Democracy is based on liberal constitutionalism, requiring a well-established constitutional and legal system to recognize civil and political rights, including equality of all citizens regardless of their religion, caste, ethnic origin, language, and region. With respect to the rights of citizens, Part II of the Constitution of Pakistan consists of two chapters: Chapter 1 contains the Fundamental Rights protected by the Constitution, while Chapter 2 contains the Principles of Policy. The latter encompasses various socio-economic rights.
Among other rights, Article 37 (d) of the Constitution obliges the state to ensure “inexpensive and expeditious justice”. Out of all the three main organs of the State, defined by the 1973 Constitution, an efficient judiciary is critical to democracy, governance, security, economic growth, and fairness.
Subject to abuse and exploitation go back to medieval times and even earlier. The justice system in Pakistan is based on UK law, where the Supreme Court is supreme, followed by the High Court and then by the courts of a session.
A biased rule of law
Unfortunately, today, there is a strong view that the justice system does not work too well. The general perception is that even when it works in some cases, it benefits citizens on the basis of their class, influence, and wealth status. The country has been facing corruption and nepotism in all of its institutions, and the judiciary is no exception. According to the World Justice Project’s Rule of Law Index 2020, Pakistan secured a 0.39 score and was placed on 120th position in the world ranking, whereas in 2019 Pakistan’s ranking was 117. The alarming part of this report of WJP is that the country is only ahead of Afghanistan in South Asia, strongly indicating that there is something that needs serious attention from the Government.
Justice in Pakistan is considered slow, expensive, subject to abuse and exploitation, complex, and often unintelligible for the majority of litigants, even coercive. The problems of the justice system are exacerbated by weak regulation of the legal profession. There are many reasons for this poor performance, but the most important one is the long pendency of cases. As per the recent statistics carried out in July 2021, over 51,800 cases are pending before the Supreme Court of Pakistan.
What is alarming is the fact that there is hardly any instance in which a presiding officer of a court has been held to account for the unwarranted delay in the disposal of criminal cases. And the question arises as to why this is so?
How can we establish an effective justice system?
An institution that deals with the cases of millions of people every day must have efficient built-in mechanisms to ensure that there are no delays, that cases are dealt with on merit and that any delinquency is reported and rectified, and that those who commit deliberate acts or unintentional misreading of the law are brought to the book.
Secondly, it is pertinent to mention here how an effective judicial system can only be put in place if efforts are made to produce highly skilled adjudicators at the lower level of the judiciary who are recruited in a transparent manner, by a professional council, not sitting judges, and extensively trained at a center of excellence or a reputable university. Hence, emphasis must be placed on the quality of justice. Once the quality of justice and the principles of impartiality and fairness are established, the rest would follow automatically.
Thirdly, appropriate legislation by the parliament is required. Meaning that a law should be enacted which would oblige judges not to adjourn the case for more than 4 days. This point is totally dependent on the prompt delivery of facts and figures by the police. For this, the gap between the police and lawyers should be reduced and coordination and cooperation between them should be nurtured.
The aforementioned reforms, without a doubt, will play an effective role in shaping the way our judiciary currently functions and put the nation on the path envisioned by Quaid e Azam Muhammad Ali Jinnah. The working hours of the court must be fully utilized. Judges should be punctual, and lawyers should not ask for adjournments unless absolutely necessary. And the granting of an adjournment must be strictly guided by the provisions of the Code of Civil Procedure. Unless we own judicial reforms and institutionalize them in a way that best reflects the interests of the majority of the citizens of this country, they will not succeed.
Hence, it is extremely important for Pakistan to have a well-established justice system on the pillars of a rapid and transparent trial system in order to provide fair justice to every citizen of this country. The judicial system is a guarantee for the development of a nation because it builds confidence among the masses. Therefore, it is imperative that the current government takes the lead in cooling down the political climate, by focusing its efforts on pushing for judicial reforms through some semblance of political consensus and stakeholder reconciliation.
The writer is an advocate of the High Courts of Pakistan and an Executive Member of the International Bar Association. She has graduated with an LLB (Hons) degree from the University of London and a Master of Laws (LL.M) degree with distinction in Corporate Governance from the Queen Mary University of London. The views expressed in the article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.