Essential judicial reforms

Independence of the judiciary is important for the rule of law, subject to accountability

Essential judicial reforms


hief Justice of Pakistan Qazi Faez Isa assured the Pakistan Bar Council and the Supreme Court Bar Association that the Supreme Court will develop a “comprehensive policy” on the fixation of pending cases and setting up of benches that will outlast his tenure —Geo News, September 20, 2023

“Devising a speedy justice system is a daunting challenge in Pakistan due to the large pendency, frivolous cases where filers go unpunished, frequent adjournments, administrative highhandedness forcing people to go to courts, outdated procedures and paucity of judges. The existing inefficient and outdated judicial system is exploited by money power that hires crafty lawyers to get justice “delayed/ destroyed/ maneuvered.” —A choked justice system, The News (Political Economy), December 2, 2018

“The Supreme Court, of course, has the responsibility to ensure that our government never oversteps its proper bounds or violates the rights of individuals. But the court must also recognise the limits on it and respect the choices made by the American people.”—Elena Kagan, Associate Justice, Supreme Court of the United States.

An independent and impartial judicial system is essential, in fact sine qua non, for the rule of law and democratic dispensation in any society. The latest World Justice Project Report listed Denmark, Norway and Finland at the top of its Rule of Law Index ranking 2021. Denmark is known for having the best judicial system in place. Its citizens have greater faith in it than even their elected parliament. They strongly believe in transparency. Therefore, the judges have to pass through a strict scrutiny process and all information about them is made public. Such scrutiny is conscpicuous by its absence it Pakistan.

A report by Denmark Domstole, titled, A close look at the courts of Denmark, shows that in Demark between 2018 to 2020 on an average 800,000 cases per year were decided. The independence of Norway’s judicial system is exemplary as well. They have opted for the best prison reforms, following Sweden’s example, and offer free legal assistance in civil suits. However, the supervisory Judicial Committee, an independent disciplinary board, monitors the judges’ professional conduct. Similarly, Finland follows strict laws to ensure transparency and accountability in its judicial system. Chapter 40 of the Finnish Criminal Code, which deals with offences in the office, is equally applicable to judges.

The United States, in a recent Judicial Conference, adopted various measures to enhance transparency. These included automating the release of judges’ financial disclosure reports, as well as an amended conflict screening policy that requires judges to sign a model conflict certification statement twice a year. Besides, the judicial conference requires consistency of approved model plan by each circuit council with the implementation of the mandatory conflict screening.

It may be noted that although judicial systems in these countries are independent and public acceptance level is greater than in underdeveloped country, they believe in ensuring transparency and adopt strict accountability mechanisms for their judges. No wonder, people in these countries trust their judicial system more than any other public office. Another important factor in maintaining judicial independence is the judges’ behaviuor and the quality of the decisions. In underdeveloped countries, many judges ignore this principle. They hardly believe in transparency in the appointment of judges. Decisions pronounced without legal substance invite public criticism.

The honourable judges of the superior courts should review their performance, conduct and the quality of justice being dispensed. Their appointments and removal should be made through open public hearings by a joint committee of the parliament.

Pakistan’s judiciary, known until recently for judicial activism, was ranked among bottom performing countries (130th out of 139th) on the Rule of Law Index ranking 2021 by the WJP Report. According to the Constitution of Islamic Republic of Pakistan, the judicial system operates independent of the Executive. However, past and recent events corroborate the perception that the establishment has a degree of influence over the Judiciary, which has been hand in glove in most extra-constitutional steps taken in the last 76 years. Constant interference in the Executive’s working by the Judiciary has paralysed the functional efficiency of government. At the same time, some of the judges have failed to perform their duties in a timely manner. According to a media report, in mid July of this year, 2.144 million cases were pending before the country’s courts.

Despite this established underperformance, the tax-free [see Clauses (55) and (56) of Part I of Second Schedule to the Income Tax Ordinance, 2001] benefits extended to the judges are perhaps uparralleled. Judges of the superior courts can have a chauffeur-driven car each with 600 litres of petrol; free medical treatment for the family; and rent-free residence maintained by the government. There are also provisions for electricity, gas and water. When they are travelling together, the judge’s wife also gets the air tickets. The judges are also given a transport grant equal to a month’s pay.

After retirement, a judge is entitled to a pension equal to 70 percent of the salary determined from time to time by the president, plus 5 percent of the said salary for each completed year of service, as long as it does not exceed 85 percent of the said salary. For their protection and safety, the government deploys a security guard at the retired judge’s residence round the clock. On retirement, a judge of the Supreme Court of Pakistan is entitled to the purchase of an official vehicle at depreciated value.

Such emoluments have not ensured efficient disposal of the cases or quality of decisions. Some of the judgments passed by the superior courts have failed to withstand the test at the level of international judicial forums where Pakistan had to face embarrassment as well as monetary loss. An example of this was the Supreme Court of Pakistan’s decision in the Reko Diq case wherein the country was slapped with a $6 billion penalty. In the Karadeniz Elektrik Uretim AS case, the International Centre for Settlement of Investment Disputes Tribunal disagreed with the Supreme Court’s findings and concluded that there was no specific corruption.

Although the constitution is very clear about separation of powers in determining functions and boundaries of each organ of the state to avoid any conflict, some of the judges have been using suo motu powers in an irresponsible way as noted by the incumbent chief justice. This interference in Executive’s affairs seems to have started after the Lawyers’ Movement for the restoration of superior judiciary.

Checks on use of such powers were weak and there was no certainity of accountability. Even the Supreme Judicial Council’s role raised questions about its credibility. The cases of Justice Shaukat Aziz Siddiqui and Justice Qazi Faez Isa are still fresh in the public memory. It is hoped that the recent 10-5 judgement of Supreme Court, upholding the vires of the Supreme Court (Practice and Procedure) Act, 2023, will end the bitter legacy of the past.

Each organ of the state must operate within its boundaries. Independence of the judiciary is important for the rule of law, subject to accountability. The honourable judges of the superior courts should review their performance, conduct and the quality of justice being dispensed. Their appointments and removal should be through open public hearings by a joint committee of the parliament. The parliament should also establish a supervisory board of retired judges of unimpechable repute to monitor the performance of each judge in terms of their conduct and judgments. True democracy and rule of law cannot be ensured without such reforms.

Dr Ikramul Haq, an advocate of the Supreme Court and writer, is adjunct faculty at Lahore University of Management Sciences as well as a member of the Advisory Board and a visiting senior fellow of the Pakistan Institute of Development Economics.

Abdul Rauf Shakoori is a corporate lawyer based in the USA and an expert in white-collar crimes and sanctions compliance. They have recently coauthored a book, Pakistan Tackling FATF: Challenges and Solutions with Huzaima Bukhari

Essential judicial reforms