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Time for Pakistan to raise its judicial standards! By Kashif Mirza

Byadmin

Mar 22, 2024

The writer is an

economist, anchor,

analyst and the

President of All

 Pakistan Private

Schools’ Federation

president@Pakistan

privateschools.com

Pakistan’s Prime Minister Shehbaz Sharif directed the special committee concerned to formulate a package of legal and constitutional reforms to bring in judicial reforms in Pakistan. Despite significant legislative and judicial reforms, the current legal system in Pakistan has failed to provide victims of crimes with prompt and equitable justice, and severe inadequacies continue to damage Pakistani citizens’ lives and has not been able to provide speedy and equitable justice to the victims of crime, and serious shortcomings continue to affect the lives of the people of Pakistan. “The people before you were destroyed because they used to inflict legal punishments on the poor and forgive the rich”—Hadith by Holy Prophet Muhammad (SAW), Sahih Bukhari, Volume 8, Book 81, Number 778. Pakistan’s judiciary, known until recently for judicial activism, was ranked among bottom performing countries at 130th out of 142th on the Rule of Law Index ranking 2023 by the WJP Report. Regionally, Pakistan ranks 5th out of 6 countries in South Asia. The region’s top performer is Nepal, ranked 71st out of 142 globally, followed by Sri Lanka and India. According to the Constitution of Islamic Republic of Pakistan, the judicial system operates independent of the Executive. The backlog of cases is especially detrimental to criminal cases since roughly two-thirds of jail inmates are under-trial prisoners, this inevitably contributes to overcrowding in prisons. In June 2023, it was revealed that 54,387 cases were pending before the Supreme Court, this number escalated to 57,766 cases in December. The number of overall pending cases to be disposed of by Pakistan’s judicial system was calculated to be 2,260,000.   However, past and recent events corroborate the perception that the establishment has a degree of influence over the Judiciary, which has been hand in glove in most extra-constitutional steps taken in the last 76 years. Our jurisprudence and legal system should have taken this path of light in its pursuit of dispensation of justice. The courts and honourable judges are entrusted with one of the most sacred responsibilities. With a stroke of the pen, they can impact the present and future of individuals as well as the state. Judiciary represents the only forum where people can seek justice. An effective justice system is vital to ensure rule of law, and provide a mechanism to address grievances arising from offences against individuals and society. The justice system should operate in a way that people can resolve their disputes peacefully and efficiently. Litmus tests for good judicial systems include accessibility, affordability and freedom from discrimination and influence of the powerful elite. Unfortunately, the current system in Pakistan fails on these yardsticks. Independence of the judiciary is important for the rule of law, subject to accountability, but the current legal system in Pakistan was brought about by British colonisation and is extremely difficult for locals to understand. Several problems and difficulties have tainted it for a long time. Political parties also have not taken any serious steps to reform the situation even after Benazir Bhutto and Mian Nawaz Sharif signed the Charter of Democracy, agreeing to bring about judicial reforms. Though they had agreed on various points, including the appointment of judges these were not incorporated in the 18th Amendment to the constitution. Also, no independent mechanism was provided for maintaining transparency and accountability in the judiciary. Although the Chief Justice of Pakistan Qazi Faez Isa assured the Pakistan Bar Council and the Supreme Court Bar Association that the Supreme Court will develop a comprehensive policy on the fixation of pending cases and setting up of benches that will outlast his tenure, but still awaiting. Devising a speedy justice system is a daunting challenge in Pakistan due to the large pendency, frivolous cases where filers go unpunished, frequent adjournments, administrative highhandedness forcing people to go to courts, outdated procedures and paucity of judges. The existing inefficient and outdated judicial system is exploited by money power that hires crafty lawyers to get justice, delayed, destroyed or maneuvered. 

It is the need of the hour to bring about sweeping reforms in criminal and civil laws and an administrative system to ensure justice is available to all segments of society and assure the people that all rank and file are equal in the eyes of the law.

