It is sad to mention that whereas in the rest of the country there’s a debate about increasing the existing number of judges, here in GB we are unable to fill vacant position of judges.
I don’t blame the judiciary for this. I believe that the honourable judges of GB are trying their best to clear the backlog, as was claimed by the Registrar Chief Court in an interview that the Chief Court has been successful in dealing with 476 cases in one month, adding that efforts have also been made to introduce some systematic and technological changes to minimise the unnecessary delays and introducing a paper-less court proceedings for the first time in Pakistan.
I appreciate the visionary thinking of our honourable courts but at the same time we need to be a little more practical. In a region where we already have the slowest of the slow internet service, where we had protests from students during online classes for the poor standard internet service, we can not and are not yet in a position to aim for such targets. Yes, we can achieve the same purpose, by adopting a different mean, which is “appointment of judges”.
The first question that comes in ones mind is, ”Who should we blame for this judicial crises?” There is no one simple answer and we should have the wisdom to admit this. Prima facie the provincial government is responsible for the appointment of vacant seats of judges but at the same time it is also the responsibility of the judicial commission, the honourable Chief Judge of Supreme Appellate Court and the Chief Judge of the Chief Court as well to report to the provincial government on the number of judges that are vacant and required to accelerate the administration of justice.
Let’s look at some statistics which surely will scare the readers at first glance but we have to look at the numbers to understand the lack of interest of government and stack holders.
Currently, the Supreme Appellate Court consists of 2 judges with one seat kept vacant for the last 5 years. It seems to be only one vacant seat but the consequences are bigger than we think. One of the two judges of the Supreme Appellate Court served as a Chief Judge of Chief Court for several years. The problem is that the cases which were decided by the present honourable Supreme Appellate Court Judge in his tenure as Chief Judge Chief Court would go before him again in case of appeal which raises questions on so many levels because how many times have we seen a Judge overriding his own judgements? And is it fair for an appeal to go to the same Judge? Does it not violate the right to fair trial?
The same situation is with the Chief Court. With retirement of Honourable Chief Judge Malik Haq Nawaz, the Chief Court is now left with only one judge, Justice Ali Baig, who is currently serving as an acting Chief Judge Chief Court with 6 other vacant posts of judges.
What, then, is the solution to all this fuss? Whenever there is a criticism, the most common reply is people asking for solutions instead of thinking on the point any argument raises.
The solution is given in our constitution. On appointment of a Supreme Court judge, article 177 (2) of the constitution is relevant which says:
“A person shall not be appointed a Judge of the Supreme Court unless he’s a citizen of Pakistan and has for a period of or for periods aggregating not less than five years been a judge of a High Court or has for a period of or for periods aggregating not less than fifteen years been an advocate of a High court.”
This should make it clear now. Since the only judge in the Chief Court right now has not been a judge of the same court for 5 years, it is not a point of debate whether the honourable judge is a candidate to go to the Supreme Appellate Court to fill the vacant seat or not. What seems fit in the current scenario is that the authorities should appoint a senior lawyer as a judge of the Supreme Appellate Court, someone who has been practicing in Chief Court for not less than 15 years!
I see no harm in saying that the lawyer community should be trusted with the vacant posts as it is a golden chance for the government and superior judiciary to uplift the relationship between the bench and the bar by giving them fair and just representation on merit.
The same kind of remedy, for the appointment of judges of the High court, is provided in the article 193 (2)(a) of the constitution which says:
“A person shall not be appointed a judge of a High Court unless he has for a period of or for periods aggregating not less than ten years been an advocate of High court.”
So, again, there’s no harm in filling some of the vacant posts of judges with lawyers and the vacant seats of subordinate courts should also be timely examined and appointments should be made through selections, based on merit.
I also heard about lawyers seeking Quota to fill the vacant posts of judges.
Personally, I don’t recommend the idea of quota in judiciary because I fear if it will compromise “merit”. Saying that if the Bar’s purpose is to make judiciary more representative and diverse by allocation of lawyers quota, then it would have been much better if there was another insistence on at least one reserved seat for a female judge in the Chief Court, not on the ground of Quota but on the ground of affirmative action which is a policy that takes into account race, gender and background. In simplest words, it is a kind of positive discrimination where such policies are adopted in which the institution gives preference to a member of an under represented group on the basis of race or sex and this idea attracts article 25(3) of the constitution which says, “Nothing in this article shall prevent the State from making any special provision for the protection of women and children.”
And, I think, in the current scenarios we are at a stage where affirmative action is justified as a compensation for the past injustices for educational disadvantages and unequal opportunities women faced and also to ensure diversity in judiciary. Allocation of one seat in the Chief Court for a female judge will not only encourage more young strong girls to join the profession but will also ensure diversity in Judiciary.
In the end, one should understand that it is not a problem concerning only courts but it is a question mark on the whole system. The government needs to take a step back and think about where have they gone wrong. I can only hope for the current crises to be settled with logic and wisdom, as early as possible.
The contributor is a Law Student at the University of Central Punjab.