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Friday May 24, 2024

Judicial problems

By Dr Murtaza Khuhro
July 02, 2023

Pakistan was born with inherent challenges. The three significant administrative institutions that Pakistan inherited were uninvolved in the movement towards independence; they were not only kept separate from politics but were also conditioned to be loyal to colonial masters. Trained in a culture that inculcated a sense of superiority over their 'subjects,' they were largely disconnected from the public.

The judiciary was one such administrative institution. Many judicial officers came from the Indian Civil Service, and upon gaining freedom from their colonial masters, they transitioned into the new rulers of their former 'subjects.' The All-India Muslim League, leading the campaign for a new country, was in no position to govern the fledgling state effectively. Therefore, governance largely depended on these highly organized, trained, and institutionalized administrative institutions.

The tumultuous history of Pakistan is the story of the tripartite rule of these administrative institutions. They often collaborated, but unfortunately, their actions often seemed to let down the people. It is no surprise that the administrative institution with the most power dominated the other two, and the remaining two rarely opposed their more powerful counterparts.

Integrity and dignity are vital for cleansing the stains of falsehood and distortion from the written and spoken history of this nation. It wasn't only Justice Munir and his colleagues who ended up betraying the constitution in the Federation of Pakistan v Maulvi Tameezuddin Khan case, setting the precedent of the Doctrine of Necessity. In the Dosso case, even Judge Alvin Robert Cornelius joined the collective decision to abrogate the constitution, using Hans Kelsen’s General Theory of Law and State as justification.

The judges of the Supreme Court failed to oppose the desecration of the country's first constitution. Rather than invoking the writ of quo warranto against General Ayub, they submitted to the ruling dictator, serving him and his successor with loyalty and humility. Judge Cornelius also served as the chief justice and law minister during the unauthorized regimes of Ayub and Yahya.

However, when the military rule ended on December 20, 1971 the Supreme Court judges exhibited courage in deciding the Asma Jilani case, overruling the Dosso case and rejecting the Doctrine of Necessity. Unfortunately, this resolve faltered after just five years. The judges failed to invoke Article 199 of the newly adopted 1973 Constitution, and the ghost of Justice Munir reappeared in favour of dictator Zia in the Nusrat Bhutto case.

The judiciary did not protest the abrupt removal of Chief Justice Yaqoob by the dictator, nor did they resist the alterations made to the 1973 constitution by Zia. After Justice Yaqoob's dismissal and the withdrawal of the 5th and 6th amendments, Justice Anwarul Haq was appointed as the new chief justice. He not only sanctioned martial law and the Doctrine of Necessity but also allowed Zia to modify the constitution. The Doctrine of Necessity was again endorsed when Zia's dissolution of the National Assembly in 1988 was declared unsustainable, and yet the restoration of the Assembly was denied. Renowned advocate Hamid Khan describes the period of the Haleem Court (1981 to 1989) as a dark era in the history of the Pakistani judiciary.

The legacy of Justice Munir and Justice Anwarul Haq continued with Justice Irshad Hassan Khan, who legitimized the military takeover by dictator Musharraf, allowing him to alter the constitution at his discretion. His court also permitted the violation of Article 8 of the constitution and upheld the NAB law.

Despite the dark moments of the Pakistani judiciary's history, there have also been moments of light. However, this piece has mainly highlighted the more troubling aspects, as they cast a longer shadow.

The dire situation of the country necessitates introspection from our judiciary and those who have manipulated it for their gain. An effectively functioning judicial system, bolstered by digital technologies, can instill confidence among the people, paving the way for peace, stability, and progress. A functional judiciary ensures rule-based governance, guaranteeing rights like those that enabled countless innovations in the 18th century United Kingdom.

Our judicial system is rooted in the adversarial system, a tradition of common law that dates back centuries. Upon becoming part of the Commonwealth countries, we adopted this system at a time when the internet and digital technologies were nonexistent, let alone advanced concepts such as generative artificial intelligence and its associated tools. However, the world has changed. Even in the United Kingdom, the adversarial system has been revised to include tools that facilitate the discovery of truth, similar to the civil law system prevalent in continental European countries.

Despite these global advancements, our judicial system continues to rely on outdated methods that have been in use for the past 75 years. Inside our courtrooms, very little has changed in the way cases are conducted and managed. We have taken some minor steps toward modernization, such as the occasional use of video conferencing and the electronic communication of cause lists to advocates. However, these efforts barely scratch the surface of what needs to be done.

The volume of litigation today depends on a myriad of factors, including population growth and economic transactions, which have increased exponentially in recent years. These cases, now in the hundreds of millions every day, cannot be effectively managed using primarily manual, antiquated systems. Our case management and docket systems have yet to be modernized and digitized. It's not uncommon for one to wait excessively for a true copy of a court order, or for files to get mixed up and lost in administrative rooms.

In contrast, digital transformation has permeated government processes and public service delivery systems across all continents. This transformation is critical for systems to function optimally. The lack of digitization and digitalization in our system is a significant reason for our chronic case backlogs. Regrettably, there are instances where people die or are wrongfully punished before their innocence is established in court.

Several countries have made strides in implementing digitization and digitalization, with Singapore and Estonia leading the way. Even Pakistan's Chief Court of Gilgit-Baltistan has introduced digitization and digitalization in their court system. It begs the question as to what is preventing our Supreme Court and the five high courts across the country from transitioning away from their outdated methods. Introducing these technologies can transform their entire operations, enhancing efficiency and justice delivery. The time to act is now.

The writer is a high court advocate and former civil servant.