Izza Rizvi
“The moral arc of the universe is long, but it bends toward justice”[1]. (Theodore Parker)
Rule of law demands habitual obedience to the law and what the law seeks to promote is Justice. When there is a lack of legislation for curbing social evils, or even if there is, but the same is ineffective and inefficient, then justice cannot be obtained. When the justice system is synonymous with ´Might is Right ‘or when the legal process is lengthy, unavailable, or full of interruptions. Then justice cannot be obtained. To maintain rule of law in a society laws must be in conformity with the needs of society. Outdated or irrelevant laws must be repealed and laws should be in accordance with modern-day norms.
Among all the three main organs of the State, under the constitution of 1973, an efficient judiciary is crucial to democracy, governance, security, and economic growth. An independent judiciary certifies that the Rule of Law is available to all citizens. But, unfortunately, the judiciary in Pakistan is full of flaws, and People in Pakistan are also exhausted with such a system and therefore are reluctant to avail court remedies.
This article will attempt to highlight the reasons for people´s mistrust and non-satisfaction with the prevailing judicial system in Pakistan. For this purpose, the essay will present the standing of Pakistan’s justice sector (scrutinized under international justice indicators), what are the deficiencies in our judicial system? What legal, economic, social, cultural, and political hurdles are causing a trust deficit among the people? This essay will also attempt to examine the measures that can be taken to improve the judicial system in Pakistan and this will be done by analysing the judicial system of the world’s top-ranked states.
The World Justice Project (WJP) measures rule of law performance in 128 countries is based on eight factors, which include; Constraints on Government Powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice, and Criminal Justice.[2]
Pakistan’s overall ranking in the rule of law index (RLI) for the year 2020 has dropped by one position as compared to the previous year (i.e. in 2019 Pakistan’s ranking was 117 and its total score was 0.39). In 2020 Pakistan secured 0.39 scores and is in 120th position. In the South Asia region, Pakistan is only ahead of Afghanistan.[3]
The Judicial system can be scrutinized on the basis; that whether it is accessible, affordable, effectively free of discrimination, free of corruption, free of improper government influence, free from unreasonable delays, timely adjudicated, and in civil justice whether ADR (Alternative Dispute Resolution) mechanisms are accessible, impartial and effective, and in criminal justice whether criminal investigation and correctional justice system is effective and whether it reduced criminal behaviour in society and whether due process of law is being followed and right of accused has been safeguarded.[4]
Pakistan remained in the 118th position in the factor ranking of civil justice for 2020. In 2019 the country was on the same position. While in the factor ranking of criminal justice for the year 2020 Pakistan has fallen six-position down to 98th place, the country was ranked on 92nd position in 2019.[5]
Most people in Pakistan are unwilling to bring their legal matters before the courts; this is due to the number of defects in the existing judicial system. Following are some of the social, legal, economic and political obstacles to obtaining justice.
Systematic Corruption has long been the biggest problem in Pakistan like malignant cancer. Due to such deep-rooted traditions of corruption, Pakistan dropped four spots over last year and has ranked 124 out of 180 countries on the 2020 corruption perception index.
The Law Reform Commissions formed by the governments of Pakistan revealed:
“Police station is the main centre of corrupt activities… A case is not registered or an F.I.R. is not accepted nor is sufficient interest shown in the investigation unless the complainant gives a handsome gratification to the Officer-in-Charge of the police stations.”[6]
¨Corruption among the subordinate officials and process-serving staff as well as among the investigating staff is rampant with the result that no action is taken by them unless the parties involved approach them and tender some extra-legal consideration…, ‘papers move only on golden or silver wheels.”[7]
The Culture of Nepotism is another critical issue, parties taking advantage of law houses of relatives of serving judges. While, in India in terms of Rule 6 of The Advocate Act, 1961, ¨No relatives of a judge can practice where the judge is serving¨. Such nepotism also prevails at the time of appointment and extension of judges by turning a blind eye to the ´competence and merit’. One of such incident which was highly criticized by Punjab Bar Association is the approval of names for the appointment of additional judges of the Lahore High Court for a period of 1 year by the JCP ( judicial Council of Pakistan), which was presided by the Supreme Court Chief Justice Iftikhar Muhamamd Chaudhary. It was alleged that candidates with barely any standing at the bar but with strong links with sitting judges have been recommended for elevation.[8]
Another recent example of the same is the elevation of Justice Mazhar Ali as the judge of the Supreme Court and the placement of Ahmed Ali Sheikh, Chief Justice Sindh High Court, on an ad-hoc basis as judge of the Supreme Court, thus, putting an end to the seniority principle.
