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January 4, 2017
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The need for judicial reform

Opinion

January 4, 2017

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With the appointment of Justice Saqib Nisar as the 25th chief justice of Pakistan on December 31, 2016, there are expectations that the much-needed reforms in judicial system will take place. The new CJ has in-depth knowledge of the maladies faced by the system and possesses the desire to remove them.

Our existing judicial system, dating back to the colonial era, has not changed, except for the introduction of a patchwork of so-called Islamic laws and the establishment of the Federal Shariat Court by General Ziaul Haq. The two conflicting legal systems have not served any useful purpose for the dispensation of justice. The maxim ‘justice delayed is justice denied’ most aptly describes the essence of our prevalent judicial system

At the time of Independence, we had judges of unquestionable reputation, competence and integrity. Mian Abdul Rashid, the first chief justice of Pakistan, was a man of unimpeachable character, who refrained from attending government gatherings and public functions. His successor, Justice Muhammad Munir – for his judgement in the Maulvi Tamizuddin case and a few others – did become controversial, though his critics seldom realise that it was actually the failure of the political elite that paved the way for recurring unconstitutional rules for which the judiciary could not alone be blamed.

One cannot, however, forget some of his great successors – such as Justice Shahabuddin and Justice A R Cornelius – who demonstrated high standards of judicial conduct, even in the tumultuous years of our political history.

In the post-Independence years, the dilemma of our judiciary remained the perpetual failure of our political leadership. The judiciary was approached many a time to determine the validity or otherwise of capturing state power by men in uniform. In The State v Dosso, Chief Justice Munir called the imposition of martial law a “successful revolution”. However, Justice Hamoodur Rehman in, Asma Jillani v Government of Punjab referred to it as the “usurpation” of people’s rights. In Begum Nusrat Bhutto v 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”. General Musharraf not only got three years to hold elections but was also granted the right to amend the constitution. However, defiance by the judiciary to the same Musharraf changed the entire judicial landscape.

For the judiciary, November 3, 2007 was the beginning of a new era. A dictator imposed a judiciary-specific martial law – this time, the victims were not politicians but the judges. For the first time, it was an issue of survival for those who had mostly sided with the khakis against the mufti. The people’s street power from March 9, 2007 to July 20, 2007 and from November 3, 2007 to March 16, 2009 culminated in the restitution of the CJ on March 22, 2009. The Supreme Court conveyed a change of mind in its decision of July 31, 2009:

 “Before parting with the judgment, we would like to reiterate that to defend, protect and uphold the constitution is the sacred function of the Supreme Court. The constitution in its preamble, inter alia, mandates that there shall be democratic governance in the country…principles of democracy, freedom, equality, tolerance and social justice…shall be fully observed…While rendering this judgment, these abiding values have weighed with us. We are sanguine that the current democratic dispensation comprising of the president, prime minister and parliament shall equally uphold these values and the mandate of their oaths”.

The spirit of the above judgement was later reflected in Clause (2A) of Article 6 of the constitution, inserted through the 18th Amendment, which says that an act of high treason mentioned in clause (1) or clause (2) shall not be validated by any court, including the Supreme Court and high courts.

Political parties must understand the ramifications of bringing political disputes in the apex court, which works within constitutionally-defined limits. The government of the day must also realise that if people are not getting their rights and corruption is a norm, the judiciary will have to intervene proactively as per the supreme law of the land.

The Supreme Court and high courts are constitutionally obliged to curtail the arbitrary exercise of powers by any organ of the state as their main role is the protection of fundamental rights of citizens under all circumstances. It is their first and foremost duty. While maintaining the supremacy of the constitution – a sanctimonious document representing and expressing the supreme will of the people – the courts should also ensure the quick disposal of cases pending with them.     

We need comprehensive reforms to remove snags in the dispensation of justice. Our judicial system is marred with inefficiency and inordinate delays. Great challenges lie ahead for the new chief justice to overhaul the entire judicial system and make it efficient. Tragically, our courts are still following outdated procedures and methods whereas many countries have adopted an e-system for filing cases and ensuring their quick disposal through a fast-track follow up, using the offices of magistrates at the grassroots levels.

The main aim of judicial reforms should be to eliminate unnecessary litigation and facilitate the smooth running of affairs between the state and its citizens. Once both learn to act within the four corners of the law, there would be no need for enormous litigation.

It is painful that the government is the main litigant. It usurps the rights of people and then drags the poor citizens into court. It is hoped that the apex court under the new chief justice will establish a commission to determine the reasons for this morbid state of affairs and rectify the situation. The main purpose of judicial reforms should be to end unnecessary litigation. For this, all the three pillars of the state – the legislature, executive and the judiciary – will have to work together.

 

The writer is an advocate of the Supreme Court and adjunct faculty at LUMS.

Email: [email protected]

Twitter: @drikramulhaq

 

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