State and Majority Will of the People (3)

                             

  

We have already seen in parts (1) & (2) of this article https://secondriseofislam.blogspot.com/2017/10/state-and-majority-will-of-people.html and   https://secondriseofislam.blogspot.com/2017/10/state-and-majority-will-of-people-2.html    that state is a collection of state institutions. State institutions are those vested with legal power; non-state institutions (social institutions) are not vested with legal power. In other words, society is a larger organization than the state; society contains both state and non-state institutions. State and non-state institutions are second name of majority will of the people. It is majority Muslims’ implicit will which approves creation of all state and non-state institutions as every individual of the approving majority has not participated in the creation of those state or non-state institutions. Actually Implicit Will of the people is what is practically shown by the people impliedly (Implicit Will is that is shown silently but practically) : peoples’ desires which are not practically manifested are not peoples' implicit will. That is why peoples' implicit will may also be formed through force as well; a state may be formed forcibly as well, but cannot be established without implicit will of the people. 

As state or non-state institutions survive on the peoples’ active or implied support, in order to enable state or non-state institutions to avail full peoples’ support, such institutions should be in conformity with the peoples’ aspiration so that people/Muslims may protect such institutions from dictatorship of the government. In order to make state or non-state institutions strong ones in an Islamic state/society, such institutions have to be in conformity with religious aspirations of the Muslims. 

In line with foregoing, we have seen in part (2) how economic system in Muslim societies and in Pakistan may be made ‘interest free’. In the succeeding lines we would see how justice system in Pakistan may be modified and developed in lines with peoples’ general and religious aspirations.

Justice system in Pakistan may be broadly divided into three departments: police, prosecution, and judiciary. But the problems pertaining to justice system are relating to legislation as well in addition to these three departments.

In judiciary, we find practical manifestation of proverb “justice delayed is justice denied”. The main reason is acute shortage of judges. Our courts are over-burdened.  According to the Law and Justice Commission of Pakistan (LJCP), upto 2017, there are 38,539 cases pending with the SC, 293,947 with the five high courts and 1,869,886 cases with the subordinate judiciary of the four provinces and the federal capital. In all we have more than 2.2 m cases pending in the courts. The cases pending in special courts like Anti-Corruption Courts, Banking Courts, Labour Courts etc. are not included in this number. The judges, due to shortage of their number, cannot dispose of this huge backlog. Moreover, being over-burdened, the judges cannot hear the cases sufficiently; as a result quality of justice in decided cases is also compromised. Even more worrisome aspect of this problem is that the number of pending cases is increasing at greater pace. In 2009, total pendency stood at 1.6 m; in 2014, at 1.75 m; but in 2017, total pendency stood at 2.2 m and pending cases at special courts are not included in this number. Actually, pendency in first four years (2010-2013-both years inclusive) increased by 0.15 m but in next four years (2014-2017- both years inclusive) increased by 0.45 m. This increasing rate of pendency exists even after increasing rate of disposal by the courts.  For example, the Punjab district courts in 2014 disposed of 1,885,534 cases but received 2,037,110 fresh cases to be decided. Another example is the Lahore High Court which in 2014 disposed of 152,776 cases but there were 144,422 new ones instituted. It can be foreseen, if increasing rate of pendency is not checked, it would become an intractable problem in coming years.

This problem of pending cases is caused by multi-dimensional reasons. But the basic reason is shortage of judges; no solution can be effective without increasing number of judges. . In developed countries, there is one judge to about every ten thousand persons; but in Pakistan we have one judge to about every sixty thousand persons or even more persons as per other estimates. We have to increase number of judges at all hierarchies of Judiciary. Presently we are spending billions of rupees to deliver injustice in the name of justice. If we can deliver justice by enhancing spending five or six times by increasing number of judges five or six times, nothing would be better than it. In order to open blockade to promotion in subordinate Judiciary, new tiers in subordinate Judiciary may be established between Civil Judges tier and District Judges tier, and between District Judges tier and High Courts tier. A judge for every one or two union council/s along-with jury consisting of local notables may go a long way to deliver cheap and speedy justice.

The Punjab Judiciary is in more need to enhance number of judges, particularly in subordinate Judiciary. By breaking up total pendency in 2017 at lower Judiciary, we find Punjab has most number of pending cases. The pendency with the district judiciary of Punjab is 1,184,551, Sindh 97,673, Khyber Pakhtunkhwa 204,030, Balochistan 12,826 and Islamabad 37,753. We can see pendency with Punjab’s subordinate judiciary is above  three times more than the pendency in other three provinces combined. Punjab needs to enhance number of judges  more urgently than other provinces.

Another aspect of shortage of judges is that judges, being over-burdened, cannot adjudicate cases sufficiently and as a result quality of justice is compromised in decided cases as well. Regarding this issue, we may work out percentage of various categories of instituted and decided cases, and reasons of most acquittals pertaining to various categories. Such a data may help us in devising informed policy asto which categories of cases should be allocated more judges. Such a data may also help us in providing an insight and devising informed policies accordingly asto various reasons of acquittal in various categories of decided cases. Resultantly we can remove negative reasons of acquittals including shortage of judges, defective investigation, defective prosecution and defective adjudication.

Speedy and cheap justice is one of the most cherished general and religious aspiration of Pakistan’s people. The present system of justice would not have backing and active support of the people unless and until this system of justice comes up to the general and religious expectations and aspirations of the people. Increasing the number of judges and adding new tiers in Judiciary, particularly in the subordinate judiciary, is the need of the hour, to bring Judiciary in conformity with peoples' aspirations   (continued).