Mr Muhammad Hamza Tanvir graduated from COMSATS University. He has a keen interest in international relations and regional politics.
From the famous Maulvi Tamizuddin case to the recent allegations of ex-Gilgit Baltistan Chief Judge Rana Shamim, the role of the judiciary in the country has always been controversial. The recent report by the International World Justice Project also criticized the justice system of Pakistan.
Although many people hold that such reports by the Western institutions have always been used as a propaganda tool by the enemies of the state, the perception among the masses inside the country is parallel to these reports. Many people inside the country are unsatisfied with the Judicial system of the country. They have lost faith in the judicial system of Pakistan.
There are a host of reasons behind this lack of trust in one of the most important organs of the state but the delayed justice and long proceedings are the primary reasons. Indeed, every citizen in the country wants a swift and cheap justice system but it has now become a dream in Pakistan. Many people, especially the citizens of Swat and tribal areas, can be seen remembering the judicial system of the then State of Swat.
The delayed justice in Pakistan is also one of the reasons behind many crimes as some impatient people instead of going to the courts of the country approach their local jirgas and panchayats which most of the times give unfair or inhumane punishment to the accused despite very few or unreliable evidence, or the victims take the law into their hands to take revenge which leads to more crimes.
Failure of the judicial system also lowers the morale of the Law Enforcement Agencies (LEAs) as it has been seen many times the officials from LEAs claim that they arrest the terrorists but they are released by the courts on a technical basis. Just like other institutions in the country, the judicial system of the country should also be reformed.
If the judicial system of the country is not reformed timely and political influence is not curbed out of the courts, it could result in an unprecedented disaster and can pose a grave threat to the existence and sovereignty of the country.
Flaws in the Justice System of Pakistan
One of the major and most fundamental flaws in the judicial system of Pakistan is the curriculum and the procedure for becoming a lawyer. In Pakistan, it is a common perception that pursuing an LLB and becoming a lawyer is easier than getting a degree in any other field. The examination system of LLB is so flawed that many law students are found claiming that they can pass the exams with minimum effort from any university of the country and can then be regarded as advocates.
The educational and examination system of LLB needs to be reformed at the earliest as many incidents show that the protectors of law, the lawyers, know less about abiding by the law. The lawyers in the country have very often been seen indulging in violence and activities that are inappropriate and do not suit the honor of the profession that they have.
Most recently, a large number of lawyers had attacked the office of the Assistant Commissioner of Sialkot, Sonia Sadaf, after she demolished some illicit structure during the anti-encroachment drive. The Naib Tehsildar has also stated in his complaint to the police that after throwing out the furniture of the office of AC, the mob of lawyers gathered at Kachehri Chowk and used abusive language against the female officer.
A similar case had also been reported in November last year, when Dr. Sajida Ahmed, a female Additional District and Session Judge from Punjab, wrote an open letter to the Chief Justice of Pakistan and the Chief Justice of Lahore High Court in which she stated that rearing cattle and making dung cakes in her village would have been far better than joining the judiciary as she has had to face disrespect and naked abuse from lawyers every day in court.
She went as far as to mention that if suicide had not been prohibited by Islam, she would have committed it in front of the Supreme Court building due to the unending abuse that she and her female colleagues have had to face on daily basis. In Pakistan, the criminal courts were created under the Criminal Procedure Code of 1898. This old system is not efficient enough to deal with the intricacies of the modern world.
Justice System in Swat
People of the country, like any other person living in the world, seek swift and cheap justice but the old criminal justice system of Pakistan abstains them. In the case of the Pashtun society of Khyber Pakhtunkhwa, this quest for speedy and quick justice has resulted in the induction of the people in terrorist organizations like the Tehreek e Nifaz e Shariat e Muhammadi of Sufi Mohammad whose efforts led to the Nifaz e Nizam e Sharia Regulation (1994), Nifaz-e-Nizam-e-Sharia (1995), the Nizam-e-Adl Regulation and the taking over the functions of government in Swat.
