Dr. Ikram Ul Haq and Hassan Aslam Shad
“Law’s expire is defined by attitude, not territory or power or process” – Ronald Dworkin
At a very basic level, law’s enterprise is essentially one of protecting the weak against injustice and oppression at the hands of the high and the mighty. This “least common denominator” finds resonance in all legal systems of the world regardless of the different political, social, and cultural precepts underpinning each legal system. However, this basic principle is often misused in developing countries. The main fault behind this selective applicability of the law and in legal system of those countries is silence of public over violation of their fundamentals rights by the oppressors which in most cases are the state institutions and their representatives. People remain silent over the violations of their fundamental’s rights as they are not familiar with the law which guarantees protection of their rights such the life, liberty, peace, ensuring fundamental rights, protecting right of minorities, promoting social justice. However, there are also societies like ours where laws are only good on paper with little to no implementation.
Law as a Tool of Oppression
But what if, instead of protecting the weak, the law itself becomes an instrument of tyranny and oppression?
Welcome to the Islamic Republic of Pakistan where—and this is no exaggeration—the legal system has been systematically weaponized to oppress the weak. Like the human body’s fight against the invading COVID-19 virus can lead to overkill in case the body’s cytokine storm ends up preying on the body, Pakistan’s legal system, instead of serving society, has ended up becoming its arch nemesis. We are all aware of the countless injustices in our society, therefore, there is no need for specific examples.
Law’s capacity for mayhem in our society could not have been starker than it is today. The biggest casualty of all this has been the evisceration of hope from society—something we find very alarming.
What Prompted this Writing?
So, what has prompted the writing of this article? Isn’t our society like a sponge with an infinite capacity to absorb injustices? What is the need for another piece of writing that solicits change? After all, there have been countless initiatives over the years that have failed to precipitate positive change. Any call for change in Pakistan is unfortunately stonewalled by short-lived public and institutional memory and pushback by the elite (more on this later). We are mindful that our writing too faces the serious risk of being an exercise in futility.
Yet, we have no choice. We must speak. Despite the odds stacked against us and faced with a fossilized system that refuses to change, we are compelled by our conscience. The last proverbial straw that broke the camel’s back was the grisly murder of Noor Muqaddam and countless other injustices against women and the weak. This has exposed the ever-widening cracks in our legal system that have sucked up the hopes of many. We will not talk about ‘legal reform’—a term that has been endlessly recycled and, as a result, lost its true meaning. Instead, we will provide a bird’s eye view of some deep-rooted fissures in our legal system and propose some changes which, if implemented, can hopefully put this derailed train back on the track.
Law’s Universe within the Galactic Framework
Instead of looking solely at Pakistan’s legal system, there is a need to take a more holistic view and examine its correlative and causative relationship with society. After all, law takes seed in society and various forces within society, which in turn shapes its future trajectory. Law and society are two sides of the same coin that are intrinsically interwoven across various dimensions. In other words, law’s universe exists within a constellation of galaxies—each with their own universes. There is an intrinsic gravitational pull as well as, paradoxically, tension between these galaxies. Law’s universe not only shines bright on its own, but its halo also shines through the galaxies in which it exists. Unless we take a telescopic view of the entire constellation, we will not be able to understand law’s universe and its place within the broader galactic framework. If we can identify some of the blackholes in our law’s universe that have sucked up hopes for equality and justice, then we would have discharged some burden through this writing.
The starting point for this discourse is to first view law and the legal system as a standalone universe consisting of laws and rules, the various players within the legal system (judges, establishment, and lawyers), and their relationship with one another.
