Sadia Iqbal is an MPhil candidate and a researcher interested in global geopolitical issues. She is also a gold medalist in the 2020 MA batch of Punjab University.
The Judicial System’s Role in Modern Governance and Accountability
Modern states are organized around three pillars of governance: the legislature (the organ that forms and amends laws), the judiciary (the organ that interprets and enforces laws), and the executive (the arm that implements laws). Whichever form of political system is adopted by a state, in some form, it would still have these three pillars as essential components of the governance structure. Although all of these are essential components of the modern state system, the judicial system, under the ideal of the “rule of law,” holds a certain primacy among them as it oversees the working of other pillars. The judicial system ensures a more orderly and stable state by establishing accountability within the country.
A Brief History of the Judicial System
The traces of the contemporary judicial system can be found in ancient times, going as far back as the origins of human society. Our analyses of human societies reveal that it was not only humans who evolved, but the laws that we practice today also evolved in tandem. Hence, an important realization is that the judicial system in any state is a product of the society and environment that it is borne from and governs, and there is no singular uniform recognized judicial order across all states.
Nonetheless, the evolution and basic concept of laws and treaties go back thousands of years, including various instances of agreements between the rulers of Lagash and Umma in Mesopotamia around 2100 BC, the code of Hammurabi (also known as the first set of written laws) in 1758 BC, Pax Romana, and Magna Carta. These treaties can be seen as landmark events for the development of rules and regulations. However, largely throughout history, the pre-Westphalian world was dominated by the constant struggle of waging war with the sole objective of expanding the empires of the “rulers” and increasing their power.
The collapse of the Roman Empire into principalities, nations, and independent cities was the real catalyst for the development of rules and regulations, with successive changes in the modern state system introducing the concept of “state sovereignty” in the Westphalian order, after which each state organized its legal structures accordingly.
The Hierarchy & Work Distribution Between Courts in Pakistan
The judicial system in Pakistan operates through a tiered structure of courts, each with distinct roles and responsibilities. It is crucial to grasp the various levels of courts and their functions within the legal framework. This system includes:
Supreme Court
The Supreme Court of Pakistan stands as the apex authority within the judicial system, possessing the highest appellate jurisdiction. It serves as the final recourse for appeals originating from lower courts.
High Courts
Following the Supreme Court in the hierarchy, the high courts in Pakistan are regarded as the second-highest judicial authority. These courts wield jurisdiction over a wide spectrum of matters, encompassing both criminal and civil cases.
Civil Courts
Civil courts are dedicated to handling a range of civil disputes. Their purview extends to resolving issues such as family matters, including divorce and custody battles, as well as property-related conflicts like foreclosure and eviction cases.
Criminal Courts
Criminal courts are tasked with the adjudication of criminal cases. In these courts, individuals accused of committing criminal offenses, such as rape, murder, physical assault, and robbery, face legal action initiated by the government.
Evolutionary History of the Lahore High Court
The judicial system we practice in Pakistan has reached us by going through various epochs, covering the experience of Hindu kingdoms, Muslim empires, and British colonial administration till the emergence of Pakistan in 1947. From 1801–1839, during the reign of Maharaja Ranjit Singh (ruler of Punjab), Lahore had two offices of military and a “sardar adalat” equipped with ill-trained judges and staff. Although the maharaja brought Punjab under one government, an organized judicial system with the concept of individual and universal rights was still waiting to come.
With the emergence of multiple territorial and political developments, on March 29, 1849, the then maharaja of the Punjab, Dalip Singh, relinquished the reign to his successor, the British East India Company. After the annexation of Punjab, Britain’s Lord John Lawrence ordered the establishment of the board of administration of Punjab and set up the offices of chief commissioner and judicial commissioner. By utilizing the provisions of the Indian Penal Code in 1861, customary law and a formal judicial setup were formed. Subsequently, seven tiers of courts were also established, each with a defining role and authority.
Over a period of time, it was realized that Punjab needed a chief court. Hence in 1866, a chief court was set up in Lahore, paving the way for further reforms by working on lower courts. This time period can be marked as the beginning of the formal justice system in Punjab. Through the increasing litigation and the long-yearned appeal of downtrodden masses for justice and the rule of law, it was realized that there should be a letter to the patent high court. Finally, the government approved the upgrade, and the Letters Patent was issued on 21 March 1919 (during World War I). The chief court was reformed into the Lahore High Court.
Role of Lahore High Court (LHC) in the Judicial System of Pakistan
In 1955, the Lahore High Court (constructed on the concept of secularism) got the principal seat in Punjab, ultimately leading to its separate status in 1973. The LHC is among the five high courts of Pakistan, 3 others being similarly based in the capital cities of the other three provinces and one high court for the capital territory, Islamabad.
