Justice Mansoor Ali Shah stresses need to develop ‘firewall’ around judicial system to deter interference

The Supreme Court’s Justice Mansoor Ali Shah on Saturday said that developing a firewall around the judicial system was “very important”, adding that there cannot be any external interference in the judiciary.

The judge’s remarks come amid the situation revolving around the allegations made by six Islamabad High Court (IHC) judges against interference in judicial affairs by the country’s intelligence apparatus.

On March 25, six IHC judges — out of a total strength of eight — wrote a startling letter to the Supreme Judicial Council (SJC) members, regarding attempts to pressure judges through abduction and torture of their relatives as well as secret surveillance inside their homes.

The letter was signed by judges Mohsin Akhtar Kayani, Tariq Mehmood Jahangiri, Babar Sattar, Sardar Ejaz Ishaq Khan, Arbab Muhammad Tahir and Saman Rafat Imtiaz.

A day later, calls had emerged from various quarters for a probe into the investigation, amid which CJP Isa summoned a full court meeting of the Supreme Court’s (SC) judges.

After a meeting between CJP Isa and Prime Minister Shehbaz Sharif on March 28, the duo decided to form a commission to investigate the concerns of interference in judicial affairs following the cabinet’s approval. However, former CJP Tassaduq Hussain Jillani, who was appointed to head the commission, subsequently recused himself from the matter, leading to the apex court taking a suo motu notice of the issue.

On April 3, CJP Isa asserted that “any attack” on the judiciary’s independence would not be tolerated as he hinted at forming a full court to hear a suo motu case pertaining to allegations of interference in judicial affairs.

Addressing the 5th Asma Jahangir Conference with the theme of ‘People’s Mandate: Safeguarding Civil Rights in South Asia’, Justice Shah said: “Firewalling is very important. There can be no external interference in our affairs. The judiciary will stand united against any interference that comes into our system and we take it seriously.”

Announced by the Asma Jahangir Legal Aid Cell (AGHS), the two-day conference is being organised in collaboration with the Supreme Court Bar Association (SCBA) and the Pakistan Bar Council (PBC).

The judge said that the apex court bench hearing the suo motu case on the IHC letter was also looking into a firewall against interference.

Justice Shah said that all institutions must realise that “if there is no justice then they cannot exist”, adding that it was better for everyone if the justice system worked independently.

“Every institution is weakening itself if you weaken the justice system,” he said.

“The justice system has to be strong, robust and independent for all the other institutions to develop, grow and prosper,” he added.

Judiciary should use AI tech to give expeditious, inexpensive justice

Justice Shah said technology and artificial intelligence (AI) were important if the courts wanted to provide expeditious and inexpensive justice.

“If we don’t bring technology or AI into our systems and keep moving on the registers in a colonial manner then we cannot address the 2.4 million cases,” he said.

He said it was important that the system incorporated the data on the dashboard which carried out the analysis.

“When we ask for data, we get it on an Excel sheet which doesn’t talk to us,” he said adding that colour coding and “smart technology” would ease the burden.

Appointment of the judges

Justice Shah said that the judiciary needed to revisit how the judges were appointed at all levels and look at the examination pattern followed.

“The appointment process has to be state of the art,” he said, adding that judges should only be appointed on merit.

“We have to be clear about the person we are inducting as a judge because he has to stay in the system for 20 years,” he said.

He also said that judges who are not performing in the system should be expelled immediately.

“If a judge is incompetent, sluggish or he doesn’t work, he should be kicked out on misconduct,” he said

“We have to make our Supreme Judicial Council (SJC) more empowered,” he said adding that the SJC could not tolerate corruption and incompetence.

Justice Shah said that the appointment of cases was another matter that needed to be addressed, adding that the best decision in the matter was the Practice and Procedure Act which regulated the bench of the Supreme Court.

“We have to strengthen the Practice and Procedure Act,” he said, adding that the institution was very “Chief Justice-specific-centric-driven”.

Alternate dispute resolutions

Justice Shah said that Pakistan needed to adopt the alternate dispute resolution (ADR) system to ease of the burden on the courts.

He said that ADRs helped people settle their matters in front of a mediator.

The judge added that the vision was to establish mediation centres in all districts which would explain to people that it was not necessary to proceed towards litigation, rather the matter could be solved in the centre.

“Ninety per cent of cases in the world go for mediation, arbitration and only 10pc are handled by the courts. In Pakistan, 100pc are handled by the courts, which is wrong.

“Arbitration is such a good law that you would have to move away from litigation [completely],” he said.

“Litigation is your last recourse, you must first try to mediate, arbitrate and only then go for litigation,” Justice Shah added.

He said that every day, there were approximately 4,000 cases filed in higher courts while around 70,000 cases were filed in district judiciary courts.

“If you don’t bring the avenues for mediation and arbitration, the system will get clogged,” he said, reminding that Pakistan had 4,000 judges in all courts.

“There are 13 judges per million [in Pakistan], the average international benchmark is 90 judges per million,” he said, adding that Pakistan would need a strength of 21,000 judges to meet the international benchmark.

He also said that in Pakistan, there were about 238,000 lawyers in a country of 231m.

“In the UK, there’s one lawyer for 203 people, in Pakistan there’s a lawyer for 1000 people,” he said.

“We need more lawyers but genuine lawyers,” he said.

Justice Shah said the Law and Justice Commission would hand over a “state of art” arbitration law to the law ministry for legislation on May 2 which would give the common person an avenue to carry out their domestic arbitration in the ADR centre in their zillas and improve the economy by building an international commercial arbitration centre in Islamabad.

“You spend millions of dollars and go to England for these cases, you would have an in-house facility in Pakistan,” he said.

Justice Shah said that commercial courts were prioritised all over the world as they boosted the economy.

“We have no commercial court,” he said adding that the arbitration law planned on making a commercial corridor in Pakistan.

System cannot work with adjournments, strikes and stay orders

Justice Shah said that, according to a report published by the World Bank, 80pc of the delays in cases in Pakistan were because of adjournments, adding that the system also could not afford strikes by lawyers every other day.

“We have lost a cricket match so we found out that there’s a strike in Gujranwala,” Justice Shah said. “Is this the way a system runs?”

He said that the legal fraternity should be mindful of the price people pay to come to the courts.

“People sell their livestock to come to court and you say there is a strike because we have lost a cricket match,” he said.

He stated that the stay-order culture had to end, adding that the system would not allow the mafias to manipulate the system.

Perspective missing in judicial understanding

Justice Shah said that Pakistan’s gender representation in the judiciary was “very poor” and that there was a perspective missing in judicial understanding.

“A woman would look at the whole issue differently, it has to be a totally different lens, we are missing that lens,” he said, adding that the involvement of women would enrich the jurisprudence, bringing in a new perspective.

“There are 562 women judges in Pakistan out of 4,000 which is around 16pc,” he said.

“We have to increase this, we have to take special steps towards this […] We get them involved in all decision making,” he said.

The judge said that gender representation was critical in a country which had 50pc women.