Colonial Judiciary, Vernacular Justice
Dr. Ikramul Haq
History of existing laws and judicial structure in Pakistan dates back to the British colonial era—since independence nothing substantial has changed in the Anglo Saxon system except patchwork of so-called Islamic laws and establishment of Federal Shariat Court by General Ziaul Haq. Two conflicting legal systems have given undue advantage to the police alone for self-aggrandisement rather than serving any useful purpose for dispensation of justice. The maxims ‘justice delayed is justice denied’ and ‘justice hurried, justice buried’ most aptly describe the essence and existing state of affairs of our outdated judicial system, which desperately needs all-out reforms at all levels.
In early columns [Malice Towards None & All: Challenges Before The New CJP, Friday Times, September 16, 2023 and Malice Towards None & All: All Pervasive Judicial Reforms—I & II, September 30, 2023 and October 7, 2023], analysis of outmoded and obsolete colonial judicial system and agenda for its complete revamping were discussed in detail. As expected, those who matter in the land paid no heed and since then pendency has increased and debates are still going on how to liquidate the monstrous backlog of about 3 million cases at national level.
The Law and Justice Commission of Pakistan (L&J Commission), in its bi-annual report of judicial statistics for the period from July to December 2023, revealed that the overall pendency of cases increased by 3.9%, reaching the staggering number of 2,260,386 during the second half of the year 2023. It shows that 82% of the pending cases (1.86 million) are at the district judiciary level and the remaining 18% (0.39 million cases) at the upper tier, including the Supreme Court, Federal Shariat Court, and all five high courts of the country.
As usual, committees and task forces have been constituted, which means doing nothing but posing to be proactive! Strange, but a bitter reality, that no homework was done by any party before contesting the general elections held on February 8, 2024 how to bring fundamental reforms in administrative and judicial outdated, outmoded structures that have failed to deliver.
On independence, we inherited a competent judiciary. Mian Abdul Rashid, the first Chief Justice of Pakistan decided not to attend government gatherings and public functions. His successor, Justice Muhammad Munir, for his judgements in Maulvi Tamizuddin case [PLD 1955 Federal Court 240] and few others did become controversial, though his critics never questioned his legal acumen and intergrity. How can one forget some of his great successors like Justice Shahabuddin and Justice A.R. Cornelius, who set very high standards of judicial propriety in our tumultuous years of existence.
In post-independence years, the challenge faced by higher judiciary was sanctifying martial laws after perpetual failure of political leadership to resist the same with the people’s power. Judiciary was approached repeatedly to determine the validity or otherwise of capturing State power through the barrel of gun. In The State v Dosso [PLD 1958 SC 533], Chief Justice Munir called it a “successful revolution”, but Justice Hamoodur Rehman in Asma Jillani v Government of Punjab [PLD 1972 SC 139] dubbed it as “usurpation”.
In Begum Nusrat Bhutto v Chief of Army Staff [PLD 1977 SC 657] came yet another endorsement of the doctrine of necessity wherein “intervention” was declared lawful “in the best and larger interest of the nation”. General Pervez Musharraf not only got three years but also the right to amend the Constitution of Islamic Republic of Pakistan [“the Constitution”]. Then came a revolt against him and in the wake of “defiance”, the entire judicial landscape changed. Symbolically, a new ‘judicial Pakistan’ emerged on March 16, 2009. Since then the top judicial organ is a power to be reckoned with—though little has been done by it to reform judicial system.
The famous quote by French critic and journalist, Jean-Baptiste Alphonse Karr (1808-1890) that “the more things change, the more they remain the same” aptly describes our colonial judiciary that believes in dispensing vernacular justice—qanoon sadda chale ga [law is what we determine].
The existence of colonial laws and judicial structure that is not dispensing justice to the less-privileged is the real dilemma faced by Pakistan since its birth. No doubt that the higher judiciary should play its vital role of curtailment of arbitrary exercise of powers by any organ of the State. Its main role is protection of fundamental rights of citizens under all circumstances.
It is the first and foremost duty of higher courts to maintain the supremacy of Constitution, which is a sanctimonious document representing and expressing the supreme will of the people. But it is equally important that the Supreme Court passes an order for comprehensive reforms to remove snags in the dispensation of justice. The incumbent Chief Justice of Pakistan, Justice Qazi Faez Isa, has repeatedly said that the judicial system was marred with inefficiency and inordinate delays. However, remedial actions are still not taken.
The daunting challenge for all of us is establishing a true democratic polity based on constitutional supremacy, rule of law and equity. The long military rules and in between experiments of “controlled democracy” and “hybrid regimes” denied the people of their sovereign right of self-governance. The dictatorial, anti-people mindset prevails in all State organs. The post-election (2024) scenario testifies to it.
The so-called reforms like Article 175A of the Constitution as amended through 19th Constitutional Amendment and National Judicial Policy 2009 containing various short-term and long-term measures for early disposal of cases have proved completely unsuccessful.
The real need is of comprehensive structural reforms—unless causes for litigation in society are not curtailed through good governance and providing socio-economic justice, the judicial system will remain choked. More and more judges will be required to cope with the ever-increasing number of cases at all levels. Their disposal rate will always be outpaced by new cases filed. The recent Judicial Statistics 2nd Bi-Annual Report [July to December 2023] by L&J Commission, released on February 19, 2024, testifies to it: 2,381,465 cases were instituted during this period against the disposal of 2,308,461 cases confirming net increase of 73,004.
It is a pity that our courts are still following the outdated procedures and methods whereas many countries have adopted e-system for filing of cases and their quick disposal through fast track follow up using the offices of magistrates at grass root levels.
The main aim of judicial reforms should be elimination of unnecessary litigation and facilitating smooth running of affairs between the State and its citizens. Once both learn to act within the four corners of law, there would be drastic decrease in litigation. It is painful that presently the governments are the main litigants. They usurp the rights of people and then drag the poor citizens in courts. We all know the reasons for this morbid state of affairs but nobody want to fix it. Judicial reforms does not stipulate asking for more judges and funds, but eliminating unnecessary litigation and its quick disposal and to help reduce its occurrence in the first instance.
A case in point is the United Kingdom where the number of income tax payers alone is over 30 million whereas appeals reaching the Lord Chancellor in a year number only around 30. This confirms the tremendous public satisfaction with the credibility of system and good governance by fiscal administration. On the contrary, in Pakistan every year over 70,000 appeals/references/writ petitions are filed against the orders/actions of the tax authorities, whereas total number of income tax taxpayers has yet not reached even the five million mark. Litigants have to wait for years to obtain orders. On the contrary, in civilized countries, very few cases go for litigation to higher courts.
It is hoped that Chief Justice of Pakistan before his retirement in October 2024 with the help of all his fellow judges will strive to remove the root cause of excessive litigation and delays in dispensing of justice. The main aim of judicial reforms should be ending unnecessary litigation and for this all the three pillars of State—Legislature, Executive and Judiciary—will have to work hand-in-hand.
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Dr. Ikramul Haq, Advocate Supreme Court, is Adjunct Faculty at Lahore University of Management Sciences (LUMS) and member Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE)