Without improving our judicial system, we cannot gain the status of a respected state
he Supreme Court on Thursday restored the National Assembly after it declared the president’s decision to dissolve the assembly and NA Deputy Speaker Qasim Suri’s ruling against the constitution. The five-member bench headed by Chief Justice of Pakistan Umar Ata Bandial read out the short order and restored the National Assembly.
Legal experts had termed the speaker’s action unconstitutional. The combined opposition had called it subversion in terms of Article 6 of the constitution and accused the prime minister, the law minister and the deputy speaker of treason.
Historically, the role of Supreme Court has been questioned and the conduct of judges doubted in Pakistan due to their decisions that were seen as compromised. Recently, the senior-most puisne judge of the Supreme Court, Justice Qazi Faez Isa, in a letter addressed to the chief justice, raised concerns related to the formation of the benches and a direction to fix a reference by the president that was yet to be filed.
He also questioned the role of the apex court’s registrar and his affiliation with administrative services. However, the chief justice defended his position holding that these concerns were not well founded as assigning the cases and forming the benches was an administrative function.
These concerns aside, the Chief Justice of Pakistan as well as other judges need to demonstrate that a strong and effective judicial system is the backbone of the country. The judicial system of Pakistan must be robust, transparent, independent and accountable. In terms of the constitutional mandate, the Supreme Court can protect our most important fundamental rights, control crime, build investor confidence, ensure economic growth and define supremacy and rule of law including the roles of all subordinate courts. There should be no room to suggest that any of the judges consider themselves beyond accountability or are not transparent in their conduct.
Before the lawyers’ movement that is considered a turning point in our judicial history, examples set by the superior judiciary were not encouraging. The people of Pakistan clearly support an independent judiciary. For some years, their trust in judiciary has been questioned.
Several leaders of bar councils and bar associations have also raised such concerns. Some have openly criticised some of the judges related to matters directly linked to the apex court, such as the appointment of junior judges to the Supreme Court and ignoring the seniority, constitution of benches and involvement of senior judges in administrative matters. A deviation by the Supreme Court from its mandate can casue unrest in the country. Such an impression can also undermined the nation’s image in the global community and impact its social, political and economic standing. When judicial activism is seen as superior courts deviating from their assigned roles on account of political or personal preference, their judgments become precedents for lower courts.
Pakistan is one of the countries where people have paid a huge price for the independence of judiciary. The historic lawyers’ movement that was supported by the general public, civil society and the media succeeded in undoing the actions of a dictator.
Unfortunately, political parties have not taken any serious steps to reform the situation even after Mohtarma Benazir Bhutto and Mian Muhammad Nawaz Sharif signed the Charter of Democracy, agreeing to bring about judicial reforms. Though they had agreed on various points, including the appointment of judges these were not incorporated in the 18th Amendment to the constitution. Also, no independent mechanism was provided for maintaining transparency and accountability in the judiciary.
Following the deputy speaker’s ruling on April 3, the country had faced a grim crisis. There was no functional government and there was a serious threat of unrest.
On the economic front, too, the country is facing daunting challenges. The International Monetary Fund (IMF) has suspended the ongoing programme, indicating a resolve for helping in achieving stability once a new government is installed.
The rupee shed further value last week. As time for the preparation of new budget approached it was not clear who could assume responsibility to address the lenders’ concerns related to the budget deficit and balance of payments.
All these issues were linked to the matter before the Supreme Court. Whosoever forms the next government should revisit all ambiguous provisions in the constitution and address these to avoid a future crisis. The new government should also address the issues of appointment, removal, formation of the superior court benches, and the power of suo motu hearing available with the chief justice, considering international best practices.
It is time for Pakistan to raise its judicial standards. Our judicial system should uphold basic human rights. It should not allow governments to victimise political opponents and silence dissenting voices by imprisoning people in utter violation of their fundamental right to a fair trial.
Beyond domestic harm, these injustices affect Pakistan’s standing in the world. A glance at the global index for rule of law and the World Justice Project (WJP) report shows that Pakistan is listed among the worst-performing countries.
The honourable judges need to review their performance, conduct and the quality of justice they are providing us. Can we aspire to rub shoulders with highly respected judiciaries like those of Denmark, Norway and Finland on the WJP index or will we remain part of the underperforming club and maintain our current position?
Pakistan is one of the countries where the people have paid a huge price for the independence of judiciary. The historic lawyers’ movement that was supported by the general public, civil society and the media succeeded in undoing the actions of a dictator. After restoration of the judiciary, it was hoped that their concerns for justice would be addressed in the light of laws and the constitution. These expectations had emerged in the country in defiance of the courts’ record of justifying the abrogation of the constitution, execution of political opponents by dictators and facilitation in strengthening their rule.
Abdul Rauf Shakoori is a corporate lawyer based in the USA
Huzaima Bukhari is an advocate of High Court and adjunct faculty at Lahore University of Management Sciences (LUMS)