A chief justice heads the Lahore High Court. The strength of each high court varies as the strength of the LHC stands at 60 judges. The selection of the high court chief justice is based on the constitution of Pakistan, under Article 175 (5) Clause (2). The criteria for the appointment of judges demands an experience of 10 years as an advocate of the high court, in the judicial office, or as a civil servant, including the experience of 3 years as a district judge. The Judicial Commission and Parliamentary Committee appoint the high court judges.
The Judicial Commission consists of the chief justice of the High Court as a member of the commission, four senior judges of the Supreme Court, one former chief justice or retired judge of the Supreme Court, provincial and federal ministers for law, a representative of the federal and provincial bar council and the attorney general of Pakistan. The Parliamentary Committee consists of National Assembly and Senate members. However, for appointing the chief justice of the high court, the present chief justice of said high court, who is a member of the commission, is excluded from the appointment as there can be a conflict of interest.
After scrutinizing the names, the Judicial Commission forwards the list to the Parliamentary Committee to review the recommendation. After the approval from the committee, it is forwarded to the president through the prime minister. The High Court can exercise its jurisdiction to subordinated courts in all criminal and civil matters.
LHC: Recent Landmark Decisions
The Lahore High Court holds the legacy of being one of the oldest institutions. To see its effective role in contemporary times when Pakistan is undergoing political and social upheaval, we will look at some of the significant recent decisions of the court as examples.
Legal Action on Climate Change
Lahore High Court became the first court to implement, enforce, and broadly define the importance and ambit of the climate change legislation of Pakistan. It enforced Pakistan’s climate change policy of 2012 and subsequent policy (2014-2030) in the famous case “Asghar Leghari v. Federation of Pakistan, 2018 CLD 424.” The court incorporated human rights into the understanding of climate change policy by obliging the government to realize its duties in securing the well-being of the citizens against the adverse effects of climate change. This was a significant ideological step in reshaping the loss and damage obligations of the government in this important regard.
Strike Down Sedition Law
Pakistan’s sedition law states, “Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Federal or Provincial Government established by law shall be punished with imprisonment for life to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”
In March 2023, Justice Shahid Karim of the Lahore High Court annulled the sedition law, declaring it “unconstitutional.” The court issued an order on the petition of lawyers and many other citizens that showed the broad-brush approach this law has used and the opportunity that provides for its misuse. The petition was filed against the ongoing situation in Pakistan in which the government/politicians used this law against their rivals. The sedition law was enacted in section 124-A of the Pakistan Penal Code, curbing the free right to speech and expression.
It was argued in the petition that a 150-year-old law, established during the colonial era imposed illegitimate restrictions and limitations. Many journalists, activists, and politicians have been charged and suffered under the inconsistent law. This instance can be marked as another landmark case of the Lahore High Court, providing people the right to speech and expression.
Two-Finger Test (TFT)
Pakistani human rights activists had petitioned against the two-finger test (TFT) which has been a pervasive practice in South Asian countries since the colonial era. It is a virginity test that is conducted by inserting two fingers into a woman’s genitalia to test its laxity. On 4th January 2021, Judge Ayesha A. Malik in Lahore High Court declared the test “illegitimate and unconstitutional.” The Lahore High Court announced this decision in response to the Lahore motorway gang rape, an incident which incurred people’s wrath and resulted in nationwide protests.
The president of Pakistan, Dr. Arif Alvi, had approved the Anti-Rape Ordinance 2020. It is important to note that only the Lahore High Court, of all the high courts in Pakistan, has outlawed the TFT and its ruling is being applied in Punjab province. On the petition of many women activists, the Lahore High Court judge, Ayesha A. Malik, raised serious concerns and outlawed the virginity test by stating it was “sheer humiliation of the victim.” She directed the Punjab government to provide a detailed medico-legal protocol and the standard operating procedure according to the established international practices.
She also stated that TFT offends the dignity of the victim. It can be seen as a landmark achievement of the Lahore High Court. This decision is being applauded domestically and internationally as the UN and WHO are campaigning to abolish this humiliating practice in the countries.
Reduces Super Tax
In an unusual development, the Lahore High Court reduced the approved tax on industries in Punjab on 28 June 2023, in a landmark decision. It reduced the “super tax” on large corporations from 10 percent to 4 percent, declaring it discriminatory. This tax was imposed on 13 large industries in 2022 but was held as discriminatory by these corporations.
Challenges & Controversies Involving the Lahore High Court
Complaints against the LHC largely cover the slow disposal of cases and occasional political bias in the resolution of Punjab government cases. Regarding the former, it was reported by the Business Recorder on 1 January 2023 that more than 3,50,000 cases were pending in LHC by the end of 2021. The situation is exacerbated by 18 vacant judge seats and only 42 appointments made on the 60 available seats.
There was widespread criticism of several decisions of the court in recent months regarding the resumption or suspension of the Punjab Assembly and also political pardons to the PML-N leadership.
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