Due to its common law roots, Pakistan has a robust set of laws which, at least in theory, cover most, if not all, facets of societal relationships. Legal framework of criminal justice system is based on Code of Criminal Procedure 1898 (CrPC) and Pakistan Penal Code 1860 (PPC). Both these laws provide the procedures for the entire criminal system from filing First Investigation Report (FIR) to police, the procedures, and functions of all components of the system, trial by the courts, filing appeals against the decision of trial courts to the final disposal of the case by the Supreme Court, including correction at jails. Though amendments have been made in these laws to align them with the current needs, the structure to run the criminal system is still outdated. Moreover, the role of police is compromised in ensuring the fundamental rights of the citizens. In most cases, citizens have a tough time in filing the FIR with the police. Similarly, as per the World Justice Project Report 2020, Pakistan’s civil justice system measured based on accessibility and affordability, no discrimination, no corruption, no proper government influence, No unreasonable delay, effective enforcement, impartial and effective ADRs. However, none of these could get rating closer to one which was the highest possible score. All these factors were rated ranges from 0.29-0.39 except impartial and effective ADRs which was rated as 0.46. Moreover, courts in Pakistan are always (and rightfully) are blamed for judicial activism which results in deviations from assigned scope and powers defined under the law. This practice has undermined our image as a nation in the global community and impacted our social, political, and economic standing. When judicial activism leads to courts deviating from their assigned roles based on a political or personal preference, the main drawback is that their decisions set precedents for lower courts. We have a history of poor and arbitrary judgments lacking any legal substance e.g. Molvi Tameezuddin case, Dossu Case, Zulifqar Ali Bhutto case and recent Panama cases are prime examples. Moreover, due to these arbitrary decisions Pakistan also witnessed international embarrassment and suffered huge financial losses. In the Reko Diq case, Pakistan was slapped with a $6 billion penalty, whereas in Karadeniz Elektrik Uretim A.S case, the ICSID tribunal disagreed with the Supreme Court’s findings and concluded that there was no specific corruption. The Global Competitive Report highlighted that courts in Pakistan extend favourable decision against bribes and irregular payments. The judicial activism of the former Chief Justice Iftikhar Chaudhary has had catastrophic consequences for Pakistan—however, to this day, there has been no accountability of his erratic decision making. The same report ranked our judicial system in bottom performing countries 120 out of 128. Due to their poor and arbitrary decisions
The problems also lie elsewhere.
Let’s start with legal education. Lawyers, some of whom end up becoming judges, ought to be the guardians of our legal system. Yet, the quality of legal education in Pakistan isn’t just outdated; it is in dire straits. As a common perception, a majority of those who end up becoming lawyers are those who are either deemed unfit for taking up other professions, or, worse, those who take the easy route for making a quick buck. Law schools have no initial filtering or vetting process for selecting law students. Lawyers have occupied a central position in history as the agents of positive change – our Founding Father, Quaid-e-Azam Muhammad Ali Jinnah, is a prime example of a lawyer par excellence. The emphasis on rote learning (“ratta”) in our law schools leads to an “end-product” (lawyers) who, though they have the tag of ‘lawyer’, are individuals bereft of basic legal skills and with no clue about how to use law as an instrument of positive change.
As a “tree” can only be as good as the “seed”, the state must dismantle the entire legal education paradigm of Pakistan and replace it with a system that chooses candidates based on their prior educational record, skills assessment, cognitive ability and, above, all the role they envisage playing in society. Law students must be made to go through a mandatory rigorous training of a minimum period of three year and, after completing law studies, they should be made to go through a challenging bar exam that disqualifies those who fail to meet the minimum criterion. Unless we drastically reform our legal education, we will only witness further episodes of mayhem like the 2019 lawyers’ attack on the Punjab Institute of Cardiology where lawyers were seen pulling oxygen masks from patients’ faces!
Our judges are also from the same crop. Barring some exceptions specially in the higher courts, our judges are generally intellectually compromised, with some known to have political affiliations (something unbecoming of a judge). Worse, some judges enjoy a bad reputation of indulging in corrupt practices. As a result, our courts have become politicized, and the masses have lost hope in the dispensation of justice. The major problems arise when an investigation initiated on the basis for filing of the FIR. Though the investigation procedures are laid down in the CrPC and the Police Rules as well, however, the police never completes timely investigation, nor the courts are bothered about those who are subject to such flawed trials which ignores fundamental rights of the citizens. The investigation at times takes month and years to complete and, in most cases, innocent people spent their prime period of life behind the bar due to slow and time-consuming process of investigation and inadequate delay on the parts of the courts.
