a pattern similar to that of, Civil Services of Pakistan.

2. A procedure of regular merit based examinations/interviews will be devised to select new entrants in judicial services. (According to the existing vacancies in order of merit) The qualified and selected law graduates after due training at a Judicial Academy shall be inducted as Judges at primary level courts. They will be assigned particular branches of law (family, labour, hari, drugs etc) where they will work for a specified period. Subsequently they will serve in other braches for given periods as well to gain experience in different branches.

3. At the level of the High Court eminent lawyers will also be directly inducted as judges through a selection process outlined in the Charter of Democracy.

4. Retiring age of High Court judges shall be at par with that of the Supreme Court Judges and will be enhanced to 67 years.

5. Retiring Judges having full pension benefits shall not be given any other government assignment/job.

6. Sufficient number of Primary level courts shall be established in following branches.

a. Labour Courts.

b. Hari Courts

c. Family Courts

d. Human Rights Courts

e. Banking Courts

f. Consumer protection Courts

g. Rent Courts

h. Drug Courts

i. Anti-Corruption Courts

j. Criminal Courts

k. Civil Courts

l. Reconciliation Courts

m. Anti-terrorism courts

7. In disputes of civil nature arbitration, reconciliation and settlement of disputes outside the Courts shall be encouraged and promoted.

8. Arbitration Councils from the level of Village / Union Council Panchayats to Trade and Industry associations to Chambers of Commerce and Industry shall be set up to arbitrate into Civil disputes. All these arbitration councils will be elected and an honorarium shall be paid to council members for their work.

9. Curbing crime effectively is the duty of the State and the Society. The moneyed and the powerful should not be allowed to go scot free after committing heinous crimes. Crimes like murders are not merely conflicts between two persons or two families to be settled exclusively between them. They come under the category of “فساد في الارض “which has to be stopped by force. Thus no settlement outside the court (except in minor offences) should be permitted in criminal cases.

10. The lead objective is to bring down the crime rate and to enhance the conviction rate.

11. The office of Prosecutor General shall be strengthened and made an independent identity. Prosecutor General should not be acting as a mere post office. His office should to be able to decide which cases are fit to be presented before a court of law and which are not.

12. The practice of appointing Prosecutor General for a fixed tenure shall be discarded. Like other public servants he will also retire after reaching the retiring age fixed for all public servants.

13. It is necessary that those investigating a crime should have a good knowledge of law. A law degree will be the basic requirement for fresh recruitments of officers in the Investigation branch of the police department.

14. Collection of forensic evidence shall be given high priority. It is a pity that at present we do not even have simple basic facilities like lie-detectors. Well equipped forensic laboratories shall be set up in every district.

15. Public prosecutors will be selected on merit after appearing in a proper examination. They will be well paid and their performance will be constantly monitored from the rate of convictions they are able to get.

16. Special laws and arrangements will be made aimed at providing total security for witness in criminal cases.

17. It shall be ensured that witnesses are called to the Courts only when their testimony is recorded or when they are being cross examined.

18. Every province shall have its own Supreme Court which shall be the final appellate Court.

19. As agreed in the Charter of Democracy, there shall be Federal Constitutional Court with equal representation of every province.

20. The procedure of appointment of Judges shall be brought in line with the guidelines given in Charter of Democracy.

21. The seats of Judges in superior judiciary shall not be allowed to be kept vacant. Since the retiring date of every Judge is already known the procedures of appointing another Judge on the seat about to be vacated will be completed before his date of retirement.

Courtesy: Islamabad Politics

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