Pakistan has an appalling rule of law problem. Patchwork reforms in the judiciary will yield only minimal results. What is needed is a wholesale remaking of the socioeconomic structures that define the relationship between the state and its citizens.
Almost on a daily basis, we hear from the higher judiciary that all the affairs of the state should be conducted according to the Constitution of Islamic Republic of Pakistan. Undoubtedly, there cannot be two opinions in this regard, but it has to be acknowledged that the decaying justice system is in dire need of fundamental institutional reforms, so as to end the extreme delays in giving out decisions in millions of pending cases in the subordinate and higher courts all over the country.
In 2009, during the movement for the restoration of the judiciary, there was hope that fundamental institutional reforms would be seen in the judiciary after restitution of the judges that were unconstitutionally removed, but unfortunately, the situation since then has deteriorated further. There are still huge numbers of cases pending in the judicial system across the country and the entire system seems to be collapsing, or in constant state of decline that is all pervasive.
Few years ago, a lack of quality was mentioned only in association with the lower courts, but now the same can be said for the high courts. Young lawyers appearing in cases before the high courts are not even aware of requisite procedures, the art of pleading, and lack skills in advancing arguments in a systematic or convincing way.
It is also a matter of great regret that the quality of court decisions is also falling rapidly. One the one hand, courts are not properly assisted, and on the other, everyone is getting high court licences! Why the Pakistan Bar Council is not performing its legal duty of ensuring quality through rigorous exams and making them necessary for the renewal of licenses after every three or four years. They must stop the practice of giving life-time licenses to lawyers. It is time to ponder both – for bar and bench.
The Constitution gives all citizens the right to access justice. This right should be recognized as seeking resolution of disputes promptly through impartial courts and tribunals. Justice can only be done if the cases of litigants are decided within a stipulated time frame. Delay in justice is the denial of justice. For this process, the judiciary should not only be independent, but also efficient and competent so that justice can seen to have been done.
The process of reforming the justice system cannot be separated from socioeconomic issues. This requires the reconstruction of state institutions, which are vestiges of the colonial era. These rotten institutions cannot deliver any more.
The dispensation of justice in any society should be given the highest priority. Our judicial system faces many challenges in carrying out its prime function of safeguarding fundamental rights and settling disputes between citizens and State. Millions of cases are pending, and the number is increasing with each passing day. Hearings cost a lot of money. Competent lawyers have always been expensive. Due to delay in the courts, many social and economic problems arise. No serious attempt has ever been made to rectify these maladies.
By now, it is well-established that even by increasing the numbers of judges and paying them well, the problems are not being solved, because the core values of socioeconomic justice have become very blurred in our society. The process of reforming the justice system cannot be separated from socioeconomic issues. This requires the reconstruction of state institutions, which are vestiges of the colonial era. These rotten institutions cannot deliver any more. Even looking at the changes taking place in the world under the fourth industrial revolution, we have failed to change the structures of our out-moded and dysfunctional state institutions.
There are many suggestions for improving the judiciary and judicial system. The biggest problem the system faces is the lack of facilities and trained personnel. It lacks modern infrastructure, due to which cases get delayed. Experts have analyzed the situation and suggested solutions, but the lack of a serious effort to implement it is the real problem. In any state, the judiciary protects the rights of the people by enforcing the rule of law.
The rule of law is based on three principles. The first principle is that whether it is government officials or private institutions, the law should be supreme and free from the influence of any political or economic pressure. The second principle is the establishment and application of positive rules that are a sign of high standards. The third principle is that the relationship between the state and the common man should be regulated by law.
In Pakistan, the enforcement of rule of law, in its true sense, is still a far cry. It is very difficult for people to access the expensive and ineffective, rather muzzled, justice system. It is high time that we raise our voices for meaningful legal reforms that are vital for dispensation of justice, which is the main pillar of democracy.
Only recently, the Supreme Court, headed by former Chief Justice Umar Ata Bandial, had refused to hear a case filed in the public interest. The petitioner pleaded that since Pakistan was in debt of several trillion rupees and because of this, basic amenities of life like health and education were not available to millions of people, therefore the President’s House, Prime Minister’s House, Governors’ Houses, etc should be abandoned. The heavy expenditure and lavish lifestyle of public officials and public representatives and the privileges they receive should be banned.
It was argued that these “constitute not only violations against Islamic injunctions, but also blatantly violate Articles 2A, 3 4, 9, 14, 25 of the Constitution.” In its six-page order, the Supreme Court recognized that although public resources “are held in trust by public officials,” yet the matter “is one of government policy and political affairs,” thus did not fall within its purview under Article 184(3) of the Constitution.
