The post explains “Pakistan Judicial System – Its Structure, Role and Problems. Structure of Judiciary in Pakistan. The Role of Judiciary in Politics of Pakistan. Pakistan judicial system. Role of Judiciary in Democracy in Pakistan. Flaws in Pakistan Judicial System – The Broken Justice System. Pakistan judicial system. Way Forward To The Problems of Judicial System of Pakistan. Pakistan Judicial System – Its Structure, Role and Problems.”
Pakistan Judicial System – Its Structure, Role and Problems
Judiciary is one of the three basic pillars of state. The other two pillars are Legislature and Executive. The executive runs the affairs of a state, whereas the legislature frames laws in accordance with the established norms of a constitution. The judiciary, however, exercises control over the arbitrary authority of both the executive and the legislature. Not only this, among many other roles of judiciary one of the basic is to ensure timely justice. There is a famous saying of the Martin Luther King Junior
Justice delayed is justice denied
Since the establishment of Pakistan, judiciary has always played a controversial role, not only in the development of democracy in the country but also in the provision of justice. Due to this reason The World Justice Project’s (WJP) Rule of Law Index 2021 report the judiciary of Pakistan ranks 130th out of 139 nations in world.
Structure of Judiciary in Pakistan
The Judicial System of Pakistan broadly may be divided into three classes, i.e. tricotomy of Judicial System.
(a) Superior judiciary comprising of Supreme Court, Federal Shariat Court and High Courts.
(b) District judiciary comprising of Civil and Criminal Courts created by acts working under the supervision and control of the respective High Courts under Article 203 of the Constitution.
(c) The Administrative Courts, Tribunal and Special Courts created under different laws.
The Role of Judiciary in Politics of Pakistan
In the standard model of the modern western liberal democracy, the role of the judiciary is that of a watch dog. It interprets and applies the law, in a manner which is impartial and unbiased. However, when the very constitutional system which creates and empowers the courts is facing a serious threat to its existence, the position of the courts undergoes a significant change. Now, not merely must the courts impartially interpret and apply the law, but they must also decide fundamental questions of legitimacy and constitutionality.
Unfortunately, in politics of Pakistan the role of judiciary has always been remained not more than that of a puppet and facilitator of dictatorship. It has always provided patronage to the corrupt politicians and army personals in the country.
Role of Judiciary in Democracy in Pakistan
In Pakistan democracy has become a dream. In the seventy five (75) years of its existence, the country has remained more than thirty years under military dictatorship. Judiciary has always played a vital role in the success of military coup in the country. I t has always provided legal ground to the military takeover.
It justified Zia and Musharaf coup under the doctrine of necessity. Many senior politicians of the country, particularly those belonging to the Pakistan Tehrek i Insaf believed that the country is under the indirect rule of military dictatorship. They claimed that the country is under tight grip of military and not a single institution of the country including Judiciary is working freely under the constitution of Pakistan.
Some of the most controversial verdicts of SCP
Some of the most controversial verdicts of the Supreme Court of Pakistan, for which the superior court of the country is criticized, are listed below.
Maulvi Tamizuddin Khan Case (1955): In Molvi Tamizuddin Khan case, the Supreme Court headed by Chief Justice Mohammad Munir backed Governor General Ghulam Mohammad’s action to dissolve the first Constitutional Assembly. This judgement of Supreme Court is always strongly criticized by all democratic parties of Pakistan and is referred as a root cause of unstable democracy in Pakistan.
Begum Nusrat Bhutto VS Chief of The Army Staff: On November 10, 1977 the Supreme Court unanimously validated the imposition of martial law, under the doctrine of necessity. The law of necessity recognized and upheld by Pakistan’s highest judicial body has proved an honorable protection for military adventure in civil government. It was the illegal action called law of necessity.
Provincial Constitution Order 2007: On 3 November 2007, Chief of the Army Staff declared emergency in Pakistan. The emergency suspended the constitution. A seven panel bench issued a unanimous two-page order declaring the action illegal.
On 24 November 2007, a seven panel bench of newly constituted Supreme Court, after the imposition of PCO, validated the imposition of emergency and the promulgation of the Provisional Constitution Order issued by the Chief of the Army Staff.
Judge Dilawar Verdict in Toshakhana Case: On Aug 5, The Islamabad High Court (IHC) Judge Dilawar sentenced Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan to three years in jail and a fine of Rs 100,000 in the Toshakhana criminal case filed by the Election Commission of Pakistan (ECP). The verdict was highly criticized and challenged on the basis of urgency and not recording the statements of witnesses.
