Waiting for justice

10-year aggregate data from all provincial High Courts demonstrate that case backlogs, court delays, are on the rise.

Scene One: Let’s travel back a hundred and fifty years. The High Noon of the British Raj is approaching. India’s pre-colonial dispute resolution systems have been largely displaced by a multi-tiered formal adjudicative structure. A cadre of native judges has been trained and entrusted with administration of justice at the lower levels. There have been quite a few doubts, suspicions, murmurs of discontent, hiccups and false starts — and, consequently, realignments and reinforcements. The new system is now embedded. Its performance evaluation, it emerges, is based on hard data rather than idle rhetoric. On evidence is a marvellous report by a certain Colonel Sykes published in 1853 in the Journal of the Statistical Society of London. In important ways this document demonstrates the rigour that went into monitoring and evaluating the courts in a bygone era when Indians were developing a taste for the joys — or in many cases were being extended no option but to expose themselves to the horrors — of western-style adversarial litigation.

Colonel Sykes’s report on the “Administration of Civil Justice in British India, for a period of Four years, chiefly from 1845 to 1848, both inclusive” is a treasure trove of statistical riches. It builds on his two earlier four year evaluations conducted in 1843 and 1848 respectively. Thus, it undertakes an invaluable time series analysis encompassing a twelve year period. In table after table, the author documents and analyses the numbers for case admissions, readmissions, transfers and disposals in the various classes of courts across the different Presidencies. He identifies those with maximum case pendency. He pays special attention to the number of cases settled with the mutual agreement of the parties, as well as to those that are indicative of vexatious litigation, having travelled up to the appellate levels. He gauges the allocation of workloads amongst different categories of judges, and the relative performance of the ‘native’ and ‘European’ judicial officers.

Not content with mere efficiency, he conducts a qualitative evaluation of the various lower courts on the basis of the number of appeals against their decisions, as well as the number of decisions reversed or modified. The author identifies bottlenecks in the court system, delineates the nature of the most frequent underlying disputes, and calculates the average duration of various kinds of suits and appeals as well as their monetary value. He ascertains the number of per capita suits in different localities, the number of decisions in favour of plaintiffs and defendants (thus indicating the extent of frivolous litigation), and the relative costs of litigation in different courts. He also evaluates the rigour of appointment and performance evaluation processes for native judges and lawyers. He does even more — this is just a representative sample of the scope and depth of his inquiry.

Ideologically, he obviously embodies the Raj. While expressing satisfaction with the performance of ‘native’ judges he concludes: “The European judges, in fact, exercise little more than appellate jurisdiction, combined, however, with the indispensible and highly important duties of watching over the conduct and proceedings of the native judges — a supervision which can never be abandoned or even relaxed with safety.” Fully conscious as I remain of the presence in his data of the Foucauldian power-knowledge nexus — and of what Bernard Cohn aptly describes as ‘colonialism and its forms of knowledge’ — I also cannot ignore the following. At one important level the sahibs wanted their court system to work efficiently for the benefit of their subjects. After all, at stake was their reputation as a superior culture.

Scene Two: Let’s shift the gaze to the twenty-first century. The subjects are now bonafide citizens. They have decided to persist, however, with what cemented their subjecthood. They have rarely bothered to modify their legal system in line with changing social realities and public needs. After decades of stupor, one day they decide to seek foreign assistance in order to address domestic challenges. The following, in three sentences, is the story of justice sector reform in Pakistan over the past decade. (1) Pakistan was the recipient of the largest ever IFI loan for justice sector reform, and also of many smaller loans. (2) ‘Efficiency’ was the main mantra of these reforms; their primary intended outcome was ‘delay reduction’ in courts. (3) Ten-year aggregate data from all the provincial High Courts demonstrates that other than some brief, unsustainable progress, the gap between disposed and newly initiated cases is an ever-widening one — in other words, case backlogs, and hence court delays, are relentlessly on the rise.

And here is the shocker! Despite the millions of dollars spent on ‘efficiency’ enhancement, judicial utterances pre- and post- Lawyers’ Movement, various promises in the National Judicial Policy 2009, the capacitated Law & Justice Commission and the new National Judicial Policy-Making Committee, salary raises, flash computers, and the veritable army of naib qasids and other underlings, one cannot find a single report half as rigorous as the one produced by a Colonel Sykes on horseback a hundred-and-fifty-years ago. Neither is one likely to appear any time soon as there are no plans as such to prioritise scientific introspection. What currently passes for official data is way too general, irregular, inconsistent, and sporadically accumulated for it to be taken seriously. It barely presents a reliable picture of the very broad, let alone provide meaningful insights into the particular areas of increased litigation and the specific vulnerabilities and lacunae of law, procedure, person and process that contribute to backlog and delay.

Scene Three: Far from the lofty pedestals for equally lofty utterances, ordinary citizens are bone weary of the trench warfare of lower court litigation. In a survey of 440 litigants in the Lahore District Court last year, an overwhelming majority (94 per cent) described the court proceedings as debilitated by delay. They either reported ‘a lot of delay’ (81 per cent) or ‘a fair bit of delay’ (13 per cent). In view of this, over three-fourths of the respondents (76 per cent) said that they were ‘dissatisfied’ or ‘deeply dissatisfied’ with the pace at which their cases were proceeding. Importantly, 42 per cent emphasised their ‘deep dissatisfaction’. Unsurprisingly, on being asked as to when they expected a final decision in their cases, 67.5 per cent said that they could not predict the date of closure.

Abject surrender was resonant in the comment, “I know that like my father I will die pursuing this case. And then my son will have to take it over like I did.”

Published in The Express Tribune, March 27^th, 2012.