Judicial reforms in Pakistan: A tricky path

Judicial Reforms In Pakistan



Introduction

The roots of the current judicial system of Pakistan stretch back to the medieval period and even before. The judicial system that we practice today has evolved over a long period of time, spanning roughly over a whole millennium. This system is based on British law. The Supreme Court is supreme, followed by high court and then session courts.

The Constitution of Pakistan deals with the superior judiciary in a fairly comprehensive manner and contains elaborate provisions on the composition, jurisdiction, powers and functions of these courts. The Constitution provides for the "separation of judiciary from the executive" and the "independence of judiciary". It entrusts the superior courts within obligation to "preserve, protect and defend" the Constitution. The qualifications of judges, their mode of appointment, service conditions, salary, pension, are also laid down in the Constitution. The remuneration of judges and other administrative expenditures of the Supreme Court and High Courts are charged on the Federal/Provincial Consolidated Fund, which means it may be discussed but cannot be voted upon in the legislature.

Pakistan's return to civilian government after eight years of military rule and the sidelining of the military's religious allies in the February 2008 elections offer an opportunity to restore the rule of law and to review and repeal discriminatory religious laws that restrict fundamental rights, fuel extremism and destabilise the country. Judicial reforms would remove the legal cover under which extremists target their rivals and exploit a culture of violence and impunity. Ensuring judicial independence would also strengthen democracy at a time when it is being undermined by worsening law and order situation.

Hence it is clear that the constitution of Pakistan contains a detailed account of how the judiciary should be run in this country and clearly states the principle that executive and the judiciary should run parallel. There should be no clash between them for state affairs to run properly. There is a High Court in each province. Each High Court consists of a Chief Justice and other judges. The strength of Lahore high Court is fixed at 50, High Court of Sindh at 28, Peshawar High Court at 16 and High Court of Baluchistan at 9. Article 175 (A) deals completely with appointment of the judges in high court, Federal Shariat Court and the Supreme Court and their promotions.

Pakistan is a developing country that has been facing corruption and nepotism in all its institutions. Judiciary is no exception here. There are two very primary concerns that people have been forced to settle their disputes out of the courts. First, our courts take more time to resolve the issue. Property and murder cases take years to be decided. Most of the time cases go from one generation to other. Second, people are afraid of mishandling cases by police, investigation team and the court procedures. One has to visit court for hundred and thousand times to settle the issue by court. Although our police system is also a hurdle, but this hurdle can be tackled if judicial setup could be maintained according to the requirements of the society. People of Pakistan have basic right to be guarded from criminals and for this judiciary system has to show undiluted resolve and commitment.
Motivated by self-preservation and self-interest, Pakistan's superior judiciary has not just failed to oppose Islamic legislation that violates fundamental rights but has also repeatedly failed to uphold the constitution. While superior courts have validated military interventions, military regimes have manipulated judicial appointments, promotions and removals, steadily purging higher court benches of independent-minded judges. This has pushed the judiciary further to the ideological right. Today, judicial independence is hampered not only by the state but also by right-wing religious groups.

In the case of Pakistan, the judiciary failed to check an extra constitutional regime change. This practice has questioned the judicial independence as well as weakened the confidence of the people on the institution. Technical steps, legislative corrections and reforms cannot revise the role of judiciary. It needs credible commitment by the government to respect the rule of law, a transparent system of judicial appointments and to ensure that judicial decisions are practiced at all levels. The present research focuses on:

(i) The constitutional and political experiences of Pakistan's struggle for democracy

(ii) To link the stability of the political system with the judiciary will create certain debatable issues? The research will conclude that a more comprehensive and coherent policy is needed to tackle this technical as well as political issue. For the survival of democracy and stability of the political system it is important that all the institutions must remain in their described limitations. This strategy will avoid any further bumpy ride of Pakistan's political journey.