Another barrier is people’s trust towards those systems which are running parallel to formal judiciary like panchayat, Jirga, etc. This is because such informal courts take less time and are more conveniently located and people are more familiar to understand the nature of the work of informal courts. In contrast, formal courts are located in remote areas and there are too many complexities in court procedures which lead people to renounce going to court. A World Bank ‘Enterprise Survey’ reported that 38 percent of Pakistani firms find the court system a major constraint in doing business in comparison to 14 percent in South Asia as a whole.
Lord Woolf (who worked to introduce reforms that may curtail the cost and time courts spent on civil proceedings) identified in his report that the three critical issues confronted by the civil justice system at the time were “costs, delays, and complexity”.
The World Bank report published in 2018 said that “on average, it takes 1,071 days to settle a commercial dispute in court. Then the case can go to the appeal stage first in a High Court and then in the Supreme Court. It is not unusual for a case to take more than a dozen years to be decided. This is one of the main reasons why Pakistan ranks 156th on the World Bank’s Enforcing Contracts Index”.[9]
An example of the acquittal of the Mazhar Hussain Case exhibits the dark side of our delayed justice system. The acquittal in 2016 of Mazhar Hussain, who had already died in prison two years[10] earlier and it took around 12 years from the day he was initially awarded the death penalty.
According to the report (during the period from 1-1-2021 to 31-5-2021) of the Law and Justice Commission of Pakistan the statement of cases Pending, Institution, and Disposal in the Superior Courts and District Judiciary of Pakistan, out of 3852796 cases pending before the courts 1705983 have been disposed of, which is only 44% of the total cases.[11]
The most frequent cause of such delay is ‘adjournment’; which is due to the nonappearance of witnesses or the counsels of parties or sometimes it is because judges are on leave, in such situations the matter is to be heard by an alternate judge. However, this process is fraught with confusion, and many times results in an adjournment by the alternate judge. One of the main issues leading to slow case disposal is the shortage of judges and lack of judicial resources.[12]
Another mishap with our social system is the high illiteracy rate. As a result of which people are unaware and therefore unable to recognize their problem to be legal in nature. According to the WJP report, 82% of people experienced a legal problem in the past two years, out of which 66% of people were aware that where to get advice but only 27% of people got access to help.[13]
People in Pakistan also avoid reaching out to the courts due to their weak social and economic positions. There are several traditional bars in the name of so-called modesty, reputation, family honour, and the concept that private matters must be resolved privately. It happens especially when the matter is related to females. Misogynist and biased attitudes of state institutions such as police, judiciary, and society at large mostly blame the victims. Many cases go unreported, and many of the reported cases go unprosecuted. In the 2019 Women, Peace and Security Index, Pakistan ranked 164 out of 167 countries, only above Syria, Afghanistan, and Yemen, and the worst among nine South Asian countries.
According to the World Justice Project Report 2019, 82% of people faced legal problems in Pakistan, 27% got access to help and 23% of matters were resolved, this is due to the health, financial, and interpersonal hardships they faced.
The Unending Cycle of poverty and an expensive justice system urges people to quit their struggles for justice. Another side of the system is full of the arbitrariness of lawyers as they charge high fees, this is also due to the low income of lawyers, or if they take small amounts then they deliberately prolong the case to collect a small amount for each hearing. Huge economic misbalance between the parties also creates hindrances, Shahzeb Murder Case is a clear example.
A psychological barrier among the people is ´yawning cynicism´ on the true motives of judicial reforms. For instance, Chief Justice of Pakistan Supreme Court Asif Saeed Khosa’s concept of model courts has been called a “silent revolution” in the judicial history of the country by legal experts. As the criminal trials, especially of murder and narcotics, are disposed of within days instead of years. But, surprisingly, the speedy trials by model courts have come under criticism from the lawyers’ fraternity, who labelled them as “justice rushed, justice crushed”.[14] In the same manner, steps taken for the issuance of succession certificates by NADRA and police reforms in Sindh and Islamabad have also been highly criticized by the lawyers.
