In 2021,Pakistan ranked 130 out of 139 countries in the World Justice Project’s Rule of Law Index Report. A successful constitutional democracy depends on public confidence in the justice system
In February 2022, a new chief justice of Pakistan will assume office. The institution he will head faces serious challenges. Aspersions have been cast alleging misconduct by a former occupant of that office. The moral authority of the institution is in question. Without the safety valve of a credible dispute resolution forum, society becomes consumed with unresolved conflicts. It is impossible to move on. More than four years after a unanimous decision to disqualify him by five Supreme Court judges, a former prime minister is still complaining, “Why was I removed?”
A successful constitutional democracy depends on public confidence in the justice system. An effective judicial branch should be credible and efficient. Credibility comes with integrity, independence and decisions being made in accordance with law. Efficiency requires good administration and a level of co-operation between stakeholders.
Our justice system continues to fare poorly on both yardsticks. In the Supreme Court, the pendency of cases is over fifty thousand. In the courts generally, that number rises to over two million. Our prime minister sued Khawaja Asif, a political opponent, for defamation in November 2012. In December 2021, he gave evidence in support of his case by video link. Nine years have passed. The plaintiff’s evidence in a high profile civil defamation suit is not complete.
The World Justice Project is an independent, not-for-profit entity which publishes an annual rule of law index. Its financial statements, including details of donors, are publicly available on its website. The bulk of its funding is from non-governmental entities and foundations, like the Bill and Melinda Gates Foundation. The Rule of Law Index is compiled based on data gathered from individuals and entities within the jurisdiction being reviewed. They are asked to assess levels of corruption and provide feedback on other aspects of the Rule of Law, like protection of fundamental rights. In 2021, Pakistan ranked 130 out of 139 countries that are currently being reviewed.
Successive governments have attempted to tackle the issue of delay. Legislation has been promulgated requiring decisions within prescribed time frames. Judges are encouraged to follow the principle of policy enshrined in the Constitution of “expeditious justice”. Yet little progress is made. In 2021, the pandemic continued to impact disposal.
In the Supreme Court, considerable judicial time is spent on high-profile cases selected by the chief justice for hearing. There is no transparency in the listing process. A litigant will never know why a case has not been scheduled for hearing. This leads to a sense of injustice when a case filed much later or taken up suo motu is heard and decided quickly. Judges often remind counsel that all cases are equally important. The impression of the aggrieved litigant waiting for a hearing is that some are more important than others.
The lack of transparency extends to selection of judges in the superior judiciary and to appointment of judges to the Supreme Court. The judicial appointing authorities have absolute discretion in such appointments. The only exception is the office of chief justice where the senior most Judge must be appointed.
The most dramatic exchanges of the year in the Supreme Court took place during the hearing of the review petitions of Qazi Faez Isa and Sarina Isa.
Objecting to this unfettered discretion, the Bars and a majority of the Judicial Commission united this year to block the appointment of Pakistan’s first female judge to the Supreme Court. They argued that the seniority principle should also apply to such appointments until adequate objective criteria have been developed. Several appointments to the Supreme Court have been made which are not based on seniority. A woman was denied where similarly placed men before her had been allowed. You can make of that what you will.
The most dramatic exchanges of the year in the Supreme Court took place during the hearing of the review petitions of Qazi Faez Isa and Sarina Isa. The government was insistent on proceeding against this Qazi for misconduct. It disingenuously feigned neutrality and maintained that all it wanted was a decision by the Supreme Judicial Council – the judicial body authorised to remove judges - on the merits. Everyone knew the judge was being targetted for the Faizabad Dharna judgment where he (together with another Judge) had held that all agencies of the government, including the ISI, must operate in accordance with law. The Supreme Court through a majority decision had originally authorised further action as a consequence of which the matter was left pending before the Supreme Judicial Council. A visibly split Supreme Court changed its mind and allowed the review by a majority of six to four. The Qazi survived and the pending proceedings seeking his removal were quashed. Sometimes, destiny is changed by one vote.
Towards the end of this year, the Supreme Court ordered the demolition of an unlawfully constructed residential tower in Karachi. The court has directed the residents to be compensated, but it is not clear how this will be done. The aggrieved residents of the tower point to other instances where the same court has legalised unlawful constructions. In one of those cases, the residents were prominent individuals – including former judges and politicians. There is nothing that leads to a greater sense of injustice than double standards. Consistency and reasoned orders are the hallmarks of a fair judicial system.
Perhaps the abiding image of the year will be an indignant Chief Justice of Pakistan waving his fists in the air at the Asma Jahangir Conference and insisting in front of a sceptical crowd, “we are independent, there is no pressure on us from anyone. No one dare tell us how to decide cases”. Some of the judges in the audience nodded wisely. The crowd was silent. The next day the mighty yet invisible state was so fearful of the convicted ex-prime minister and de facto leader of the opposition, it cut the internet connection at the conference to stop his broadcast. Dissenting voices continue to be silenced. Fundamental rights violated. When our judges start to fearlessly enforce these rights, which they have sworn an oath to uphold, they won’t need to wave their fists and remind us of their independence.
The writer is an advocate of the Supreme Court. firstname.lastname@example.org