‘If frivolous cases are brought to the SC penalties should be imposed’

KARACHI: Senior advocate Anwar Mansoor Khan has had a storied legal career, with over three decades of experience in the profession. He served as a judge of the Sindh High Court in 1999 from where he resigned in 2000 and rejoined law practice. He was appointed the advocate general of Sindh in 2002 and remained in that office for a period of five years. He has also served two stints as the attorney general of Pakistan, the first from 2009 till 2010 and the second from 2018 till 2020.

Earlier in his career he was commissioned in the Pakistan Army in 1971. After the 1971 war, upon return in 1973 after serving as a prisoner of war, he opted to quit the army and sought premature retirement. On leaving the army in 1974 he started pursuing the profession of law.

Here he discusses issues concerning the judiciary with Bol News.

More than 50,000 cases are pending before the apex court. Your take on this?

Yes, there is a pendency of around 50,000 cases in the Supreme Court (SC). And that, instead of it being reduced, this figure unfortunately has increased. It is difficult to explain as to how this increase has taken place. However, from the data available, it is apparent that during the year 2021-2022 substantial number of fresh cases were filed which were more than the number disposed of.

Moreover, the SC is loaded with appeals from the high courts, the services tribunal, and a very substantial number of suo motu cases that remain pending.

The SC is a court which is the ultimate court, and the appeals are thus brought by all individuals and persons. In my view there should be a very strict policy for entertaining cases and if frivolous cases are brought to the SC fines and penalties should be imposed, which would deter the people in bringing cases to the apex court. One can also suggest the creation of a Supreme Constitutional Court, where the violation of the Constitution, constitutional Issues and political cases could be taken up. This would substantially reduce the workload and pendency.

Your take on justice delayed is justice denied with reference to our judicial system?

Your query as to justice delayed is justice denied with reference to our judicial system is an especially critical issue.  However there is another saying that “justice hurried is justice buried.”

The courts are bound to hear cases in [their] entirety, which takes time. Article 10A has been introduced in the Constitution by the 18th Amendment in 2010, that there should be a fair trial. There are numerous ways that have been suggested to overcome the delays. One is the increase of the number of judges in the higher courts namely the high court. Secondly, the grant of adjournments at the request of the lawyers should be avoided.

Is it because the judges are overworked or not competent?

I would not hesitate in saying that the recent appointments of judges are not up to the mark.

Where merit lacks, quality reduces and where quality reduces, it affects the overall competence of the judges. I would suggest that there be a collegium of parliamentary leaders, the senior advocates, members of the Pakistan Bar Council and the provincial bar councils, the advocates general and the attorney general with four senior-most judges, a retired senior judge, the judges of all the high courts. The appointment should be by ballot/points given to each nominee.

The nomination of judges for the high court should be by majority of the full court of the provincial high court and for the SC by the full court through ballot. Not only is competence an issue, but the judges are also overworked. On an average almost 60 to 80 cases are fixed before a judge. Disposal of so many cases is almost impossible which are then adjourned for three weeks or more. [The] number of judges need to be increased substantially and it should be incumbent upon the lawyers to proceed with the cases.

What measures should be taken to clear
the backlog?

Unfortunately, the older cases are put aside and are not proceeded with. We the lawyers are partly to be blamed. Lawyers do tell the clients with weak cases that they would be able to cause delays, and this is what is done, which in addition to the reasons stated above is a major cause for the delays.

Additionally, it is important to note that we are truly not following the Civil Procedure Code, where there are numerous ways of disposing of cases at an early date. For example, Section 10 of the Civil Procedure Code gives a way to conclude the cases at a very early date.

Justice is considered a hallmark of functioning states. Where does the Pakistan judiciary stand?

Unfortunately, Pakistan does not enjoy a great reputation as far as our judiciary is concerned. Judiciary in Pakistan has dropped to 120th out of 128 judicial systems in the world ranking.

