Is our judiciary independent and delivering?

In any country, an efficient and competent judiciary is crucial to democracy, governance, social security and economic growth, an independent judiciary ensures that easy and cheap justice is accessible for all citizens. The civil and political rights have to be protected not only from the excesses of state institutions and functionaries but to also secure individuals from powerful groups that resort to violence and unfair means for their vested interests. The main obligation of justice system is to protect the weak against injustice and oppression at the hands of the high and the mighty.
A well-functioning judiciary has influence far beyond the dispensation of justice. Unfortunately in Pakistan’s case, performance of our judiciary is questionable!! In today’s scenario instead of protecting the weak, the law itself becomes an instrument of tyranny and oppression!! According to the 2017-18 World Justice Project Rule of Law Index, which measures whether ordinary people can resolve their grievances through the civil justice system, Pakistan’s score is the worst in the region, or 6th out of 6, and globally it’s 105th out of 113.
Similarly, as per the World Justice Project Report 2020, Pakistan’s civil justice system measure is 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 a 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 were rated as 0.46.
World Justice Project (WJP) surveys conducted in five urban areas in Pakistan to capture data on the experiences and perceptions of ordinary citizens on various themes related to government accountability, bribery and corruption, crime, and access to justice.
In order to explore justice issues in greater depth, the WJP also conducted a separate Justice Sector Survey. WJP briefs touch upon issues of accountability, corruption, fundamental freedoms, criminal justice, and civil justice, as well as views on women, internally displaced people, and refugees. Together, these briefs give an overview of rule of law and the justice system in Pakistan.
Key Findings of this survey regarding judicial system says:
Criminal Justice: Incompetence of criminal investigators was cited as the most serious problem facing criminal investigative services in Pakistan, while inadequate resources were cited as their most serious problem facing criminal courts. Perceptions of police corruption and respect for suspects’ rights have improved in recent years.
Access to Civil Justice: A large majority of those surveyed (82%) experienced a legal problem in the last two years, with problems relating to community and natural resources, consumer disputes, and public services being the most common. Of those, only 14% turned to an authority or third party to adjudicate, mediate, or help resolve the problem. Nearly half reported experiencing a hardship as a result of their legal problem, with stress related illnesses being the most common hardship reported.
Recent US State Department has portrayed the judiciary of Pakistan in an extremely negative manner and stated that theoretically the country’s judicial system operates independently of the executive branch but the reality is quite different.
In its latest report, ‘2021 Investment Climate Statements: Pakistan’, the State Department says, “Pakistan’s judiciary is influenced by the government and other stakeholders. The lower judiciary is influenced by the executive branch and seen as lacking competence and fairness. It currently faces a significant backlog of unresolved cases.” According to the report, there are doubts concerning the competence, fairness, and reliability of Pakistan’s judicial system. Released recently, the report says, “Theoretically, Pakistan’s judicial system operates independently of the executive branch. However, the reality is different, as the establishment wields significant influence over the judicial branch. However, fear of contempt of court proceedings inhibit businesses and the public generally from reporting on perceived weaknesses of the judicial process.”
Pakistan ranked 124 out of 180 countries on Transparency International’s 2020 Corruption Perceptions Index, the report noted; adding corruption persists due to the lack of accountability and enforcement of penalties, followed by the lack of merit-based promotions and relatively low salaries.
According to the report, bribes are classified as criminal acts under the Pakistani legal code and are punishable by law but are widely believed to be given across all levels of government. “Although the higher courts are widely viewed as more credible, lower courts are often considered corrupt, inefficient, and subject to pressure from prominent wealthy, religious, political figures and the establishment. Political involvement in judicial appointments increases the government’s influence over the court system,” it says.
Though the Foreign Office Spokesman Zahid Hafeez Chaudhry has rejected the Investment Climate Statements, saying that the judiciary in Pakistan was independent and the courts were functioning in accordance with the Constitution and laws of the country. He said Pakistan being a vibrant democracy, the government firmly believed in the separation of powers between the executive, legislative and judicial branches of the state.