These enactments, however, failed to operate as no groundwork had been laid to make them effective. The erstwhile judicial system of the State of Swat was viewed as effective, cheap, and swift by the people of the Pashtun society, but the merger of Swat with Pakistan in 1969 changed the legal system in the erstwhile state.
The Provincially Administrated Tribal Areas (PATA) regulations were declared unconstitutional by the apex court in 1994 and further exacerbated the situation. Thus, it would be cogent to say that the weak and old criminal justice system provides the basis for tarnishing the social fabric of society and provides loopholes for new crimes and extremism.
The Rule of Law
In a recent report by the World Justice Project, Pakistan ranks 130th out of 139 nations in adherence to the rule of law. The scores of the report range from 0 to 1, with 1 denoting the strongest adherence to the rule of law. Pakistan merely scored 0.39 in this regard. It stood second last in South Asia in adherence to law and only Afghanistan is behind Pakistan in the region in this regard.
The report also assessed the criminal justice system and civil justice system of 139 countries along with some other areas. Pakistan’s civil justice system ranks 124th as per this report, as it scored merely 0.40 which is below average. The criminal justice system of the country scored 0.35 points and was ranked at 108th position.
The involvement of courts and judges in political matters and their political affiliations is also a key factor in maligning the justice system of Pakistan. Historically, the Maulvi Tamizuddin case is regarded as one of the darkest marks on the honor of the judiciary of the country. Since then, the courts have always been suspicious in the eyes of the citizens.
The courts and judiciary since then have been used by different civilian and military governments for achieving their political goals. The death sentence of the former Prime Minister of Pakistan Zulfiqar Ali Bhutto is thought to have been a judicial murder by many of those inside and outside the country. This is not the sole case in the country where the rulers have allegedly used the judiciary to victimize their opponents.
Martial Law & the Judiciary
The Martial Law imposed by the then General Pervaiz Musharraf was also validated by the judiciary of the country just like any other martial law or military coup in Pakistan and this fact still haunts the judiciary. Such decisions by the honorable judiciary of the country have tarnished the image of the judiciary so much that nowadays many citizens think the Judicial organ of the state is also under the influence of the so-called establishment.
The fact that one of the Judges, former Chief Justice of Pakistan Iftekhar Muhammad Chaudhry, who validated the coup of General Pervaiz Musharraf, started a movement in the country against the same Martial Law administrator when his personal interests were threatened has incorporated a feeling among the masses that some of the judges are biased and inclined towards achieving their personal ambitions.
The Model Town Case
Moreover, the long proceeding of some cases involving political parties and politicians such as the Model Town case is also one of the reasons that the judicial system of the country is losing trust among the people of Pakistan. The Sahiwal incident is also one of such famous incidents. It is due to the inefficacy of the criminal justice system of the country that the culprits mostly succeed to evade satisfactory punishment.
One thing that is necessary to mention here is the role of the police which, in many cases, does not conduct an effective investigation; they are also accused of writing the FIRs with technical loopholes that provide the leeway to culprits to elude the punishment that they deserve. Again, this is also due to the ineffective justice system of the country.
Unfortunately, the investigations in Pakistan are conducted by those who do not have any sort of modern training in this field. The only effective tool that the Pakistani police know is beating the accused which is unconstitutional and often results in admission of the crime by an innocent person just to flee the inhumane behavior of the police.
Modern investigative techniques must be introduced to the police department as it is one of the fundamental organs of the criminal justice system of the country. One can think that the speculations among the people of the country are merely a fallacy about the involvement of the judiciary in political matters and the external pressure on them, but the statements of several judges corroborate these assumptions.
A Partial Judiciary
Former Judge of Islamabad High Court Shaukat Aziz in his speech on July 2018 at the Rawalpindi Bar accused the premier intelligence agency of the country of manipulating judicial proceedings. His speech resulted in agitation among the top civilian and military leaders and also resulted in spurring the feeling of unreliability and biases of the judiciary of the country.
