Huzaima Bukhari & Abdul Rauf Shakoori
“The people before you were destroyed because they used to inflict legal punishments on the poor and forgive the rich”—Hadith by Prophet Muhammad (PBUH) Sahih Bukhari Volume 8, Book 81, Number 778
The above narrated Hadith in Sahih Bukhari is the golden principle of law that Islam and Prophet Muhammad (PBUH) laid down centuries ago. Our jurisprudence and the legal system should have adopted this path of light in its pursuit of dissemination of justice. The courts and honourable judges are entrusted with one of the most sacred responsibilities. With the stroke of a pen they can impact the present and future of individuals and the state. Judiciary represents the only forum where people can get justice. An effective justice system is vital to ensure rule of law, providing a mechanism to address grievances for offences against individuals and society.
The justice system should operate in a way that people can resolve their complaints peacefully and efficiently. Basic litmus tests for good judicial systems include accessibility, affordability, free from discrimination, corruption, and influence of powerful elite. However, unfortunately, the current system in Pakistan fails on these yardsticks. There exists in treatment and application of law, a clear dichotomy between the powerful elite and the ordinary citizens. Court proceedings are undertaken with delays beyond reasonable length (sometimes decades) of time. The attached financial costs and emotional trauma cannot be borne by the common man. Consolidated statement as of 31st August 2021, shows pendency surpassing 2.1 million in the Supreme Court of Pakistan, Federal Shariat Court, High Courts, and District Judiciary. People prefer settling disputes themselves without seeking any legal remedy through these forums.
The recent judgment passed by the apex court for demolishing certain residential buildings in Karachi has stirred a new debate mainly because of a completely opposing decision in similarly placed cases. The judgment directs authorities to remove all persons from the building, take possession and start the demolition process immediately, preferably through controlled dynamite demolition. The owners, who invested their lifelong savings in these projects to enjoy a respectable life are left homeless with their rights as “innocent bona fide third parties” being ignored while government bodies have begun implementing demolishing orders. Conversely, a few years back, lease for a famous high-rise building was canceled by Capital Development Authority (CDA) for violating its terms. Apartments in this building are owned by the powerful elite of the country, including the present Prime Minister and Ex-Chief Justice. The apex court, in that case, ruled in favor of property owners and imposed a penalty which was to be paid in installments to CDA. It maybe mentioned that one of the deciding bench members had previously served as legal counsel for the property developers which tantamount to “conflict of interest” besides violation of the judge’s code of conduct making it as one of the most controversial judgments. Disregard for the basic principle of conflict of interest continues to date.
In another recent computerized balloting by Federal Government Employees Housing Authority (FGEHA) few of our judges and their spouses were announced as lucky winners. The Islamabad High Court (IHC) issued restraining orders against allotment of plots to the extent of judicial officers, who were serving or had served in the IHC and its district courts. The same order was challenged in the Supreme Court and one of the honourable members of the bench was among the recipients of plots. Such decisions and actions are detrimental shaking the faith of citizens in the overall justice system.
The practice of questionable judgments of the higher judiciary is not new. Pakistanis are facing this issue since 1947. Although the founder of Pakistan was a strong believer in equality, justice, and fair play, the judiciary has mostly acted against these principles. Courts in Pakistan are often blamed for judicial activism and judges feel proud to deviate from their legally-assigned scope and powers. Judicial activism never brought any good for the country or the citizens or deliver justice to aggrieved parties. It has rather undermined our image as a nation in the global community and impacted our social, democratic, and economic standing.
The notorious doctrine of necessity propounded by Justice Munir has haunted us for decades opening doors for dictators. Justice Cornelius in Dosso case gave concurrent judgment legalizing the action that certainly helped him to secure the position of the Chief Justice of Pakistan. So, in return, it appears that he obliged Ayub Khan over his illegal actions against dissenting voices and the use of PRODA and EBDO to convict opposition. This undue favour by superior judiciary to the powerful continued in the era of Zia where the judiciary not only helped him implement his presidential orders but also to overthrow elected Prime Minister, Zulfikar Ali Bhutto. The way the trial court and then the Supreme Court handled Bhutto’s case issuing a guilty verdict, was criticized at domestic and international levels. The former US Attorney General Ramsey Clark called it a mock trial fought in kangaroo courts. In the Musharraf era, these judges legalised the abrogation of the constitution by allowing him to make changes therein.
Later, Chief Justices’ poor and arbitrary judgments lacking legal substance brought international embarrassment and huge financial losses to Pakistan. The most controversial era started when a judge blatantly used the honourable office in running political campaigns and settling personal scores. He deliberately violated his code of conduct by interfering in administrative matters, meeting with politicians, and participating in election campaigns. We witnessed him appearing on TV as chief Justice; in live shows advocating for building the dam and asking for funds from litigants in open court making another inroad on the credibility of our judicial system. He assigned important cases to his handpicked team that gave controversial judgments. During his tenure, the judiciary decided the famous Panama case by twisting the facts and introducing a new logic in legal and accounting history by calling receivable salary an asset, which was a write-off of bad debts in terms of the Income Tax Ordinance, 2001 while section 132 of the same Ordinance does not require reporting of receivable incomes by individuals. However, an unpopular dictionary definition was selected to fulfill their motives and support their decision, which entirely negated the concept of receivable and payable.
Similarly, a judge was removed without investigating the sanctity of the claims he made and in Justice Faiz Isa case created doubts in the minds of many when the Supreme Court ordered an inquiry into Justice Isa’s wife by the FBR, even though she was not a part of the petition taken up by the bench. Whereas the same Supreme Court bench utilised different principles in Imran Ahmed Niazi, Sheikh Rasheed Ahmed, and various other matters of similar nature. At times, tactical delays have also been adopted in important cases related to ruling party matters. Most recently a retired chief judge of Gilgit Baltistan signed an affidavit alleging that an ex-chief justice verbally directed another judge not to release Nawaz Sharif and Maryam Nawaz before the 2018 elections.
All these examples show that Pakistan needs to revisit the judicial system. Judges blatantly violate their code of conduct and pass questionable judgments without any fear of accountability. The existing Supreme Judicial Council is not aligned with the best practices. Appointment of judges and accountability should be made through parliament. Without implementing strict accountability procedures, we cannot restore confidence of the people in our judicial system. Civilized nations ensure that judges should not be biased and uphold the constitution. Therefore, Canadian Ethical principles for judges issued by the Canadian judicial council states that:
“Judges should disqualify themselves in any case in which they believe that a reasonable, fair-minded and informed person would have a reasoned suspicion of conflict between a judge’s interest (or that of a judge’s immediate family or close friends or associates) and a judge’s duty.”
The global principles and ethics about conduct and impartiality of Judges are very clear, we need to take inspiration from such references and the same must be implemented in letter and spirit. Our honourable judges need to ponder over the amortizing public trust level and bring reforms within their institutions. Justice works as an indispensable pillar for the society and judicial reforms should not be ignored.
Huzaima Bukhari, Advocate High Court & Adjunct Faculty at Lahore University of Management Sciences (LUMS), is member Advisory Board and Visiting Senior Fellows of Pakistan Institute of Development Economics (PIDE). Abdul Rauf Shakoori is a corporate lawyer based in the USA and an expert in ‘White Collar Crimes and Sanctions Compliance’. They have recently coauthored a book, Pakistan Tackling FATF: Challenges and Solutions, with Dr. Ikramul Haq