Essay: The judicial system in Pakistan

The current judicial system of Pakistan roots back to the medieval period and even before. The judicial system that we practice today has advanced over a long period of time, crossing roughly over a whole era. The system has passed through several epochs, covering the Hindu era, Muslim period including the Mughal Empire, British colonial period and post-independence chapter. Notwithstanding the successive changes i.e. one rule/dynasty substituted by the other, which naturally resulted in the socio-economic and political transformation of the Indian society, the judicial system generally maintained a steady growth and gradual advance towards consolidation and improvement/refinement, without indeed, having to undergo any major disruption or breakdown .
During this process of progress and growth, the judicial system did receive encouragements and inspirations from foreign doctrines/notions and homegrown norms/practices, both in terms of organizing courts\’ structure, hierarchy, jurisdiction and adopting trial procedures/practices. Consequently, the present judicial system is not a completely foreign transplant, as is commonly assumed, but has attained a native flavor and national color. And while the system may not fully suit the prodigy of our people or meet the local conditions, its continued application and practice has made it comprehensible to the common man. The very fact that increasing number of people are resorting to the courts for the resolution of their conflicts/disputes, indicates that the system enjoys a degree of legitimacy and acceptance .
The thesis is anchored on the research questions: What is affecting the dispensation of justice on the protection of fundamental human rights in Pakistan? What are the causes of delays and backlogs?
1.2 Research Aims and Objectives
“Justice delayed is justice denied”. No society can exist without justice. And justice is conveyed to the people by a strong, feasible judiciary. Judiciary, being one of the significant structures of the state, plays important role in the solidity of society, as it provides quick respite to the public. But when justice is delayed, the letdown of judiciary starts. As a consequence, society drops into disorder. In case of Pakistan, this also holds true. Judiciary cannot deliver justice expeditiously to the people .
The purpose of this thesis is to focus on the delay and backlogs in the judicial system of Pakistan, which results in the deferrals of fundamental human rights. Also what causes the delays, despite of various law commissions/committees constituted by the government in order to develop ways and means to meet the challenge of delayed justice?
The topic “Challenge of Delayed Justice” is not a new one but has endured a subject of discussion and negotiation for well-known Jurists, Scholars and various Law Commissions/Committees established by the Government in order to change ways and means to meet the challenge of delayed justice . Though, the anticipated results could not be accomplished. Since 1956, consecutive governments have come up with a large number of Commissions and Committees on judicial reforms, the details of which are as follows :-
• Commission on Marriage and Family Laws, 1956;
• Law Restructuring Commission, 1958;
• Law Reform Commission, 1967;
• High Powered Law Reform Committee, 1974;
• Law Committee for Recommending Measures for Speedy Discarding of Civil Litigation, 1978;
• Secretaries’ Committee set up by the President to Examine the Recommendations of the Law Committee set up for Recommending Measures for Speedy Disposal of Civil Litigation, 1979;
• Committee to Formulate Concrete Proposals for Simplifying the Present Legal Procedure
In 1981, the government set up a perpetual Pakistan Law Commission (PLC). The Pakistan Law Commission has been issuing judicial figures and the Pakistan Law Digest (PLD), but it has not been very definite in shifting the nature of understanding of justice. Some of the commendations of these commissions relating to the Family Laws Decree, the formation of the Federal Judicial Academy, the Pakistan Law Commission and parting of the executive from the judiciary have been applied after a substantial delay. Substantive issues about day-to-day dispensation of justice, such as those concerning court facilities, structures, salaries of the judges, changes in procedure serving, making of witnesses, developments in examination and trial of criminal cases, implementation of rules and codes to cut down on delay and protracted inaction and prison improvements have not been implemented despite their repeated enunciation in reports .
Members of civil society have also come up with thoughts for judicial reform. One such idea was to restore the judiciary through developments in inducements, organizations, infrastructure and information . The examination points out that the government’s political will to modification needs to be absorbed in a manner that will lead to incentive of judicial officials through better incentives and employing a Federal Public Service Commission, better internal and external answerability and checking by introducing measures such as the experiment by jury system and selection of a parliamentary protection of citizen’s rights, changing infrastructural limits such as delivery of professional court clerks, calculation facilities, law interns, libraries and the easing of a better quality of decision-making through proper lawful instruction and training for judges which would require enhancements in law colleges’ prospectuses .
