Daily Times

An ideal judiciary would be one that is free of external influence. Pakistan, in the international treaties that it is a signatory to, has bound itself to the provisions relating to the administration of justice, fair trials and the equality of all people in the eyes of the law. But things do not look favourable in Pakistan because the independence of the judiciary has not been ensured by the state in spirit, thus leaving the system lacking in many ways to assert its reliability and confidence. It is true that the long march of 2008 for the restoration of the judiciary was a positive step. It reflected the need of society to fight for an independent judiciary, especially from the clutches of the army and politicians, who use the judiciary for their benefit, but there is still evidence that judges are not able to operate without pressures from the powerful.

Delayed justice is the result of a wavering judicial system, as a large number of cases are still pending in the courts across Pakistan. At present, there are about 1.8 million pending cases in the Supreme Court, High Courts, and the district courts. About 55 of the seats of judges are vacant and there is a serious concern about the administrative loopholes in the judicial system. In the lower courts, judges work in ill-equipped offices and have to go through 200-300 cases daily, which makes it impossible for them to come to timely rational judgments. The delays are not only due to administrative issues but also due to the intimidation of the judges and lawyers and the contradictions between the constitution and Islamic provisions of the law, which are subject to various interpretations. Though not being legally binding, the comments of the Council of Islamic Ideology can result in unjustified delays and unnecessary influence over the working of the judiciary.

There is a recorded history of judges being targeted and intimidated. In March 2012, a lawyer attacked a civil judge at a Faisalabad Sessions Court and hurled abuses at him for rejecting bail to a defendant accused in a robbery case. The lawyer was handed over to the police but was freed by his compatriots, who continued to hurl abuses at the judges, resulting in the judicial staff leaving work in protest. The mob psychology that is fermented with religious sentimentalism has resulted in a culture of fear, which makes it impossible for the judges to work without pressures. This is most commonly observed with the judges involved in blasphemy cases. Rashid Rehman, a lawyer of a defendant accused of blasphemy, was openly threatened in the courtroom and in front of the judge by his opponents and was subsequently assassinated, yet no action was ever taken against those threatening him. This incident has caused the case to take a backseat, instilling fear in the judges who are hearing the case. Judge Pervez Ali Shah, who initially dolled out a death sentence to Mumtaz Qadri, the murderer of late Governor Salmaan Taseer, received threats to his life that caused him to flee the country with his family. On May 20, during the hearing of a case involving three Ahmedis accused of celebrating a religious day in their prayer centre and holding a seminar, the plaintiff arrived in court with dozens of mullahs who caused an uproar in the courtroom whenever the case was turning against the plaintiff. The purpose of bringing the mob into the courtroom was clear: to intimidate the judge to pass a verdict in their favour.

In May 2012, Gabriella Knaul, the UN Special Rapporteur on the Independence of Judges and Lawyers visited Pakistan on an 11-day tour on the invitation of the government to observe the judicial system, the findings of which she presented in her report in April 2013. She expressed grave concern over the physical protection of the judges and lawyers, poor facilitation of their work, meagre government resources allocated to them and a lack of uniform legal jurisprudence to all citizens. In FATA, Gilgit-Baltistan and Azad Kashmir, certain laws are not applicable. She recommended that the government should set up a mechanism to protect the lawyers and judges, initiate a witness protection programme, amongst many other suggestions.

In security-related cases, there is little evidence to prove the role of the establishment in the judicial system. However, when it comes to their indirect involvement, that is something that must not be ignored. For example, army personnel cannot be tried in civilian courts under the Army Act 1952. In a case of missing person in 2013, the Supreme Court was told categorically by the military intelligence that it cannot try its officers in civil courts. The army’s prevalent influence has resulted in establishing military courts to try civilians involved in terrorist activities. This act has dangerous long term implications. Not only will it implicate suspects without any transparency, but it will further demoralise the judiciary and can seriously hamper its progress.

Courts in general are intimidated and poor in their performance because of a lack of protection amidst the threats that the judges receive. There are many cases in which suspected terrorists have been acquitted for want of evidence. Between 2007 and 2013, 10,387 terror suspects have been let go by the courts. According to a government document, nearly 60 to 70 percent of the suspects released by the courts have resumed their militant activities. While it may be easy to justify military courts to try the suspects instead, the real issue of the plight of the judiciary in Pakistan remains unanswered. There is a desperate need to endorse accountability, capacity building and more budgetary allocation to the judiciary to make things better. Unless there is a will to do away with the fear in this institution, the state of the judiciary will remain bleak.

The writer is a freelance columnist and may be contacted at zeeba.hashmi@gmail.com