The deplorable side of our judiciary is that our legal system is not for curtailing the social evils. The Justice System is flooded with legal practitioners who are experts in ´circumventing’ the law which means ¨there is compliance with the letters of the law not with the spirit and purpose of law¨. There is also a lack of legislation concerning the modern-day requirements, and outdated laws with poor evidentiary standards cause a trust deficit among the public, towards the judiciary. The case in point is the ¨Mukhtara Mai case¨ wherein in 2005, the Lahore High Court cited “insufficient evidence” and subsequently acquitted 5 out of the 6 convicted rapists, while commuting the punishment of the sixth man to life imprisonment. Mai and the government appealed this decision, leading the Supreme Court of Pakistan to suspend the acquittal and hold hearings for an appeal,15 In 2011, the Supreme Court also acquitted the accused.
Another example is of Malalaś Case when the accused were acquitted on benefits of doubt or lack of evidence The Regional Deputy Police Chief, Azad Khan, was quoted in the “New York Times” saying that the “men were released for lack of evidence” chalking the verdict up to a failure of Pakistan’s Judicial system (8 out of 10 accused men in ´2012 attack on Malala were acquitted).
The Human Rights Watch Report mentioned the reasons why people have no hope of getting justice in this crooked system and mentioned the police abuses and the culture of impunity that exists in Pakistan. The report mentioned custodial torture, extrajudicial executions, and other serious human rights violations including the refusal to register complaints (known as First Information Reports or FIRs), by the police in Pakistan.[15]
Culture of Impunity; Police involved in serious abuses are rarely brought to justice. For example, Syed Alam was killed by the police in 2015 to escape from the accountability for corruption. According to his father, Umar Daraz. Alam was initially arrested on the request of some people that owed him money and wanted to avoid repayment. Daraz said that the police demanded bribes to release Alam and badly beat him in custody. Although the family borrowed and sold jewelry to pay the police, the police still filed false charges against them. Once Alam was released on bail, the family filed a complaint against the police before the anti-corruption department, after which the officers named in the complaint threatened the family. Daraz told Human Rights Watch: “The police officers started harassing and threatening me, demanding to take back the complaint, otherwise they would kill me and my son.” Shortly thereafter, Alam disappeared. After four years, on November 21, 2015, his body was recovered from a garbage dump with clear signs of torture all over his body.
The crucial stumbling block to developing trust among people toward the judiciary is the politicization and despotism of the judiciary. Judge Arshad Malik’s story exposed the immoral state of our judiciary and its apparent vulnerability to manipulation. In his statement, the judge confesses to being blackmailed and claims that the Sharif family tried to bribe him. Iftikhar Chaudry lawyer’s movement and Saqib Nisarś interference in policy-making matters are also examples of such politicization.
Bench and Barś political tussle also created the worst image of the judiciary in the eyes of the public. It can be seen when Chief Justice of Lahore High Court Mansoor Ali Shah focused on the internal reformation of the judiciary by making the appointment of judges more efficient and less prone to nepotism that should be a catalyst for other courts in Pakistan. For this purpose, he demoted 30 judges from the bench who were accused of incompetence and introduced a transparent scrutinized process for appointment.[16] Surprisingly, Lahore Bar Council defended the accused and demanded Chief Justice Shahś resign.[17]
Last but not the least, the security of lawyers, judges, and witnesses is also endangered especially when they are involved in litigations against terrorist, extremist or influential groups. This creates hurdles in the way for victims to seek legal remedy through court. An explicit example of such a security threat is the ´Quetta Massacre´ i.e the Murder of Bilal Kasi, president of Baluchistan Bar council, by Jamat ul Ahrar, in August 2016. When his body was sent to a local hospital a suicide bomber targeted all lawyers, who had come to the hospital, regardless of what kind of cases they handled.[18] The same situation happens when the case is related to minority rights or alleged blasphemers.
Therefore, it is a need of the hour to revive our judicial system through people-friendly reforms in a way that it not only be available, accessible, and efficient but also furnish tailor-made reforms for specific groups of society. To conclude, we will shed light on some of the unique and ideal reforms adopted by the judiciaries of those states which stood on top (Denmark, Norway, Finland, and Netherland) under the WJP Rule of Law Index rankings in 2020.