1.3 Civil and Criminal Justice in Pakistan
There is no doubt that delay in justice is not only a dare but stances a thoughtful hazard to the civil and criminal justice system in Pakistan. In spite of the fact that delay is a worldwide occurrence but in Pakistan, the place has become startling. The Pakistan Law Commission has taken knowledge of the subject and detected that “the civil and criminal justice system in Pakistan is challenged today with stern predicaments of irregular postponements . Delay in lawsuit of civil and criminal cases has become lingering and familiar. The phenomenon is not limited to Pakistan; it is rather old and universal. It is intrinsic in every judicial system which accurately pickets against any injustice being done to an individual, in a civil argument or a criminal trial. A dominant code of the criminal justice system is that a suspect is chastised only after his fault is evidenced beyond rational uncertainty. Similarly, justice stresses, that in a trial of a civil case, the argument must be definite and firmly in accordance with law and on the values of equity, justice and fair trial . Such universally documented and time-tested principles are in accord with the commands of Islam as the Holy Quran orders that Muslims must avoid unfairness, coercion, and suppression” .
In Pakistan, one stern disadvantage of the management of justice is, delay. Delays always befall in the removal of civil and criminal cases. It is usual for an ordinary civil suit to dawdle on for as long as two decades, and on the conclusion of the trial, possibly additional half a decade passes by in the implementation of the verdict. In criminal cases also, the situation is quite gloomy. Rare delays occur in the discarding of cases by the courts . An example of uncommon delays is established by the fact that, conferring to a rough number, presently more than two-thirds of the jail prisoners includes of under-trial convicts. Such phenomenon corrodes the trust of the people and their sureness in the management of justice. Delays in the settlement of civil disputes, further prompt hindrance to the litigant community, also obstruct the socio-economic development of the society. It aids as a deterrent to foreign investment in our economy and disturbs our trade relations with foreign governments/multi-national companies .
UN guideline for Prosecution and Prosecutors
Qualifications, selection and training
1. “Persons selected as prosecutors shall be individuals of integrity and ability, with appropriate training and qualifications”.
2. States shall ensure that:
(a) “Selection criteria for prosecutors embody safeguards against appointments based on partiality or prejudice, excluding any discrimination against a person on the grounds of race, colour, sex, language, religion, political or other opinion, national, social or ethnic origin, property, birth, economic or other status, except that it shall not be considered discriminatory to require a candidate for prosecutorial office to be a national of the country concerned”;
(b) “Prosecutors have appropriate education and training and should be made aware of the ideals and ethical duties of their office, of the constitutional and statutory protections for the rights of the suspect and the victim, and of human rights and fundamental freedoms recognized by national and international law” .
Status and conditions of service
Prosecutors, as vital agents of the management of justice, shall at all times uphold the honour and dignity of their profession.
States shall safeguard that prosecutors are able to do their professional functions without pressure, interference, annoyance, inappropriate intrusion or baseless exposure to civil, penal or other liability.
Prosecutors and their families shall be substantially protected by the authorities when their personal safety is endangered as a result of the discharge of prosecutorial functions.
Rational conditions of service of prosecutors, satisfactory compensation and, where applicable, tenure, pension and age of retirement shall be set out by law or published rules or regulations.
Promotion of prosecutors, wherever such a system exists, shall be based on objective factors, in particular professional qualifications, ability, integrity and experience, and decided upon in accordance with fair and impartial procedures .
1.4 Cause of Delays and Backlogs
The reasons of backlog and delays are varied and thoughtful, rising due to issues both inside and outside courts, and legal/procedural gaps/lacunae. Justice delayed is, certainly, justice denied. Therefore, it has always been the main distress of civilized societies to speak the issue of delayed justice with an understanding to find ways and means of eliminating defect/lacks in the management of justice. It would be incorrect to accept that the delinquent of backlog/delays has been totally ignored in the past . It has been acknowledged by the government from time to time. Numerous Law Reform Commissions and Committees were established with an opinion to inspect/analyze the reasons of delay as well as to propose suitable actions for improvement. Such Commissions/Committees approved out a thorough inspection of the procedural laws and rules and recommended suitable actions for improvement thereof. Some such commendations were acknowledged by the Government and applied through amendments in laws/rules. The Honorable Supreme Court and High Courts have always been studying their particular rules of procedure so as to safeguard quick and reasonable disposal of civil and criminal cases. From time to time, the High Courts have issued managerial directions to the subservient courts for prompt disposal of cases. The reform of procedural law, though, has been a continuous and interminable procedure. Laws need to be studied and transformed in keeping with the shifting times so as to manage with the developing certainties. The speedy disposal of cases is certainly a creditable objective. Though, it is not an end in itself; it is only a means to an end. That end being the facility of quick and reasonable justice. It is undeniably not delay per se which is offensive but an irrational and indefensible delay which needs to be checked. The necessities of justice demand that adequate time and passable chances should be made accessible to the complainant parties and defendant persons to state their cases and put across their defence before the court of law. In the process delays may happen, but it would be overlooked if it is in the concern of a just and fair disposal of the case. On the contrary, the propensity to hurry disposal of cases must be checked if it is likely to result in an unfair, partial or random order or result .