Iftikhar Muhammad Chaudhry Case
Justice Iftikhar Muhammad Chaudhry was called on by the President at his Army residence in Rawalpindi on Friday, 9 March 2007. There, he was asked to explain his position on a list of charges brought against him from several quarters. He was then asked to resign, something which Justice Chaudhry refused to do and was henceforth detained for about five hours while arrangements were made elsewhere in Islamabad for speedy appointment of the Acting-Chief Justice.
The president’s orders came in the afternoon, and within minutes took the country by storm. Many in the legal fraternity were shocked by the way the country’s top adjudicator had been treated. Within hours, public in general and lawyers specifically rallied around him.
On 12 March 2007, lawyers across Pakistan began boycotting all court procedures in protest against the suspension. On 20 July 2007, the 13 judge panel from Supreme Court of Pakistan hearing on the case unanimously reinstated the Chief Justice. Iftikhar resumed his work at office on 23 July 2007.
Many analysts and lawyers believe that after assuming the charge, Iftikhar Muhammad Chaudhry decisions as the Chief Justice of Pakistan were populistic. This raised many objections on the credibility of his verdicts.
Pakistan Lawyers Movement/Bar councils
Lawyers who are believed the protectors and guard of the constitution often seemed divided on matters of constitution and politics. This gives a chance to the violators to exploit the constitution of the country. The lawyers due to their internal rift and pursue of political gains, couldn’t take any concrete step on the violations of PDM government in not holding of midterms election in the province of Punjab and Khyber Pakhtunkhwa despite court strict orders.
Flaws in Pakistan Judicial System – The Broken Justice System
The judiciary of Pakistan seems helpless and powerless in the implementation of some of their orders. This is mainly because one institution of the country has become so powerful that it has corrupted all other institutions. If even the court orders something but the army is not happy with the decision, not a single institution in the country can take action on the order.
In Pakistan, unfortunately opting the course of LLB seems the last option for majority of the students. When they couldn’t secure set in any other program in college or university, they go for LLB degree. Due to this reason a large number of incompetent students join the field that are far less law abiding than common people in the country. Though the Pakistan Tehreek i Insaf (PTI) government under the leadership of Imran Khan has took some steps in this regard but still more work needs to be done to let only the competent aspirants join the field.
Unlike any other institution of Pakistan, nepotism has taken the institution of Judiciary entirely in the country. We can see this menace not only in the appointment of judges to superior courts but also in the decision making process by the honorable judges. Currently the Chief Justice of Pakistan, Qazi Faez Issa is believed the favorite judge of Pakistan Muslim League (N) and that is why supporters of Imran Khan criticized him. According to Irshad Bhatti, the famous Pakistani journalist, Nawaz Shreef has appointed a large number of his favorite judges at both High Court and Supreme Court level who can benefit him for next twenty to thirty years in all cases against him. If this is true then it is worrying some condition for the country.
Judiciary should be the most independent and iconic institution in our country but unfortunately this is not the case. Continue political influence and pressurization by the corrupt army generals has made it one of the most weak and controversial institution in the country. Our judiciary seemed corrupt at its very core and there seems no immediate solution to it.
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
Another major flaw in the Pakistan judicial system is backlogging and delay in the cases. Due to delayed justice and long proceedings many people have lost faith in the judicial system of Pakistan. Citizens in the country want a swift, speedy and cheap justice system but it has now become a dream in Pakistan.
In major cases particularly those of national interest level we have seen the court helpless in the implementation of its orders. Take for example the case of holding of midterm elections in Punjab and Khyber Pakhtunkhwa, the PDM government bluntly refused to follow court order.
Way Forward To The Problems of Judicial System of Pakistan
Pakistan’s higher judiciary has repeatedly sanctioned military interventions and constitutional amendments that have fundamentally altered the legal and political system and undermined judicial independence. If democratic functioning is to be truly restored, constitutional and legal changes made under military rule must be reversed. The government must respect judicial independence and the judiciary must carry out its duty to protect and preserve the constitution.
The judicial system of Pakistan is outdated. Unnecessary delays and exploitation of the justice system by the powerful has vanished common people trust in the system. There should be no delays in the court procedure and cases are to be dealt on merit bases.
One of the easiest ways to bring our judicial system on right track is to establish the principles of impartiality and fairness in court procedure. This will automatically reset and adjust rest of the system.
Appointment of the judges particularly to High Courts and Supreme Court should be on merit bases. A proper system of eligibility and qualification checking should be setup to diminish every chance of political interference in the said process.
Another important step should be the provision of swift justice to common people. For the quick justice system formulization of appropriate legislation by the parliament is required.
And last but not the least a proper system for the rapid and transparent trial system should be established.
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.
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