Proposals for advancing justice

Shehbaz Sharif and I go back a long way. His first stint as Punjab’s Chief Minister from 1997 to 1999 coincided with my tenure as Governor Punjab during these years. Some months prior to the end of his tenure in May 2018, Shehbaz Sharif asked me to chair a Legal Reforms Committee to prepare proposals for improving governance in the Punjab. We jointly agreed on seven terms of reference. The committee included the Additional Chief Secretary, a retired Judge of the Supreme Court, the Senior Member Board of Revenue, the Secretary Law, the Punjab Ombudsman, an Advocate of the Supreme Court, the Secretary Prosecution, the Secretary Local Government, the Finance Secretary, the Commissioner Lahore and two senior officers of the Chief Minister’s Secretariat.

The Committee submitted its recommendations to the Chief Minister in March 2018. The recommendations were approved at a meeting convened by the Chief Minister which also included the concerned Provincial Ministers. Initially Shehbaz Sharif had hoped to implement the recommendations before he left office but could not do so on account of his ever-increasing involvement in issues relating to the imminent dissolution of the Provincial Assembly. The seven Committee Reports are now gathering dust in the cupboards of the Punjab Civil Secretariat. This is a pity. In the hope that the present Provincial Government may consider implementation of the recommendations contained in these seven reports notwithstanding their association with Shehbaz Sharif and the previous PML-N Government, I have decided to make the recommendations public.

One of our terms of reference was to suggest urgent measures for expediting the administration of justice. The sanctioned strength of Judges in the Lahore High Court is 60. The President fixed this member through a notification issued under Article 192 of the Constitution in August 2008. The number of Judges in the other three provinces plus Islamabad is 78 including 40 in Sindh, 20 in K-P, 11 in Balochistan and seven in Islamabad. Punjab’s population is more than that of the three provinces and Islamabad combined. The number of High Court Judges in Punjab should therefore be 80. Apart from population there are other factors that more than justify the increase in the number of judges in the Lahore High Court including, in particular, the pendency of 140,000 cases. This pendency has not reduced to any significant extent during the last few years. One of the reasons is that as against the sanctioned strength of 60 there are 12 vacant posts. The Committee recommended that the Provincial Government should request the Judicial Commission of Pakistan to fill the vacancies, as soon as possible, and further that the Provincial Government should propose an increase in the number of Lahore High Court Judges from 60 to 75 or 80 and undertake to provide the required funds, accordingly in case this proposal was approved.

There are about 12,00,000 cases pending in the Civil and District Courts of Punjab. The total sanctioned strength of District and Session Judges, Additional District Judges, Senior Civil Judges and Civil judges is 2364 of which 1770 are actually working while the remaining 594 posts are vacant. The Provincial Government should request the Chief Justice of the Lahore High Court to take steps for filling the vacancies as soon as possible. However, this by itself may not be enough. The Provincial Government should announce that despite resource constraints it was ready and willing to provide funds for another 216 Judges, six per district in the 36 districts of the province along with the funds required for construction of additional court rooms to accommodate the extra numbers.

Some members had reservations about approving increase in the numbers of the superior and subordinate judiciary till such time as the existing vacant posts had been filled.

The Provincial Government has already sent Lahore High Court a draft law for establishment of an Alternate Dispute Resolution System. The proposed law provides that at the very first hearing of a civil dispute, the Court can, with the consent of the parties, refer the matter for alternate dispute resolution either by arbitration, mediation, conciliation or evaluation by a neutral person. The panel of neutral persons for each district is to be notified after consultation with the High Court and is to comprise advocates having at least seven years active practice, retired or serving judges of the subordinate courts, retired civil servants, ulema, jurists, technocrats and other persons of repute and integrity having prescribed qualifications and experience. The draft law envisages establishment of ADR centers in each district. The neutral persons are to resolve the dispute within 30 days, in the case of arbitration within 60 days. The settlements arrived at through the ADR proceedings are to be made decrees of the Court and will be executable accordingly. There is to be no appeal or revision against such decrees arrived at with the mutual consent of the parties. In case of failure of the ADR proceedings to secure a settlement within 30-60 days period, the dispute is then to be referred back to the Civil Court. After extensive review of the draft law the Committee recommended to the Provincial Government that it should take steps to enact the law as soon as it has received the views of the Lahore High Court.

All public functionaries must act in a fair, just and reasonable manner. If a person was likely to be adversely affected by their decision he must be given an adequate opportunity to defend himself. Detailed reasons must be recorded for making any order likely to adversely affect any person and such persons must immediately be provided a copy of the order. To achieve this end the Committee proposed insertion of Sections 19A and 24A in the Punjab General Clauses Act as under:

“19A. Rules, Notifications, Orders and Regulations etc. to be published.- All rules, notifications, orders, regulations, bye-laws, schemes, forms, instructions and circulars having the force and effect of law and made or issued under any enactment shall be published in the official Gazette”.

“24A. Exercise of power under enactments.-(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person, such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the enactment.

(2)The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate in the circumstances of the case, give an opportunity of hearing to any person likely to be affected adversely, give reasons for making the order or for issuing the direction and shall provide a copy of the order or the direction to the person prejudicially affected”.

The proposed amendments will vastly improve the transparency, credibility and acceptability of executive orders. Further, adherence to the provisions of these amendments should substantially reduce the quantum of grievances against executive orders that find their way to the High Court and the civil courts. A similar provision already exists in the Federal General Clauses Act in the form of its section 24A.

Published in The Express Tribune, February 14^th, 2019.

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