The criminal justice system in Pakistan has a long history of poor governance, inflexibility, maladministration, corruption, lack of resources, and misuse of power. Accountability issues and a lack of cooperation between the investigation and prosecution wings in Pakistan’s criminal justice system allow accused persons to flee. The government and the legal profession are responsible for CRPC, PPC, and Qanoon-i-Shahadat reforms to improve efficiency and deliver justice. Although, a set of amendments introduced by the Federal Ministry for law and justice embodies an evolution from the archaic and outdated laws that were inherited by Pakistan from the colonial era. These amendments mark a progressive change towards protecting the rights of vulnerable groups in the society, at the root of all these amendments is consideration of human rights. Formerly, the then government proposed nearly 700 amendments pertaining to the criminal justice system, but still facing the challenges of the implementation in true spirit. In the proposed framework, the Ministry of Law and Justice suggested amendments to the Code of Criminal Procedure (CrPC), the Qanoon-i-Shahadat, 1984 (QSO), Pakistan Penal Code (PPC) and other relevant laws in a bid to improve efficiency and delivery of justice, and emphasized that these amendments will ensure justice is accessible to vulnerable sections of the society, particularly women, children, and those suffering from mental illnesses. Amendments introduced in procedural law should aim to dispense speedy justice by reducing the backlog of pending cases before the country’s judiciary. As reflected, the amendments also hope to sensitize law for vulnerable groups of society in addition to providing them with adequate safeguards. The amendments have also been proposed in consideration of changing times, this is incapsulated in provisions permitting the admissibility of evidence obtained via modern devices. Court intervention to deter absconders from justice has also been introduced to prevent miscarriages of justice. Fairly new concepts such as plea bargain should have also been made part of the law to discourage lengthy litigation. The reforms and amendments should be welcomed with enthusiasm since Courts in Pakistan are plagued with endless delays, lengthy rounds of litigation, and increasing financial burdens on citizens. Where difficulties hinder the timely conclusion of a trial, the High Court will require the Provincial or Federal Government to remove obstacles. Moreover, section 344 of CrPC must be implemented in true spirit, which contains the power to postpone or adjourn proceedings has also been amended to reflect that no criminal trial is to be adjourned for more than three days, unless in cases determined exceptional by the trial Court. It is hoped that these provisions would solve Pakistan’s long-standing problem of judicial overburden. Among the most salient features of the proposed amendments is the nine-month deadline for the completion of criminal trials. In case of failure of meeting this deadline, the trial Court should be required to provide an explanation and if accepted, fresh timelines will be provided by the High Court. As per international human rights instruments, detainees possess the right to have a trial within a reasonable time or to be released while the trial is pending. This is mainly because confining an accused person without trial interferes with their fundamental right to liberty. In an attempt to prevent unnecessary litigation, Section 250 of the CrPC has been amended to increase fines payable for false, frivolous, or vexatious accusations from twenty-five thousand rupees to five hundred thousand rupees. This hefty sum is proposed to reduce the judicial overburden by ensuring only necessary suits are instituted before Courts. Admissibility of evidence obtained through Modern Devices is inevitable. To further expedite justice, audio and video recordings of testimonies should have been made admissible in situations where it is not possible for a witness to attend Court in person. Where it is not possible to record evidence via audio and video recordings, the police officer must document reasons in writing. Amendments have also been made to Article 164 of the QSO to allow evidence that is obtained or becomes available through modern devices. Prior to this amendment, Article 164 reflected archaic provisions by restricting the admissibility of evidence obtained through modern devices and placing significant reliance on ocular testimonies which often proved to be unreliable or were simply not available. The amendment is especially helpful in the present era of technology since videos made on mobile phones and circulated on social media serve as the primary proof of a crime. A new chapter XXIIB has been inserted in the CrPC which introduces the concept of a plea bargain. This arrangement entails that an accused may file an application for a plea bargain at the trial Court, the Court upon receiving this notice shall issue notice to the public prosecutor in addition to the accused and the complainant. This arrangement prevents a lengthy trial, and it may allow the defendant to avoid a more serious penalty. The concept of plea bargain is fairly common in UK, USA and Canada. Existing provisions have been tweaked to provide for the stricter treatment of absconders from justice. Section 88 of CrPC which deals with attachment of property of a person absconding has been amended to empower the Court to block Computerized National Identity Cards (CNICs),  and other identity and travel documents  belonging to the proclaimed person. If a proclaimed offender appears before the Court, the Court shall order de-blocking of the aforementioned documents.