The query of delayed justice has been inspected by numerous Commissions and Committees and references were made at different points of time but no fundamental change was suggested in the current judicial system. These endorsements can be abridged as follows:-
i) Suitable alteration in the applicable laws.
ii) Upsurge in the number of Judicial Officers.
iii) Supplies of acceptable number of court-rooms and proper lodging to Judicial Officers.
iv) Upgrading into the working of examination and trial agencies.
v) Training services to Judicial Officers.
vi) Development in Procedure of serving Agency.
vii) Improvement in the retirement age of Judges.
viii) Proposal of Challan in time, the examination branch of the Police should be reinforced, the number of Forensic Science Laboratories be amplified and the Court should take thoughtful notice of carelessness or excessive delay/default in the time of suggestion of Challan.
ix) Recurrent suspension of cases should be evaded.
x) Junction of the civil and criminal purposes at the level of District and Sessions Judges.
xi) Systematic preparations of managements and control by the High Court over the working of secondary courts. The cases of exploitation, disorganization and in proficiency must be taken notice of and suitable punishments conferred .
Delays in the dispensation of justice have become unqualifiedly bad. This system of uneven justice is not new and certainly not limited to FATA alone. In Punjab, a punchayat authorized the gang rape of a woman as a penalty for a crime supposedly committed by her brother while in Sui a female doctor who stated being raped was herself professed a Kari by her in-laws and henceforth accountable to be killed . Such oppressive and brutal systems of decree are found most commonly in the rustic vicinity where people often need the defensive arm of the law and pledge of justice, both of which are non-existent. A great level of illiteracy, a retrograde and medieval approach and the occurrence of misogynistic views among a large section of the people further multiply the problem. Also if education and applying respect for the law, the government has to safeguard the justice system that spreads rural zones so that those who live there are not left at the pity of panchayats, jirgas or ‘peace committees’. Also, as an alternative of substitute as an assistant in such transgressions, it would be better if official authorities depress all form of random and swift justice anywhere in the country . Although deliberating the question of delayed justice the essential question rises qua disintegration of the police system in place and its total incapability to retort to crimes connecting issues such as tribal and feudal pressures and domination of the informally and economically feebler sections of society, which include women. (Yes, just to give few examples of rural justice system) A woman exposed by a tribal court to gang-rape or a couple murdered as karo-kari or a plow compulsorily displaced from his land by an influential owner or a government agency have the chances loaded against them from the start. The patwari-police-feudal lords’ alliance remains to be a crippling story of rural life. In many cases, it may be difficult for a victim to risk out of his or her house to lodge a report with the police. Where access is conceivable, the victim comes up against the wall of police triviality and venality. The force has been so tarnished and daunted by continuous burden from the state mechanism, from governmentally important people and from local tribal groups to evade the law that it has mainly forgotten its accountability to the people . It is ill-fated that the magistracy and the lower judiciary are vulnerable to the same weights. It is worth remembering that it was a suo motu Supreme Court notice that caused in the registering of a report in the Mukhtaran Mai case. In this background, how the law is to be understood in a social setting boons a major predicament. Should a Judge strictly follow to the opinions of legal procedures, as he is predictable to do, or look at the whole situations surrounding an event? This is a recurrent quandary that has confronted the judiciary in every country down the ages. It has been informal to resolve in countries, where the rule of law, constitutional procedures and respect for democracy has been resolutely established; also where feudalism and the feudal attitude have been laid to rest. Regrettably, in our country, even the government is subjugated by feudal rudiments. There can be little hope of social justice unless the entire system is democratized. The state itself has to become kinder and less tyrannical. Justice, like any other purpose of state, cannot function in a void. Temporarily, the people will remain to look up to the judiciary to present an element of social justice in the system, and to act as a force for reorganization and progress .
1.5 Insufficient Number of Judges
Another reason backing the delayed justice is that adequate numbers of Judges do not exist at numerous levels to manage with the uncountable number of cases before the Courts. This needs to be earnestly tackled. For years the subject has been preserved as only a talking point with no thoughtful steps taken to address the problem .Though, it must not be elapsed that although this may be partially precise neither is the condition ready for it, nor can we find the appropriate Judges to harvest the wanted outcomes. You do not hire just a Judge but form a Court and it is neither a low-cost exercise nor so simple to do. A Court to work competently needs well-organized and knowledgeable staff and also syndicates a number of other issues, fading which it will prove counterproductive. Regrettably, the idea of adding of more Judges to the present strength has been highlighted so much and so often by so many well-known people that now, it is being painstaking as the only cure of the disorder regardless of the hard reasons involved. If disorganization is added to incompetence, it will not bring efficiency: it will instead simply increase it. It may not be out of place to comment here that the backlog is not much pretentious but exploitation has amplified respectively, or much more, and the excellence and efficiency have decreased similarly .
