Why are Judicial Reforms being delayed in Pakistan?

DND Thought CenterWhy are Judicial Reforms being delayed in Pakistan?

By Agha Iqrar Haroon

A strong state is like a building whose strength depends on three pillars: Legislature, Administration, and Judiciary. If even one of them weakens, the state weakens. Just as the renovation of the building is necessary over time, in the same way, reforms in the institutions of the state are also of great importance.

   

Unfortunately, our Judicial system as well as our Administrative have miserably failed to cater to social needs and it takes many years to deliver social as well as legal justice to the public. Pakistan is an infamous country in reference to property frauds where properties of weaker citizens are forcefully occupied (Qabza), encroached and even sold by fraudulent owners with the help of the Revenue Department and courts because “stay order” in favor of the oppressor help them to play havoc with poor and powerless. This design of mockery of justice continues in almost every kind of case just the name of the administrative department is changed while the second partner—the Judiciary remains the same.

According to the Law and Justice Commission Report 2024, the number of pending cases has exceeded 2.3 million. On average, a criminal case takes years, not months to get justice, and civil cases take over 10 years to reach a decision.

According to the report, pending cases increased by 3.9% just in the first six months of 2023 while 82% of the total pending cases are in District Courts. Around 18% of the pending cases are in the High Courts.

Our judicial system is ranked 130th in the world ranking (provision of justice to the public) and when asked the reason for this, contempt of court occurs. The dignity of the judges becomes arrogant.

There can be several reasons for ‘delay’ in justice but adding possible reasons like incompetency and unprofessionalism can be called ‘contempt of the court’.

In Pakistan, almost everybody irrespective of the political and social divides is now talking about the issue of “Justice Delayed is Justice Denied”. The public, law practitioners, and academia talk about the situation but the Constitution of Pakistan protects the conduct of the judiciary, and criticizing the judiciary is unlawful. This is one of the reasons that debating the rule of the judiciary is discouraged in Pakistan, resulting in almost no accountability of the judiciary. This is one of the reasons that critical work on this issue is being produced mostly outside of Pakistan by Pakistani academicians living abroad and by foreign writers.

“The Myth of Justice in Pakistan”, authored by Dr Muhammad Bilal who has his LlM and PhD. degrees in Law from the UK indicate that justice in Pakistan has become a myth and an unachievable goal. He believes that there are several reasons for delayed justice including complex procedures, old and ineffective laws, the attitude of judges and lawyers, and the backlog of pending cases in the superior as well as lower judiciary of Pakistan.

Another academic paper written by Hafiz Muhammad Ihsan Zafeer of Shaanxi Normal University China, published in November 2020, titled “Delaying Factors Regarding Civil Justice in Pakistan (Lower Courts)” indicates that because of procedural as well as practical loopholes and existing defective administration of Justice, our Judiciary is not proficient enough in delivering Justice. Because of this, people lost their trust in the Judiciary, and such a situation creates social disorganization.

Dr Bilal is critical in his research. He claims that Pakistani courts require the continuous visits of the suit’s parties, and normally for the decision of any conflict, a defendant makes 72 visits to the courts, and a decision of a case costs nearly Rs 0.2 to 0.3 million to such a party. Continuous visits to courts not only cause a financial crisis but can also have a psychological impact on the suit’s parties. Dr Bilal also claims that the majority of judges have no professional attitude and perform their function only for salary not for justice.

There are numerous cases of public interest on which stay orders have been taken for years. You can look at the case of the Sugar Mafia report or the issue of giving bikes to students by the recent Punjab government.