Many political parties of the country have also accused the judiciary of being partial. The decisions of the courts in some top-level cases have also resulted in the distrust of the public in the courts. The former president of the country General Musharraf was accused of committing high treason under Article 6 of the constitution of Pakistan, but the Supreme Court of Pakistan allowed him to travel abroad in 2016.
General Musharraf was sentenced to death in the year 2019, but since he was not present in the country, he could not be punished. Similarly, the former Prime Minister of Pakistan Nawaz Sharif is also under trial in Pakistan on the severe allegations of money laundering – for which the country is also graylisted by the FATF – but Lahore High Court allowed him to travel abroad for four weeks for a medical check-up and since then, he has not returned to the country and has been involved in giving statements against the military establishment of the country which are detrimental to the national interest of Pakistan.
After the release of Nawaz Sharif on medical grounds and his travel abroad, he and his daughter have been seen making anti-judiciary statements on different occasions. Furthermore, in the year 2019, an alleged call between the former Chief Minister of Punjab, Shahbaz Sharif, and Justice (Retd.) Qayyum surfaced in which the former Chief Minister was providing directions to the latter at the behest of the then PM Nawaz Sharif.
On the other hand, there are cases where people are found innocent and are acquitted by the courts after their deaths inside the prison. A person was released by the Supreme Court of Pakistan after one year of imprisonment for stealing coriander worth Rs 1000. Similarly, a man jailed for 5 days was released after 6 years of imprisonment because he immediately appealed against his imprisonment but to his bad luck, his trial and hearings continued for 6 long years.
Justice Delayed is Justice Denied
The recent case of Noor Muqaddam is also one of the cases where the court is taking too long to convict the accused despite the presence of evident evidence. Although one can say that the Noor Muqaddam case is taking time as the courts have to take all the necessary measures and fulfil all the legal requirements, the cases like the aforementioned cases are enough to show the inefficacy of the justice system of Pakistan.
Recently, ex-GB Chief Judge Rana Shamim has accused the former Chief Justice of Pakistan Saqib Nisar of ordering the judges for keeping the former PM Nawaz Sharif incarcerated till the 2018 polls. The allegations have been rebuked by the ex-CJP Saqib Nisar and might not be true, but in either case, it shows the involvement of Judges in political matters and their political biases as Justice Rana Shamim is assumed to be working on the agenda of Nawaz Sharif as they enjoy a close relation according to the son of the Rana Shamim.
PML(N) has a history of using the judiciary for serving their political agenda and does not leave any stone unturned to malign the courts of Pakistan. The video of the former judge of Accountability Court, Justice Arshad Malik, is one of the instances where the judiciary has been allegedly accused of being influenced by external forces or operating on political affiliations.
Similarly, the environment inside the jails is one of the major sources of exposing the criminals involved in small crimes to bigger crimes. This environment increases the chances of recidivism. The juvenile justice system of Pakistan must also be improved and updated according to the needs of the hour.
The failure of the judicial system of the country is the most fundamental reason behind the prevalence of callous punishments like Wani/Swara and other such practices by local jirgas in the society. Although the Federal Shariat Court has declared Swara un-Islamic, the courts must realize that such ailments could only be curbed by providing a parallel system to the people which they could trust.
Reformation of the Justice System of Pakistan
The criminal justice system of Pakistan, which consists of the judiciary, the police and LEAs, is full of flaws. The politicization of the police and judiciary is one of the key factors in damaging the criminal justice system of Pakistan. It is becoming a common notion in the country that approaching the LEAs and courts for the resolution of the conflicts among people is merely a wastage of time and money as the proceedings are too long and most of the time culprits are given the leeway on a technical basis.
This notion among the masses of the country is alarming and is detrimental for the integration and sovereignty, as it forces the people to look towards other non-state actors which could be damaging for the country as proved in the case of Talibanization of the KPK region.
Judiciary and other stakeholders must realize that justice delayed is justice denied, so they must provide instant, effective and cheap justice to the citizens of the country. The reports by the international institutions also suggest that Pakistan’s justice system should be reformed according to the demands of modern times.
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