Daily Times

History of existing laws and judicial structures in Pakistan dates back to the British colonial era — since independence nothing substantial has changed in the Anglo Saxon system except a patchwork of so-called Islamic laws and establishment of Federal Shariat Court by General Ziaul Haq. Two conflicting legal systems have given undue advantage to the police alone for self-aggrandisement rather than serving any useful purpose for dispensation of justice. The maxims ‘justice delayed is justice denied’ and ‘justice hurried, justice buried’ most aptly describe the essence of our judicial system, which desperately needs all-out reforms, at all levels.

In an early column titled ‘CJP and judicial reforms’ was published in Daily Times which provided, analysis and bifurcation of the total pending cases in various courts and tribunals. Moreover it discussed how to settle the same through fast-track courts and other means such as dispute resolution mechanism etc.

As expected, those who matter in the land paid no heed and since then pendency has increased and debates are still going on how to liquidate the monstrous backlog of over 1.5 million cases. As usual, committees and task forces have been constituted by the new government, as done by their predecessors, which means doing nothing but posing to be proactive! Strange, but a bitter reality, that no homework was done by Pakistan Tahreek-i-Insaf (PTI) before coming into power, on how to bring fundamental reforms in the administrative and judicial outdated, outmoded structures that have failed to deliver.

On independence, we inherited a competent judiciary. Mian Abdul Rashid, the first Chief Justice of Pakistan decided not to attend government gatherings and public functions. His successor, Justice Muhammad Munir, for his judgements in the ‘Maulvi Tamizuddin’ case and few others did become controversial, though his critics never questioned his legal acumen and intergrity. How can one forget some of his great successors like Justice Shahabuddin and Justice A.R. Cornelius, who set very high standards of judicial propriety in our tumultuous years of existence?

In post-independence years, the challenge faced by higher judiciary was sanctifying martial laws after the perpetual failure of political leadership, to resist the same with the people’s power. Judiciary was approached time and again to determine the validity or otherwise of capturing State power through the barrel of gun. In The State v Dosso [Chief Justice Munir called it a “successful revolution”, but Justice Hamoodur Rehman in Asma Jillani versus Government of Punjab dubbed it as “usurpation”.

History of existing laws and judicial structures in Pakistan dates back to the British colonial era – since independence nothing substantial has changed in the Anglo Saxon system except a patchwork of so-called Islamic laws and establishment of Federal Shariat Court by General Ziaul Haq

In Begum Nusrat Bhutto versus Chief of Army Staff came yet another endorsement of the doctrine of necessity wherein “intervention” was declared lawful “in the best and larger interest of the nation.” Musharraf not only got three years but also the right to amend the Constitution. Then came a revolt against him and in the wake of “defiance”, the entire judicial landscape changed. Symbolically, a new ‘judicial Pakistan’ emerged on March 16, 2009. Since then the top judicial organ is a power to be reckoned with — little has been done by it to reform judicial system but main occupation remained with suo muto actions.

The famous quote by French critic and journalist, Jean-Baptiste Alphonse Karr that “the more things change, the more they remain the same” aptly describes our colonial judiciary that believes in dispensing vernacular justice — qanoon sadda chale ga [law is what we determine]. The existence of colonial laws and judicial structure that is not dispensing justice to the less-privileged is the real dilemma faced by Pakistan since its birth.

No doubt that the higher judiciary should play its vital role of curtailment of arbitrary exercise of powers by any organ of the State. Its main role is protection of fundamental rights of citizens under all circumstances. It is the first and foremost duty of higher courts to maintain the supremacy of the Constitution, which is a sanctimonious document representing and expressing the supreme will of the people. But it is equally important that the apex court passes an order for comprehensive reforms to remove snags in the dispensation of justice. The honourable Chief Justice of Pakistan has repeatedly said that the judicial system was marred with inefficiency and inordinate delays. But remedial actions are still not taken.

The daunting challenge for all of us is establishing a true democratic polity based on constitutional supremacy, rule of law and equity. The long military rules and in between experiments of ‘controlled democracy’ denied the people of their sovereign right of self-governance. Subsequently a dictatorial mindset prevails in all state organs.

The so-called reforms like Article 175-A as amended through 19th Constitutional Amendment and National Judicial Policy containing various short-term and long-term measures for early disposal of cases have proved insufficient. The real need is of comprehensive reforms — unless causes for litigation in society are not curtailed through good governance and providing socio-economic justice, the judicial system will remain choked. More and more judges will be required to cope with the ever increasing number of cases at all levels. Their disposal rate will always be outpaced by new cases filed.

It is a pity that our courts are still following the outdated procedures and methods whereas many countries have adopted an e-system for filing of cases and their quick disposal through fast-track follow up using the offices of magistrates at grass root levels. The main aim of judicial reforms should be elimination of unnecessary litigation and facilitating smooth running of affairs between the State and its citizens. Once both learn to act within the four corners of law, there would be a drastic decrease in litigation.

It is painful that presently governments are the main litigants. They usurp the rights of people and then drag the poor citizens in courts. We all know the reasons for this morbid state of affairs but nobody wants to fix it. Judicial reforms does not stipulate asking for more judges and funds but eliminating unnecessary litigation and its quick disposal and to help reduce its occurrence in the first instance.

It is hoped that Chief Justice of Pakistan before his retirement will strive to remove the root cause of excessive litigation and delays in dispensing of justice. The main aim of judicial reforms should be ending unnecessary litigation and for this all the three pillars of State — Legislature, Executive and Judiciary — will have to work hand-in-hand.

The writer, Advocate Supreme Court, is Adjunct Faculty at Lahore University of Management Sciences (LUMS). He can be reached at ikram@huzaimaikram.com; Twitter: @drikramulhaq

Published in Daily Times, October 7^th 2018.