However, this is the fact that over the period of time instead of reforming the justice system, the judiciary has lost its effectiveness due to unjustified delays and wrongdoers exploiting the loopholes to serve their interests using tools such as stay orders, causing limited access to a large poor segment of the society. More than one-third of Pakistanis consider the court systems in Pakistan a major obstacle and the quality of courts as poor which is higher than the average of 14 percent in South Asia, with even Bangladesh in better condition, according to the World Bank Enterprise Survey.
Besides after 2008 judicial movement, courts in Pakistan are normally blamed for judicial activism which results in deviations from the assigned mandate defined under the law. 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. It is commonly observed that judges are generally compromised owing to their political affiliation, which is unbecoming of a judge. So much so that 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. In lower courts, commonly judges are intellectually compromised also. Judicial Magistrates are being appointed after a certain passing of exam and criterion. However, their lack of experience is well-manifested while running a case where senior lawyers can easily twists or manipulate the courts.
Giving expert opinion on present Judicial and law system and its fault lines, senior advocate and renowned legal activists, Altaf Khoso said people should have confidence in the judicial system, but litigants are unfortunately losing faith in the system because it is not working properly due to certain flaws. It is high time that the government and superior judiciary must reform our existing law enterprise so as to deliver quick and speedy justice. Otherwise, people will not trust the system as it is long, cumbersome and difficult to decide cases. These reforms will devise a roadmap for prompt implementation of reforms in the criminal justice system, police culture, registration of cases, investigation and prison system.
Senior lawyer Altaf Hussain Khoso is the Chairman of Pakistan Legal United Society (PLUS) and Advocate High court. Pakistan Legal United Society (PLUS) is a non-governmental organization established with the aim of legal empowerment and access to justice for all underserved segments of the society. Altaf Khoso is a Qualified Trainer for Paralegal Trainings by OSI Trainers 2015, and also a Qualified Trainer for Paralegal Trainings by 10th GAJE from Bandung, Indonesia 2019. Through his career, he has worked as an Executive Director at Syed Sami Shah Law Firm. He is the litigation Manager of committee for the welfare of prisoner’s in all over Sindh. He also worked as a Legal trainer and a legal advisor.
Discussing the structural and administrative issues like the constitution of benches, the elevation of judges and appointment of top judiciary, Altaf Khoso says “the judiciary’s independence and credibility should not be compromised. It is important that bench-and-bar relations should not get sour and in dispensation of justice both should have their positive share. Therefore before all appointment in top courts other meritorious considerations such as performance in high court, independence, commitment to democracy and fundamental rights, temperament, capacity, diligence, medical fitness and willingness to deliver, should serve as prerequisite. Transparency requires that objective criteria be evolved for appointments in high courts as well as Supreme Court leaving no room for complaints of nepotism or favouritism. Apex courts must engage with bars to constitute objective criteria for judges’ appointment.”
Responding to query of legal awareness among masses, Altaf Khoso said people remain silent over the violations of their fundamental’s rights as they were not familiar with the law which guarantees protection of their rights such the life, liberty, peace, ensuring fundamental rights, protecting rights of minorities, promoting social justice. There was a great need to educate people about legal rights and procedure through media.
When asked what is the sweet and short recipe to put our law system on track, Altaf Khoso says “There are certain administrative and structural decision which may reduce burden on higher courts and the litigants. Like an establishment of judicial complex, where all courts like NAB, ATC can work under one premise. High courts and supreme courts have backlog of cases which are mainly of civil nature pertaining to property or land. High courts may shift property and land cases of up to 10 crores to lower courts, since there is no burden on lower courts of pending cases owing to large number of civil and family courts JMs, ADJs.” Besides it, MIT needs serious overhauling. Member inspection Team is already over-whelmed and burdened, a commission can be formed for the accountability of lower courts. Criterion of promoting Judicial magistrate should be based on their overall performance in running a case including their conduct, adopting procedure during the trial, instead of prompting them on basis on units given on acquittal or conviction”, the veteran advocate asserted.