Past is full with examples of cases that have either never been decided or where the government has miscarried to implement the court’s choices. These aspects have all added to the public’s poor insight of the system and also clarify why so many turn to jirgas and panchayats to resolve disputes, notwithstanding bans on these establishments . The government has to work in partnership with Judges and lawyers to reinforce the judiciary so that it is seen as a self-governing body that brings justice promptly. The ADB sponsored “Access to Justice” program, which began in 1999, and was exposed as a technique to safeguard speedy justice, does not seem to have met with much achievement. It has been problematic to determine what, if any, of its suggestions were put in place and what were the results of those applied. If applied in letter and spirit, the program could certainly make the release of justice speedy .
The wanted outcomes cannot be attained without making radical changes and improvements in the lawmaking, judicial and police departments to make the dispensation of justice swift. This is the only way which can reinstate the sureness of people in the judicial system which confidence has been corroding over the years for a number of reasons . A reasonable, easily available and well-organized judicial system will dishearten many from resorting to the similar justice system, predominant particularly in the rural area in the form of Jirga or Panchayat, which in many cases have been instruments of failure of justice. The new Police Act also needs upgrading and the imprint that everything is well at the gross root level is not right. Also that, high payment, improved working and living settings for the police and the lower judiciary needs to be applied. The physical look and feel of the police stations and courts also need to be enhanced. These are the parts which must be dealt with on an urgency basis if speedy and low-cost justice is to be made accessible to the people. The judicial reform program must be a continuing exercise across the country and economic possessions should not be a deterrent in this respect. The race for money attached with the easy probabilities of getting provisional orders from the Courts on the basis of falsification of facts and false insistences and the known delay in disposal of cases, has desirous a substantial share of the public to take up lawsuit as an occupation and advantage from the rights and properties of others. The outcome is that the number of cases is piling up every year, totaling to the preceding intolerable delay in their disposal. The current backlog of the cases and the unceasing adding to it is thus a straight result of not honest trial but of false and fake lawsuit. The backing for such lawsuit is the delay in disposal of cases. The procedure is therefore; not only grudging the honest distressed persons from relishing their properties or getting their cases disposed of prompt but is burrowing the ethical energy of the people . In other words, the predominant condition is not only inspiring but increasing what Islam wants to eliminate. Islam asserts on justice. The oddest facet of this condition is that there is in this country, not even a single person who would openly document this sad state of affairs to go on but still it is prospering. In any event, the important question is how to get rid of it and present swift and pure justice? It is certainly, a tremendously odd and complex problem but, as noted above, the failure for any reason to contend with the problem and to overwhelm it, is providing additional attractions for more dishonest people to arrive the field and reap attractive produces. One of the preparations being very deafeningly recommended now all around, mainly, by the members of judiciary and the legal profession, is to upsurge the number of Judges .
1.6 Criminal law Drawbacks
Our criminal laws have the subsequent drawbacks due to which the anticipated admiration for law and swift dispensation of justice cannot be attained:-
(i) Absenteeism of politico-religious permission of the punitive, local and special laws as well as nonexistence of their mass understanding by people;
(ii) “Justice delayed is justice denied” is a basic principle of Islamic jurisprudence. It is hitherto to be understood in Pakistan. Faster, inexpensive, general and better-administered justice is the demand of the people of Pakistan;
(iii) Deficiency of specificity of multi-dimensional laws conferring to our local needs on balanced lines by impartial and similar supplies of many laws functioned by parallel justice opportunities also confuses people;
(iv) Non-adaptation of much wanted amalgamation and interpretation of laws for prevalent understanding and no availability of criminal codes in legal Urdu is another obstacle;
(v) Unreasonable penal authorizations as in contradiction of set patterns of Islamic penology also puzzle people .
The criminal justice system present in Pakistan was relocated by the British during their colonial rule in the last century and a half which is now the chief reason of abandonment in compensation of public complaints . There is a dire necessity of development of the lot of our judiciary to make it more self-governing with better service circumstances to deliver justice to the masses rendering to the universal values of inexpensive and quick settlement of victim’s complaints. The trial wing also desires instant strengthening after its parting from the Police with much more wired staff, better controlled organization of tasks, proper offices and housing-cum-transport facilities. The public based justice, which has a antiquity of thousands of years of our better being in this sub-continent, needs reconsidering and the system of conciliation courts needs strengthening. The swift clearance of cases with conviction of fair justice, suitable punishments to real offenders and public reaction for perfect social defence should be our nationwide precedence to build-up a crimeless Islamic state in Pakistan .