Rebirth of Judiciary

By: Qurrat-Ul-Ain Rehman

Time to make it delivery-oriented

The strength of a state is linked to the success of its legislative, judicial and executive authorities. The function of the judiciary is to disseminate justice and ensure equality of all before law by implementing laws and rules and regulations in their true spirit. Since the inception of Pakistan, the country’s Political leadership, like that of all civilized societies, have been interested in and committed to an independent judiciary and, for that purpose, courts and prosecution services were established throughout the country. They also facilitated courts so that they work in accordance with the objectives and mission of this sacred institution. 

The roots of the current judicial system of Pakistan can be traced back to the medieval period and even before that. It has passed through several epochs, covering the Hindu era, Muslim period including the Mughal Empire, British colonial period and post-independence era. Notwithstanding the successive changes i.e. one government replaced by another, which naturally resulted in the socio-economic and political transformation of the Pakistani society, the judicial system generally maintained a steady growth and gradual advance towards consolidation and improvement, without indeed, having to undergo any major disruption or breakdown.

In Pakistan, the Supreme Court of Pakistan constitutionally is the highest body of the justice system and is responsible for regulating the legal system of the country. It is the final authority to which appeals can be filed and its judgement is considered constitutionally and legally absolute and final. No appeal can be filed against its decision and its verdict cannot be challenged. Then, there are provincial high courts and the lower courts which include sessions courts, civil courts, magistrates, and others which work to dispense justice at the lower level.

Although courts kept working and dispensing justice without coming into the limelight, in recent years, they have become focus of the attention of public as well as the media. The concepts of judicial activism and judicial review, which mean that the judiciary should have the power to determine whether a law enacted by the legislative or an act done by the executive was constitutional or not, have again come into play in Pakistan. Nowadays, courts have become more proactive in their functioning and have given a number of landmark verdicts. Although there have been many instances in our judicial history when courts gave in to the executive pressure — overturning of Maulvi Tamizuddin’s appeal, Dosso’s case and the Nusrat Bhutto case are important examples in this regard — yet there are instances when such pressures were simply brushed aside. In the Federation of Pakistan vs. Muhammad Saifullah Khan Case (PLD 1989 SC 166), for instance, despite executive’s strong pressure, the Supreme Court declared the dissolution of Junejo government null and void – though it did not revoke the orders as the entire nation was already geared up for the elections.

Later, by a very active interpretation of Article 17 of the Constitution, the Nawaz Sharif government was restored in 1993. Had the SC interpreted the article textually, the case should have been heard by a High Court, at first instance.

However, it was in 1996 that two landmark cases changed Pakistan’s judicial landscape decisively. First, the Supreme Court, by repeated instructions to the effect, forced the government to promulgate the Legal Reforms Ordinance, 1996, which separated the judiciary from the executive at the lower level. This ordinance rectified judicial system in Pakistan.

Then, in the path-breaking “Judges Case” of March 29, 1996, the SC declared that the Chief Justice of Pakistan (CJP) would have primacy in the appointment of judges to the superior judiciary. The “consultation” with him by the executive in this regard would have to be “purposive, meaningful and consensual.” This case has effectively put an end to the executive practice of appointment of judges to the higher judiciary by overriding the advice of the CJP.

Justice Sajjad Ali Shah thus brought about a “one-man judicial revolution” in the country. The SC judgement has once and for all rejected the concept of summary trials, and dealt a blow to the executive-sponsored moves to create a parallel judicial system.

In June 2005, Iftikhar Muhamamd Chaudhary became the Chief Justice of Pakistan. He was suspended and sacked in 2007 owing to the allegations of corruption levelled by the then president of Pakistan, Pervez Musharaf. Justice Chaudhary’s removal gave birth to a historic movement of the civil society, including the lawyers, which culminated in his restoration as the CJP. From this episode, the judiciary became strong and therefrom we have seen a rebirth of judiciary.

Now the justice system in Pakistan has become so strong that the Supreme Court disqualified Prime Minister Nawaz Sharif from holding public office in its landmark decision in the Panama Papers case. Justice Ejaz Afzal Khan, who had headed the apex court’s implementation bench following its April 20 order on the Panama Papers case, announced that the larger bench had unanimously deemed PM Sharif unfit for holding office and also ordered an accountability court to open references against him and his family, and other respondents. Shortly after the order, the PM House issued a notification saying that Nawaz Sharif, despite having “strong reservations” on the SC’s verdict, has stepped down. The judgement brought Nawaz Sharif’s third term in power to an unceremonious end, roughly one year before the scheduled general elections.

Later, on April 26, 2018, a special three-member bench of the Islamabad High Court disqualified Khawaja Asif as a member of the parliament under Article 62(1)(f) of the Constitution, for failing to disclose his employment in a UAE business as a profession and the monthly salary he had received. The decision also refers to the Panama Papers case, saying: “The Supreme Court did not disqualify the former Prime Minister [Nawaz Sharif] simply for having an ‘Iqama’ but for his disqualification was due to non-disclosure of property, the celebration of “Iqama” cannot be the basis for attracting Article 62(1)(f)”. Although this decision was overturned by the Supreme Court, it shows that Pakistan has entered into a new era of justice system.

The judiciary in Pakistan has undergone many changes over the years and is still being developed to administer justice effectively, in line with the government’s general policy of speedy justice.

Among the developments observed by the judiciary in recent years, most notable is the diversity of cases. Specialized courts and special committees, such as JIT, have been established to deal with certain types of cases with unique characteristics. These developments go beyond the work of the courts and include the prosecution and its services, especially online services. The developments include the work of lawyers and legal consultants. There has been a growing interest in regulating the legal profession in what seems to be a serious step towards the advancement of the profession given the importance of this vital sector and its key role in the justice system. In addition, the introduction of electronic services has facilitated many aspects of the judicial process, as courts can provide justice more quickly.

Judiciary, perhaps, is the most important factor in the success of a country that aspires to attract foreign investment and forge successful international relations. A fair and modern judicial system is needed to win the trust of the international community. Therefore, the responsibility for the development of the judiciary does not fall on any particular entity or department in Pakistan as it requires collective action by various entities to achieve the desired objective.

To overcome the challenges of the next phase and to make the judicial system stronger and delivery-oriented, all-out efforts are required especially by the Ministry of Law and Justice. The Law Ministry must propose and implement amendments for the improvement of civil and criminal procedure codes so as to serve the purpose of dissemination of justice and public good, taking into account the best practices that are not in conflict with the public order of the Islamic Republic of Pakistan and are consistent with rules of justice and equity. It should operate a more convenient online service where online services are used, not only to register cases and file complaints, but also to create an online forum to listen to witnesses and experts from outside the Pakistan. It is very well known to everyone now that our Judiciary is a very strong pillar of the state of Pakistan and will continue to grow because it is well-known maxim of law “where there’s a will, there’s a way”.