Constant interference in the Executive’s working by the Judiciary has paralysed the functional efficiency of government. Although the constitution is very clear about separation of powers in determining functions and boundaries of each organ of the state to avoid any conflict, some of the judges have been using suo motu powers in an irresponsible way as noted by the incumbent chief justice. This interference in Executive’s affairs seems to have started after the Lawyers’ Movement for the restoration of superior judiciary. Checks on use of such powers were weak and there was no certainity of accountability. Even the Supreme Judicial Council’s role raised questions about its credibility. Each organ of the state must operate within its boundaries. Independence of the judiciary is important for the rule of law, subject to accountability. The honourable judges of the superior courts should review their performance, conduct and the quality of justice being dispensed. Their appointments and removal should be through open-merit and public hearings policy. There should also be a supervisory board of retired judges of unimpechable repute to monitor the performance of each judge in terms of their conduct and judgments. True democracy and rule of law cannot be ensured without such effective reforms. We cannot restore people’s confidence in our judicial system without establishing strict accountability procedures. Civilised nations ensure that judges are not biased and uphold the Constitution. Ethical principles for judges, should disqualify themselves in any case in which they believe that a reasonable, fair-minded and informed person would have a reasoned suspicion of conflict between a judge’s interest and a judge’s duty. The global ethical principles about conduct and impartiality of judges are very clear. We need to take inspiration from such references. Our honourable judges need to ponder over the amortising public trust level and bring about reforms in their institutions. Justice is an indispensable pillar of the society. Judicial reforms should not be ignored. An independent and impartial judicial system is essential, in fact sine qua non, for the rule of law and democratic dispensation in any society. Therefore, the judges have to pass through a strict scrutiny process and all information about them is made public. Such scrutiny is conscpicuous by its absence it Pakistan. The United States, in a recent Judicial Conference, adopted various measures to enhance transparency. A report by Denmark Domstole, titled, A close look at the courts of Denmark, shows that in Demark between 2018 to 2020 on an average 800,000 cases per year were decided. The independence of Norway’s judicial system is exemplary as well. They have opted for the best prison reforms, following Sweden’s example, and offer free legal assistance in civil suits. However, the supervisory Judicial Committee, an independent disciplinary board, monitors the judges’ professional conduct. Similarly, Finland follows strict laws to ensure transparency and accountability in its judicial system. Chapter 40 of the Finnish Criminal Code, which deals with offences in the office, is equally applicable to judges. These included automating the release of judges’ financial disclosure reports, as well as an amended conflict screening policy that requires judges to sign a model conflict certification statement twice a year. Besides, the judicial conference requires consistency of approved model plan by each circuit council with the implementation of the mandatory conflict screening. It is time for Pakistan to raise its judicial standards. Our judicial system should uphold basic human rights. Pakistan is one of the countries where the people have paid a huge price for the independence of judiciary. It may be noted that although judicial systems in these countries are independent and public acceptance level is greater than in underdeveloped country, they believe in ensuring transparency and adopt strict accountability mechanisms for their judges. No wonder, people in these countries trust their judicial system more than any other public office. It is the need of the hour to bring about sweeping reforms in criminal and civil laws and an administrative system to ensure justice is available to all segments of society and assure the people that all rank and file are equal in the eyes of the law. The imminent need for these reforms and amendments can be judged from the fact that the justice system is being reformed in Pakistan’s history by attempting to counter structural issues that have hindered justice.

By admin

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