Tuesday, 31 December 2013

Should we think Judicial Reform

Should we think Judicial Reform

Justice Iftikhar Choudhry will have a place in Pakistan history for giving us judicial independence. What we now have to achieve is a working judiciary. For that we should start thinking seriously of judicial reform.   

All of us have personal stories of a justice delayed, justice denied and justice sold. Many of us hesitate to approach the judiciary settling out of court for a song.

Every person has many such stories of long delayed justice. Cases are pending in some cases for decades. Decisions are given without regard to economic consequences. Decisions on economic matters are given without being informed by economic analysis at a cost to the economy.

Judicial reform has been restricted to increasing judges’ perks, compensation and pension and that too for mainly the superior judiciary. Nothing tangible has been done to ensure timely and fair justice.

Perhaps it is time that initiate a discussion on how our strong independent judiciary can deliver speedy justice that cannot be bought, that never has to take more than one oath, which no dictator can easily manipulate. I can think of many such proposals.

Why do cases remain in court for decades? Those of us who are in court find it so strange that hearings are scheduled after months and then continuances given on trivialities like a lawyer not showing up, or claiming not to be ready, or claiming to have a cold. In many advanced countries, a case once scheduled, continuances are not easily given and it is heard to conclusion at a good pace with limited intervals if any. Why can this not be done here?

Judges can easily be incentivized top clear their calendars very easily! Instead of giving them hefty salaries and perks, let the system offer them bonuses for speedy and good justice. Let us say we give a high court judge about Rs. 0.5 million a month in salary with no perks. But put up a Prize of say Rs 20 million annually if he clears his calendar of cases that have been pending more than 3 years. The bonus could be adjusted downwards by the proportion of cases left over. Thus if only 30 % of such cases were left over he gets only about Rs. 0.67 million.  Penalties for older cases could also be built in. For example, if cases over 5 years remain pending the bonus could be lessened by the percentage of calendar containing such cases.

Should we worry about the quality of judgments with such a bonus schemes? This is a problem that can also be taken care of by setting up a watchdog body where a bunch of researchers are funded to review judgments ex post for their quality. This would place pressure on judges to be careful in doling out justice. 

Reforms in developing countries often forget human resource management. Any reform that does not prioritize talent attraction and management will be a failure. With cash payments, no perks, performance based-bonuses, rigorous training and results monitoring a good system can be developed that would attract and challenge talent.

The system could similarly be configured for lower courts. Funding for such a system could come from court fees and awards for damages and recovery of court expenses. 

Rights of appeal should and frivolous litigation should be severely penalized. With a good legal basis for punishing frivolous litigation ample fines would accrue to fund justice. Or at least such laws would free up courts for taking up serious issues.

There is every reason to allow specialized courts to be developed. Our current era of specialization should reflect on our judiciary as well. Financial transactions could be handled by specialized courts as could property rights cases. Cases involving economic policy issues could be heard by some special courts where there could be serious economic analysts assisting judges or even serving as judges.

The right of appeal too needs to be seriously reviewed and must stop somewhere and not be merely used to delay justice. Most transaction law should stop in the high court allowing the
Supreme Court to specialize in constitutional and fundamental right issues.

Training and retreats should be held by the judicial academy selectively for all levels of the judiciary to reflect on the state of justice periodically. I see no reason why the Supreme Court should not annually hold a retreat to review judicial work including theirs over the year.

Economists have long recognized the importance of the legal and judicial framework for the economy. We have also seen the impact of judgments that have not been informed by economic analysis. Judicial reforms of the kind I am suggesting will have deep ramification for our economic prospects. It is important that this should become the subject of discussion in our country. Possibly then it will be taken seriously by the government and the judges.