There are several laws to be amended and made them impartial. First, Women are biggest victim of Jirga system.They are being handed over to other tribe on the name of watta-satta, being killed in kora-kari or being sold. There must be strong judicial and investigative setup which would handle cases related to women. Most of the time women don't come to court when they are deprived from their status because they fear that court is incompetent to provide them justice. A country cannot prosper without the smooth and equal contribution of women which only be possible when women will be provided due protection from awful environment. Secondly, laws related to minorities must be reviewed and their implementation be ascertained. Cases have been brought in the media that Ahmedi children have been struck from school on being Ahmedi. People have been accused of using blasphemy laws to take their own revenge. Court has to review all these cases and make a strategy to protect the rights of minorities.

Despite the incompetence of Jirgas to handle issues, people still favor their existence because courts take more time in deciding a case. People fear from losing money and time while referring to courts. Therefore, they prefer to go to Jirga rather courts. Before reforming the society and elimination of Jirga system, the judiciary must be reformed and improved so that the people have the confidence that the judiciary will provide justice to them. Judicial System needs to enhance its credibility by functioning properly.

Suo motto actions are admirable. In a society corruption is rampant, the Chief Justice must keep an eye over issues of public concerns. However, there should be obvious reasons before taking such actions. The cases concerning individuals and that are not directly related to the society at large should not be taken by Chief Justice. The issues that should be taken by district court must not be brought in Supreme Court. It is worth recalling the case of a TV artist who was caught with couple of bottles of liquor, and former Chief Justice Iftikhar Muhammad Chaudhry took action on it. Obviously, the media and civil society came out with strong criticism of the action by the then chief justice. A well known senior Pakistan-based journalist Amir Zia wrote in the Newsline Magazine:
"The honorable chief justice must also be aware of the fact that many key lawyers, including some veterans who remained at the forefront – and on his right and left – in the famous lawyers' movement struggling for his reinstatement, are known not just for possessing liquor, but for drinking it too. The chief justice can ask a veteran and knowledgeable lawyer Chaudhry Aitzaz Ahsan about it under oath. He will learn the truth from Ahsan, and we pray to his Lordship to initiate a sue motto against them as well."

In Pakistan, the judiciary is a hierarchical system with two classes of courts: the superior (or higher) judiciary and the subordinate (or lower) judiciary. The superior judiciary is composed of the Supreme Court of Pakistan, Federal Shariat Court and the five high courts. The Constitution of Pakistan entrusts the superior judiciary with the obligation to preserve, protect and defend the constitution. Neither the Supreme Court nor a High Court may exercise jurisdiction in relation to tribal areas, except otherwise provided for. The disputed regions of Azad Kashmir and Gilgit-Baltistan have separate court systems. Judiciary is the third pillar of the state which has to coordinate with other state organs to ensure the provision of basic human rights to its citizens. Supreme Court being the head of judicial system in Pakistan must also have complete mechanism to counter the anti-state activities carried out by internal and external elements.
There is also a Federal Shariat Court comprising eight Muslim Judges, including a Chief Justice appointed by the president. In addition, there are special courts and tribunals to deal with specific kinds of cases, such as commercial courts, Labour Ccurts, an Insurance Appellate Tribunal, an Income Tax Appellate Tribunal, Special Courts for Bank offences etc. There are also special courts to try terrorists. Appeals from special courts go to High Courts except for Labour and Traffic Courts, which have their own forums for appeal. Appeals from the tribunals go to the Supreme Court.

Flaws in the judicial system

People of Pakistan are not satisfied with its judicial system. They believe it is a punishment to file a case due to its tedious time consuming fruitless procedures and hence it is the need of the hour to revise the system. Some of the problems are as follows:

Absence of speedy trial and justice makes the system cumbersome. There is no quick disposal of cases. Be it civil or criminal the cases go on for years, in some cases the circumstances rise to such an extent that during the time of the case either the complainant or the accused dies.
Following are some of the obvious outcomes due to delay in dispensation of justice.
Jails are filled up with prisoners owing to slow legal process. And hence extra money is needed to counter the number of problems faced by these prisoners that include health and hygiene issues
Trust on the judicial system is decreasing at a fast rate due to slow legal process. That's due to lack of legal knowledge among the masses and lack of efficiency in bar councils.
Judges are also indulged in malpractice. Hence justice is not served. A murderer is set free to commit more crimes and an innocent is sent to prison who in turn becomes a criminal to take revenge. There is influence of chieftains and feudal lords to get fair and transparent justice, especially in rural areas and tribal belt of the country.
One major problem is the lack of awareness about the judicial system of this country amongst the masses. People are, therefore, exploited by the lawyers.
The Judicial policy 2009 which was to target corruption is not being implemented in letter and spirit.
There is Lack of coordination between judiciary and police in order to dispose off cases swiftly. Police exploite the people too.
No sufficient funds allocation by the government for effective administration in the courts
No use of Information technology for filing a case/petition/writ
No computerized record of cases.

Recommendations for fair, transparent and speedy justice in Pakistan

There is an urgent need to reform the judicial system in Pakistan. The recommendations to improve the judicial system are as follows.

Proper legislation by the parliament is required. A law is to be legislated that would bind judges not to adjourn the case for more than 7 days. This point totally depends upon the quick delivery of facts and figures by the police. For this the gap between the police and lawyers should be reduced and the coordination and corporation between them should be entertained.

A committee is formed by Chief Justices of the provinces which will hear complaints of the litigators and other issues pertaining to law. Free legal advisor is provided to deserving and poor people. A committee should be formed that keeps the working of employees in check and determines who is really in need.

E-justice: all cases be computerized and should be disposed off in maximum of 15 days.

Administration of court should be made efficient and effective for speedy judicial system.

Postings, transfers and other related issues of judges should be dealt by superior judiciary instead of law ministry.

Few provision of law should be part of the middle class syllabus for prevention of crime and augmentation of awareness about judicial or legal matters.

Liberal adjournments granted by the subordinate courts and high courts should be discouraged.

Bar council should be more effective and contesters should be honest and loyal.

Judicial investigation wing be set up to verify the fabricated charges.

Salaries of judges should be increased to discourage malpractices

Judicial Education is a branch of education which is more applied than mere theoretical. Thus it is distinct from legal education. Legal education is imparted by the law schools while the judicial education is imparted by the judicial academies/institutions. It focuses on the practical aspect of application of law by the courts in the administration of justice. The usefulness of it can be understood by the fact that a judge is to practically answer all issues raised before him or her in the light of the facts, attending circumstances, evidence and law to show that the confidence reposed by the people in him to determine their rights in accordance with law was fully justified. Laws are limited but the problems are manifold. Each case has its own facts and circumstances, thus the aspects and dimensions are not only diverse but also multiple.


Despite facing unprecedented and grave threats of terrorism, Pakistan has surprisingly not yet instituted a comprehensive and effective legal framework to counter such threats. Moreover, the Government of Pakistan has failed to seize this matter urgently. The nature of the current terrorist threat is clearly distinguishable from the nature of terrorist threats faced by Pakistan in the recent past. Previous counterterrorism legislation and other relevant legal instruments were drafted in the context of sectarian terrorism; however, the nature of terrorism has changed and the current strain of terrorism is aimed at dismantling the State of Pakistan and its institutions.
Administrative measures
While the legislative framework is deliberated upon, certain administrative measures can be taken in the meantime that will improve the efficiency of the existing criminal justice system. Following steps can help improve the functioning of the judiciary in the country.
Executive guidelines to be issued by the provincial governments and federal Interior Ministry for categorizing or prioritizing high profile terrorism cases so that they are given special attention and due care for investigation.

Executive guidelines need to be issued by the provincial governments and federal Interior Ministry establishing a panel of special investigators exclusively dedicated to conducting investigations in categorized high profile terrorism cases.
 
The Chief justice of each High Court will issue guidelines for taking evidence through video to shield witnesses from intimidation.
 
Guidelines to be issued to the police for using and incorporating forensic evidence more effectively in the judicial process.
 