In this exploitative system, the profiteers and vested interests will never allow the common people to benefit. They want the status quo to persist. In fact, the root cause of all the problems is the existing power structure, which is fundamentally anti-people.
Regardless of the order of the Supreme Court, there is a general perception that our legal system protects the interests of the rich and powerful. It is also heard frequently that “justice is purchasable.” Hence, slogans and clichés like the “independence of the judiciary” and “justice for all” in our society had proved to be like sifting sand in the desert.
The much-hyped National Judicial Policy of 2009 also failed to improve the quality of and speed of dispensation of justice. Rather, after the announcement of this policy, pending cases in the subordinate judiciary have increased further. It is an undeniable fact that justice is not available to the weak and needy members of the society.
These are the people who are in urgent need of justice as they fall prey to coercion by government officials and frauds by private parties. Often government institutions and private companies combine to loot the public and the latter has no clue. It is also a fact that competent lawyers’ fees are exorbitant.
Common citizens, especially the salaried persons, have to sell their assets or borrow funds to hire expensive lawyers for justice. Despite this, one has to wait for years for judgments. These matters are not hidden from the higher judiciary, but it seems that no one is serious about improving the lot of the hapless people in Pakistan.
In this exploitative system, the profiteers and vested interests will never allow the common people to benefit. They want the status quo to persist. In fact, the root cause of all the problems is the existing power structure, which is fundamentally anti-people. This structure includes miltro-judicial-civil complex and the legislature.
The police, judiciary and legislature are all ultimately tools in the hands of oppressive and predatory elites.
Unfortunately, no political party has an agenda to change this structure for the benefit of the people. On the other hand, the elite comprising the civil military bureaucracy, politicians, businessmen and landlords are united under the banner of their mutual interests. They have to seek votes from the people under different names and pretexts, and then force through oppressive taxes to fund their luxuries.
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In 76 years, we have failed to democratize our state structure, promote democratic values and culture - on the basis of respect of others’ views and ensuring justice for all. Because the ruling elites have become accustomed to securing luxuries through the hard-earned income of the people, they will not surrender their monopoly over power that on paper belongs to the masses. The police, judiciary and legislature are all ultimately tools in the hands of oppressive and predatory elites.
The transfer of power and authority to the people and the protection of their economic interest is true democracy, but in our case, it would mean the death of the ruling classes — the militro-judicial-civil complex. Therefore, there is no room for public welfare in the prevalent political system. This is the reason why when it comes to public interest and fundamental rights, all elites stand united to oppose reform and protect their own vested interests.
Accountability is essential for democracy and without it, there is no concept of people’s rule. The accountability process should start from judges, because only if they have spotless character, will the accountability of other institutions will be possible. Only a person of good character can withstand internal and external pressures.
It is the fundamental right of every citizen to know about the assets of the government and public office holders as well as judges of higher judiciary. Even the courts cannot obstruct the way of this right given by the Constitution.
Accountability should be such that justice is not only done but also seen to be done, but this cannot be done merely via lip service. It is important for the strengthening of the state that all institutions are held accountable. Pressure is needed for this purpose. Pressure does not mean pressure at gunpoint, but social pressure groups, such as civil society and the media, which itself needs to go through a process of accountability, to come forward and inform the public about their fundamental right under Article 19A of the Constitution.
Public access to information is one of the most essential ingredients of the accountability process. It is the fundamental right of every citizen to know about the assets of the government and public office holders as well as judges of higher judiciary. Even the courts cannot obstruct the way of this right given by the Constitution. If this happens, the people can learn a lot about their rulers and their assets and fortunes. For the success of democracy, it is necessary to change the whole structure instead of making superficial changes and patchwork reforms here and there.
In a democracy, the people are the source of power and they should have to be, so that the elected ones should not consider themselves as rulers, but the trustees of given authority. Since the dispensation of justice is a basic requirement of accountability, the laws that create unnecessary barriers between the state and citizens must be withdrawn. The most shameful thing at this time is that the government institutions drag the citizens to the courts while violating their rights, but are not ready to present themselves for accountability before the people.
By Dr. Ikram Ul Haq ~ The writer is a prominent scholar of Law.
This article was Published on 13th April 2024 in THE FRIDAY TIMES https://thefridaytimes.com/13-Apr-2024/insensitive-state-muzzled-justice