The Netherland’s ´Secondary Sites System works on the principle of ´access to justice´ by establishing secondary locations in each court district and each court of appeal. In these local sites a wide range of cases are dealt with. The Parliament managed to ensure most common cases could be handled in local sites easily accessible to citizens. This is very similar to the French system of ‘audiences foraines´ (public hearing) which aims at resolving disputes related to everyday life, including family matters.[19]
More people in Denmark mistrust their Parliament but most of them trust their judicial system. They continue to innovate their judiciary to better meet its citizenś needs. Since 2009, Denmark has adopted several steps of the e-justice system. For instance, land registration has become fully digitalized and automatic, this lessens the burden on the courts and also lessens the disputes related to lands. ´Electronic web portal´, through this portal everything is centralized and electronically available. Therefore, a large number of simple cases in this area will be fully automatically treated without resorting to a “real” court. This example of “electronic case processing” saves time and money both.[20]
France, which ranked in 20th position under the WJP Rule of Law Index 2020, introduced a ´Contact Video Justice´ (CVJ) system, these are administrative justice counters, equipped with internet access that permits citizens to view the information directly on the screen and receive documents and may also talk with a legal practitioner with a webcam. The ´Users´ counters are installed in access points (like city halls) and they are connected to the ´expert´ counters located in court. [21]
France’s ´New Generation of House of Justice and Law´ is an alternative legal structure which existed in urban areas, and extended to remote rural areas to avoid judicial deserts. They deal with daily/minor crimes and small civil matters and also offer ADR (Alternative Dispute Resolution) methods, they can also hold public hearings and are generally equipped with video conference devices.[22]
According to the World’s Prison Brief report, “Norway’s prisons have the lowest recidivism rates globally”.[23]
Finland and Norway both are shifting the focus of their criminal justice system from ´Punishment´ to ´Rehabilitation and Healing´. Their vision for the justice system is “Life inside shall resemble the life outside as much as possible” The principle tenet of Norwegian Correctional Service is ¨If you treat someone as a Monster, they’ll behave like a Monster.
In Finland and Norway prison is the place of last option, House arrest is most common. They focus on the ´Root Cause of Crime´ they believe prison will not solve their social problems only social services can. In Norway, they do not imprison their youth (kids under 18 years of age), because they don’t want to disturb their education, cut them off from their loved ones and expose them to worse pain and violence when their brains are still developing. Prisons exist to rehabilitate people.
Netherland “Register of Expert”; to enhance the accurate working of the court, judicial bodies in the Netherlands rely on the Register of Court Experts (NRGD). A judge, a lawyer, or the Public Prosecution Service, for instance, can consult this register. The NRGD lists experts in areas such as DNA testing, forensic psychology, psychiatry, or handwriting analysis.
Above all, to fully empower the judiciary there must be a proper allocation of budget for judicial institutions. Judiciary as a public service body receives funds from public funds, therefore, there must be transparency in the use of such funds to gain public trust. Hence, the model of ‘Performance-based Budget’ reforms should be introduced which can stimulate the performance and efficiency of the judiciary, as according to OECD (Organization for Economic Cooperation and Development):
“From the citizens’ point of view, the system can enhance transparency and accountability and from the government point of view, it may help to make budgeting decisions underpinned by performance data, to compare departments, and to weigh priorities”.[24]
[1] “Ten sermons of Religion of Justice and the Conscience, 1853” by Theodore Parker,
http://quoteinvestigator,com/2012/11/15/arc-of-universe/
[2] World Justice Project Report, Rule of Law Index, 2020,
https://worldjusticeproject.org/our-work/research-and-data/wjp-rule-law-index-2020
[3] World Justice Project 2020: Pakistan slips down in absence of corruption, rule of law index, The News, November 1st, 2020, https://www.thenews.com.pk/print/737464-world-justice-project-2020-pakistan-slips-down-in-absence-of-corruption-rule-of-l aw-index
[4] Conceptual Framework of the WJP, Rule of Law Index, 2020.