Establish quality assurance review panels in every province comprising of two or three retired judges with experience in both trying terrorist suspects and the related appeals process. The panels would informally examine the evidence and case record before it is filed in court proceedings and make recommendations, where appropriate, to improve the chances of a successful conviction.
 
Guidelines, if and when appropriate, to be issued to improve the safety and protection of judges and courts involved in terrorism cases.
 
Law and Justice Commission to issue draft model guidelines and in certain cases, issue the guidelines themselves.
 
Following provisions of the constitution define the parameters under which the judiciary and civil authority function in order to protect the fundamental and basic rights of the people. Under the preamble of the constitution, each institution of the state is bound to help judiciary in maintaining and protecting the individual dignity and honor. This is possible if the institutions work to create a society that enforces law without any fear or favor. Following provisions define the relationship among different organs of the state.
1] "(1) Loyalty to the State is the basic duty of every citizen … (2) Obedience to the Constitution and law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being in Pakistan." Pakistan Const. art. 5.
[2]"[(1)] The Armed Forces shall, under the directions of the Federal Government defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so…." Id. art. 245.
[3] "Whoever wages war against Pakistan or attempts to wage war, or abets the waging of such war, shall be punished with death, or imprisonment for life, and shall also be liable to fine." Illustration: A joins an insurrection against Pakistan. A has committed the offence defined in this section. Pakistan Penal Code, (121).
[4] The Private Military Organizations (Abolition and Prohibition) Act, 1973 (IV of 1974), (3).
[5] Although the police can register an FIR for attempting an offense, the registration itself puts the offenders on alert.
[6] Regulation of Investigatory Powers Act, 2000, 48 Eliz. 2.
[7] Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified as amended at 50 U.S.C. §§ 1801-1811 (2006)).
[8] Although there is a general provision related to interception under the PTA Reorganization Act 1996, it is insufficient and does not declare the admissibility of the intercepted communication.
[9] "Production of evidence that has become available because of modern devices etc.: In such cases as the Court may consider appropriate, the Court may allow being produced any evidence that may have become available because of modern devices or techniques." Qanun-e-Shahadat Order, 1984, art. 164.

Conclusion

It is extremely important for Pakistan to have a well established judicial system on the pillars of speedy and transparent trial system in order to provide fair justice to the people of the country. Judicial system is a guarantee for the development of a nation as it builds trust and confidence among the masses. It is very necessary to reform the judicial system of Pakistan as it is in the dilapidated condition and only the apex court is now building confidence in the masses. The apex court can not alone solve the problems of the people as almost 90% cases are registered in the lower courts which are so far unable to provide speedy and fair justice to the common men. The above mentioned reforms, no doubt, will change the shape of the judicial system and it will set the nation on the path as envisaged by the Qauid-e-Azam Muhammad Ali Jinnah.

There must be full utilization of the court working hours. The judges must be punctual and lawyers must not be asking for adjournments, unless it is absolutely necessary. Grant of adjournment must be guided strictly by the provisions of the Civil Procedure Code.
2. Many cases are filed on similar points and one judgment can decide a large number of cases. Such cases should be clubbed together with the help of technology and used to disposed off other such cases on a priority basis; this will substantially reduce the arrears. Similarly, old cases, many of which have become infructuous, can be separated and listed for hearing and their disposal normally will not take much time. Same is true for many interlocutory applications filed even after the main cases are disposed of. Such cases can be traced with the help of technology and disposed of very quickly.

Judges must deliver judgments within a reasonable time and in that matter..

Considering the staggering arrears, vacations in the higher judiciary must be curtailed by at least 10 to 15 days and the court working hours should be extended by at least half-an- hour.

Lawyers must curtail prolix and repetitive arguments and should supplement it by written notes. The length of the oral argument in any case should not exceed one hour and thirty minutes, unless the case involves complicated questions of law or interpretation of Constitution.

Judgments must be clear and decisive and free from ambiguity, and should not generate further litigation.

Lawyers must not resort to strike under any circumstances.