This figure may or may not be correct, however we are not the best of the judicial systems. Numerous examples can be given that political cases are taken up out of turn, whereas the regular cases are left behind. This needs to be stopped immediately and cases should be taken in turn.

How do you compare Pakistan judiciary with that of India or Bangladesh?

It will be very difficult for me to truly answer this question for the reason that I am not much aware of the Bangladesh or Indian judiciary system. However, taking the Gallup figures of the five neighbouring countries, Pakistan stands second last, that is fourth, below India and one score above Bangladesh. I would however hesitate in answering this question for lack of personal knowledge.

Why don’t good lawyers become judges?

Good lawyers accordingly as you are saying do not become judges may be incorrect perception of views. Good lawyers are not invited most of the time to become judges.

In my personal experience, the method of appointment and the manner of choice of judges should be provided by rules or the law. The judges should be appointed from amongst the best lawyers. Approach to becoming judges should be curbed.

Merit should be the criterion. The salaries and perks today of judges in all courts are extremely good where good lawyers could contribute to the betterment of the judiciary should they become judges.

It’s said that if somebody hires a well-known lawyer, he wins 50 per cent of the case as the less-qualified judge remains under pressure?

I do not tend to agree with this. Why the well-known lawyers do better than the others is not because of their pressure on the judges, but because of their preparation and method of arguments by placing their arguments and bringing the precepts of their clients in a manner as is understood by the court.

The law and precedents are cited by which they win cases. I must emphasize that good lawyers argue better. Thus the difference between a good lawyer and an average lawyer or a poor lawyer is always there.

Are conditions in the lower judiciary
even worse?

I absolutely agree that the lower judiciary is not what it should be. The condition of the courts, the availability of books, and the staff is pathetic. The method of appointment of judges in the lower judiciary is a question mark. The judges should be appointed again on merit through tests and should be trained before they enter the judiciary.

The training should be as to how to write judgments, the laws and the mannerism of courts. All these are missing, for the reason that the lower court judge is appointed after two years of his practice which is not sufficient.

What’s the job of the attorney general?

Article 100 of the Constitution of the Islamic Republic of Pakistan clearly defines the role of Attorney General [of] Pakistan where it is provided that it shall be the duty of the Attorney General to give advice to the federal government upon legal matters and to perform such duties of legal character that may be referred or assigned to him by the Federal Government.

In performing the functions and duties the Attorney General has the right of audience in all courts and tribunals of Pakistan. It is unfortunate that this provision of the Constitution is not being followed. The Attorney General of Pakistan has been placed under the law ministry. The post of attorney general is constitutional and cannot be subordinate to a law minister.

Your achievements as attorney general?

My achievements as Attorney General for the number of years that I have been there are with regards to settlement of the Karkey’s case, substantial negotiations in the Reqo Diq case, which is bearing fruit now, securing of assets of Pakistan abroad, arguing the case of Pakistan before the ICJ in the case of Kulbhushan Jadhav. Numerous tax matters were dealt with by me. The dispute relating to subsoil water was resolved, many other cases were argued that were pending before the Supreme Court of Pakistan.

Problems you faced as attorney general?

The Attorney General is governed and commanded by the law ministry. The Attorney General cannot work independently and therefore faces numerous problems, such as the appointment of subordinate officers and additional and deputy AGs in the office of the Attorney General. The political interference in appointments and other matters is a major problem that is faced in the office of the Attorney General.

How do you compare quick decisions in martial law courts and inordinate delays in civil courts?

The comparison between martial law courts and civil courts is not appropriate. Comparisons are made with equals. It seems, to compare the martial law courts with other courts usually would not be appropriate. The martial law courts are not bound by the usual laws and the law of evidence, whereas for the civil courts a methodology is provided by the law and the Constitution.

How do you sum up the performance of the Pakistan judiciary as a whole?

I have my concerns. It could be made better, whereby the performance of the judiciary as a whole could be improved for serving the citizens.