[5] World Justice Project 2020: Pakistan slips down in absence of corruption, rule of law index, The News, November 1st, 2020, https://www.thenews.com.pk/print/737464-world-justice-project-2020-pakistan-slips-down-in-absence-of-corruption-rule-of-l aw-index
[6] Research Paper, by M. Azam Chawdry, “Corruption in Pakistani Courts in the Light of Local Cultural Context” (reference quoted from; Law Reform Commission 1967-70, Page no. 414)
[7] Research Paper, by M. Azam Chawdry, “Corruption in Pakistani Courts in the Light of Local Cultural Context” (reference quoted from; Law Reform Commission 1967-70, Page no. 414-415)
[8] Bar accuses CJ-led panel of nepotism in judges’ selection, March 15, 2012, The News, https://nation.com.pk/15-Mar-2012/bar-accuses-cj-led-panel-of-nepotism-in-judges-selection
[9] Moiz Ur Rehman, “The urgent need for Judicial Reforms in Pakistan”, Business Recorder, May 25,2020, https://www.brecorder.com/news/594799
[10] Barrister Taimur Malik, “In Pakistan, justice is the title of an important person. Not an ideal of hope and fairness”, September 05, 2018, The Dawn, https://www.dawn.com/news/1431101
[11] Statement of cases Pending, Institution and Disposal during the period from 1-1-2021 to 31-5-2021 in the Superior Courts and District Judiciary of Pakistan, http://ljcp.gov.pk/nljcp/assets/dist/news_pdf/courts.pdf
[12] Barrister Taimur Malik, “In Pakistan, justice is the title of an important person. Not an ideal of hope and fairness”, September 05, 2018, The Dawn, https://www.dawn.com/news/1431101
[13] World Justice Project – Access to Justice 2019, 2017 General Population Poll survey module on legal needs and access to justice, https://worldjusticeproject.org/sites/default/files/documents/Access-to-Justice-2019-Pakistan.pdf 13 Tahmina Rashid, “Crimes against women in Pakistan”, December 03, 2019, Asia and Pacific Policy Society, https://www.policyforum.net/crimes-against-women-in-pakistan/
[14] Asif Ullah Khan, “Model Courts in Pakistan: A silent Revolution”, July 07, 2019, India Legal, https://www.indialegallive.com/world-news/global-trends-news/model-courts-in-pakistan-a-silent-revolution/ 15 “Pakistan rape Acquittals rejected”, June 28, 2005, BBC News, http://news.bbc.co.uk/2/hi/south_asia/4629457.stm 16 Shamil Shams: Interview, Mukhtaran Mai: ‘More Pakistani women are demanding their rights now’, DW News, https://www.dw.com/en/mukhtaran-mai-more-pakistani-women-are-demanding-their-rights-now/a-48049179 17 Catherine Powell, ”Flawed and Unequal Justice in Pakistan”, June 17, 2015, Council on Foreign Relation, https://www.cfr.org/blog/flawed-and-unequal-justice-pakistan-0
[15] “This Crooked System: Police Abuse and Reform in Pakistan”, September 26, 2016, Human Rights Watch, https://www.hrw.org/report/2016/09/27/crooked-system/police-abuse-and-reform-pakistan 19 Ibid.
[16] “Lawyers move SC against Lahore High Court chief justice”, August 10, 2017, Dawn News, https://www.dawn.com/news/1350724
[17] Wajiha Ahmed Sheikh, ¨Bar asks Chief Justice to Resign”, October 16, 2016, Dawn, http://www.dawn.com/news/1290326
[18] Pakistan hospital bomb attack kills dozens in Quetta, August 08, 2016, BBC News, https://www.bbc.com/news/world-asia-37007661
[19] Comparative study of the reforms of the judicial maps in Europe, 2012, Page no. 50,
https://rm.coe.int/comparative-study-of-the-reforms-of-the-judicial-maps-in-europe/168078c53a
[20] Comparative study of the reforms of the judicial maps in Europe, 2012, Page no. 52,
https://rm.coe.int/comparative-study-of-the-reforms-of-the-judicial-maps-in-europe/168078c53a
[21] Comparative study of the reforms of the judicial maps in Europe, 2012, Page no. 53, https://rm.coe.int/comparative-study-of-the-reforms-of-the-judicial-maps-in-europe/168078c53a
[22] Comparative study of the reforms of the judicial maps in Europe, 2012, Page no. 51,
https://rm.coe.int/comparative-study-of-the-reforms-of-the-judicial-maps-in-europe/168078c53a
[23] Systems of Crime and Castigation: A Reevaluation of the Punishment Bureaucracy, SIT Digital Collection, Independent Study
Project, 2019, Page no. 20, https://digitalcollections.sit.edu/cgi/viewcontent.cgi?article=4380&context=isp_collection 28 Alex M. Johnson, “What I Learned Touring Prisons in Finland and Norway”, Stories – The California Wellness Foundation, https://www.calwellness.org/stories/lessons-prisons-finland-norway/ 29 Ibid.
[24] OECD 2017 Public Governance Directorate Budgeting and Performance in the European Union – A review in the context of EU Budget Focused on Results
Very well researched and focused article.