  • The public perception of the judiciary has become quite objectionable and politicians, media, law practitioners, and even judges of the Supreme Court and members of Bar Councils are raising a series of questions over the conduct of the judiciary that includes:
  • In educational matters (cases against private schools, colleges, and universities) or real estate cases, the stay is taken in favor of the accused party.
  • When a case is pending, it affects not just individuals but entire families.
  • Due to the incompetence of the judiciary, criminals got decisions in their favor. When the courts will not punish the criminals, who will fear the law?
  • Guess a person dies and after his death, the court calls him that a case has been registered.
  • The judiciary is taking over the State’s functioning to favor one political party.
  • Do we want to continue giving unlimited and unchecked powers to our judges?
  • Who has failed to give access to justice to our 220 million people despite 75 years of independence?
  • Who takes an average of more than 20 years to decide a case and still has no regrets?
  • Who have accumulated hundreds of thousands of pending cases in the judicial system and have no concern to give timely justice which is their primary job?
  • Who has failed to develop any effective system to decide business and economic cases – a significant contributor to our economic collapse today?
  •  Who is failing to improve the court infrastructure and systems and is still using the infrastructure and systems mostly left by colonial masters 76 years ago?
  • Who commits the highest level of conflict of interest by refusing to be accountable to anyone except their own selves which is no accountability?
  • Who has failed to ensure the rule of law due to their changing interpretations of the law? (The best example is the Punjab Assembly voting case).
  • Do we want to continue giving them these unlimited and unchecked powers so they continue to make our 225 million people and the entire nation suffer?

These questions look pertinent because this is the moment in Pakistan’s history where parliamentarians as well as the Higher Judiciary can change things for the better by reducing the powers of individuals and giving them the combined wisdom of a few. And if members of the higher judiciary and parliamentarians do not make the right decisions today (presently) and continue giving any institution unlimited powers, then the country will continue to suffer.

Now, if someone questions the competence of the judges or the ineffective judicial system or holds judges accountable for the failure of the judicial system, he is charged with contempt of court, which means that it is bad faith. Look at the case of Faisal Vawda. The fault of Faisal Vawda is that he dared to question the dual citizenship and appointment of the Honorable Judge. Now he is being considered a person who has insulted the dignity of the Honorable Judge.

I believe that the majority of the public has lost faith in the system and the time has come to take Judicial Reforms, otherwise, the poor people and this nation will continue to die in the mill of deputy commissioners, courts, and judges.

I have been writing that one of the most important reforms is the need to review the procedure for appointing judges.

For the appointment of High Court Judges, names are recommended by the Chief Justice of the High Court concerned, but no specific criteria are laid down. The name then goes to the Judicial Commission which approves the name or sends it back for revision.

The Judicial Commission has a majority of judges which reduces the importance of the Bar Council, administration, and other stakeholders in the Commission.

The Commission should have an equal number of representatives of the judiciary, Bar Council, Parliament, and Administration. So that no one can suppress the opinion of another because of the majority and judges are appointed in the high courts of the country with a consensus.

There must be an orderly and transparent procedure for the appointment of judges that may include:

  • His educational qualification
  • Investigation of his assets
  • What is his psychological and mental condition?
  • What is the meaning of his religious or political affiliation?
  • Is he competent to administer justice impartially from the position of a judge?

When the cabinet can sit together day in and day out to run the government, when defense matters are discussed occasionally in the Corps Commanders’ Conference, why is there no serious concern to reform the Judicial System? Why are pending cases, dual citizenship of judges, assets, and appointment of judges not discussed?

Greek philosopher Aristotle in his work ‘Nicomachean Ethics’ says:

Justice is the intellectual and emotional skill that brings about a community possessing a stable system of laws, rules, and customs that further the attainment of its ultimate goal, well-being (happiness). To be just involves possessing all the other virtues as well. The just person will be skilled in resolving disputes, distributing goods, and meting out punishments (reciprocal, distributive, and corrective justice).

Given the above circumstances, now the time has come that Judicial Reforms have to be done to make the state of Pakistan strong. Because the state that cannot strengthen the justice system becomes weaker with time. Therefore, for a clean, transparent, and impartial judicial system, amendments to the Constitution and laws are now inevitable.

 

Disclaimer:

The views and opinions expressed in this article/Opinion/Comment are those of the author and do not necessarily reflect the official policy or position of the DND Thought Center and Dispatch News Desk (DND). Assumptions made within the analysis are not reflective of the position of the DND Thought Center and Dispatch News Desk News Agency.

 

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