Moreover, due to flawed accountability system for judiciary, Pakistan’s judiciary is always rated high when it comes to corruption. The Global Corruption Barometer report highlighted that bribes and corruption in return of favourable decisions in Pakistan’s judicial system is popular and majority of Pakistani’s believe that their interaction with the courts ultimately ends up by paying bribes. BTI transformation index in their report states that Pakistan judiciary is known due to corruption, inefficiency, and delays. Similarly, the U.S State Department in their report on the Human Rights noted that delays in disposing of cases are caused due to outdated rules, insufficient courts and judges, poor case management as well as outdated legal system. Moreover, subordinate courts are always act under the influence of politician, religious people, and generals. Therefore, our judicial system is graded the in bottom performing countries by the World Justice Project Report.
The inefficiency of judges and outdates legal structures and poor accountability system of judges are the main factors in dispensations of justice. It is a high time for us to introduce new reforms agenda to improve our judicial system. We need to work on the capacity building and awareness of our law enforcement agencies, ensuring of effective and prompt prosecution and adjudication of cases, our prison, parole, and probation system should be aligned with international best practices. Similarly, judges of superior court should be trained to understand financial crimes strategies so that they could apply judicious mind in deciding cases related to white-collar crimes. Operational capacity of the judiciary should be reviewed and if required should be enhanced. There must be checks and balances on the superior courts and the performance of the judges should be monitored by the parliament.
The role of Bar and Bench also plays an important role in the administration of justice. This relationship demands mutual respect as the bars are incubation centres for the judges. The interdependence of both judges and advocates makes their relationship strong. However, this relationship is facing some troubles since last few years. The decision about appointment of judges most of the time creates unrest among the legal fraternity. In recent past, the confusion started when during the tenure of Justice Asif Khosa’s actions were taken under the name of judicial reforms in the county. The tension further escalated when National Judicial Policy making committee (NJPMC) recommended changes in section 22A and 22B of CrPC regarding registration of FIR refused by the Station House Office (SHO) and the aggrieved party can contact the lower court for the same purpose. The further continued when a judicial reference was made against Justice Faez Isa. In response, the Bar launched protests and the relations between bar and bench further deteriorated. Recently, the appointment of junior judges in the Supreme Court created further complications. The lawyers around the country staged protests against these controversial appointments and criticized the role of chief justices in appointment as well as formation of bench in the court to hear specific cases and their arbitrary decisions. The dilemma of our judicial system is that the appointment in the superior judiciary is often based on the favouritism and in most cases political affiliations. Recently, a judge was appointed in the Lahore High Court who was a candidate of provincial assembly from the ruling party. These political appointments in the higher courts don’t set healthy precedent and their arbitrary decision creates chaos.
It is high time for Pakistan to raise the bar for its Judicial Standards. Our judicial system still fails to honour basic human rights, promotes populist convictions on rape, aides political victimization, and ignores silencing of dissenting voices and then turns a blind eye of people being put in prison by government and accountability courts even without compete and fair trial which is a sheer violation and denial of their fundamental right of fair trail available under Article 10-A and unfortunately this has become new normal in our society. Apart from domestic abuse, these injustices affect Pakistan’s standing in the world. Our honourable judges need to review their performance, conduct, and the quality of justice that they are providing to us to get us place with highly respected judiciaries rated in WPJ like Denmark, Norway and Finland. Instead of being a part of underperforming club right below Zimbabwe.
It would not be an exaggeration to state that Pakistan’s legal system has completely failed society. No nation in history has been able to stand on its feet without a functioning and efficient legal system. We can only bow to justice when justice guarantees equality of opportunity and outcome. Law’s attitude, if constructive and forward looking will guarantee stability. But if law continues to be weaponized to oppress the weak, then it will end us taking us back to an archaic and medieval Hobbesian state of nature which guaranteed only the strong and powerful to survive and prosper.
The writer, Advocate Supreme Court, is member of Advisory Board and Visiting Senior Fellow of Pakistan Institute of Development Economics (PIDE) and Adjunct Faculty at Lahore University of Management Sciences (LUMS).
Hassan Aslam Shad is an international lawyer based in the Middle East and a graduate of Harvard Law School, U.S.A. He can be reached at: firstname.lastname@example.org