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Monday, November 27, 2023

Can the Judiciary turn the table now?

An independent judiciary is one of the crucial pillars of any genuine liberal democracy. Here in Pakistan, a new scandal has ignited a firestorm of controversy precisely because it is reminding us that our judicial branch can make no claim to independence. The top court has come to the rescue of an Executive who has miserably failed at the provincial and federal levels.

A well-known saying goes as “In The Court Of judiciary, both the parties know the truth, its the judge who is on trial”. Last month I was with a lawyer in an office when he said that he parked his car at the “No Parking” area and was alarmed that his car would be lifted by Traffic Police. He confidently replied, “in that case, the police would be sorry” since it’s a lawyer’s car.

And the other day, how Commissioner Karachi was reprimanded by the Supreme Court of Pakistan over no action on the demolition order of Nasla Tower. The two instances present two characters who are both supposed to get the law implemented but both have shown a casual attitude towards the law. The answer can be found in the quantum of undecided cases i.e. around 2 million.

Read more: Police Reforms Movement: Can it strengthen the justice system?

The silver lining 

The activism has shown by the top court at least solves the particular problem whether it belongs to the public interest or not. However, the decisions like the demolition of Ala-Din Park that was leased for 25 years only and Nasla Tower whose even lease is in question symbolize the determination of leading judges especially the Chief Justice, who has at his credit retrieved the original Empress Market of Saddar, Karachi from 70 years old encroachment. Delayed decisions make the criminals bold and the executives, casual. Hence working of judiciary and executives go hand in hand.

The top court has come to the rescue of an Executive who has miserably failed at the provincial and federal levels. Interestingly, the vice versa happens when the courts disable the executive function when a stay is granted apparently unjustifiably as in the case of the Sugar industry against the fine of Rs. 40 billion by Competition Commission of Pakistan and Rs. 50 billion of fine/taxes by FBR. A shield to those barons who directly affect the people.

It is my firm belief that the courts can become food inspectors, drug inspectors and police inspectors to the pleasant happiness of the general public if timely decisions are taken by using the judge’s fair use of judicial discretion against the lies of contesting lawyers.

Read more: Rethinking the criminal justice system in Pakistan

How the criminals are emboldened? 

I have recently studied a case that clearly shows how avoiding judicial discretion for a fair decision, facilitated the illegal occupants consolidated their illegal occupation debarring the public at large who have paid installments for 38 years. The MPCHS (Musalmanan-e-Punjab Housing Society) Scheme 33, Karachi, was taken over in the year 2008 by govt on the plea of maladministration and then the rampant sale of duplicate files never stopped. When the case was moved in court of law, it was dismissed on the basis of Locus Standi (complainant party did not have any stake).

Then review appeal was also dismissed on the same plea. The next appellate court also dismissed the case on the same ground. These three dismissals were based on technical grounds rather than the merit of the case, took 3-4 years giving ample time for selling fake files through several hands. A whistleblower can be anyone. The hopeless affectees made an association and sued again in the High Court of Sindh in 2017 video CP 8020 of 2017 which is still pending.

Read more: Noor Mukadam case: A need to reform Pakistan’s justice system

The worst part happened when the defendants moved Sindh high court vide CP 4785 0f 2017 requesting for refraining order which was granted against Sindh govt Anti-corruption department and Coordination departments who have both found the occupants guilty. In all, it’s the 13th year now since the 25 acres of society was snatched away and currently 90% resided by new occupants. Where to go.

Employing judicial discretion 

As per available definitions, Judicial discretion refers to a judge’s power to make a decision based on his individualized evaluation, guided by the principles of law. “By employing the discretion of a judge to impose the appropriate sentence in the specific case before them, it allows the sentence to better achieve all of the goals of sentencing, including deterrence, rehabilitation, and denunciation.”

Read more: Justice system’s response to crimes against women

If timely decisions are made, there will be no need for guards for Judge’s safety, for witnesses’ safety as the criminals are on the run seeing no refuge. Since the law has interpretations that vary among defense and prosecution lawyers, only the Judges can overtake their fear of discretion that has so far been sparing the criminals. The mafias will resist but perseverance will win Insha Allah.


Mushtaq Jumma is an Ex-Airliner and Business Consultant. He can be reached at mushtaqjumma@hotmail.com. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.