Friday, August 28, 2020

PAKISTAN TODAY

Reformation of the Judicial System

BY PAKISTANTODAY , (LAST UPDATED AUGUST 23, 2020)

The justice system is not yet independent

By: Akhtar Aly Kureshy

It is a settled view that the well-being of the general public and the boosting of the economy is purely dependent upon an efficient legal justice system so it is urgently required to initiate Law reforms. Law reforms are essential and desirable for a progressive nation but in Pakistan this phenomenon is most disliked and ignored by every regime, including the present one, claiming to be a law reformer. Unfortunately, the history of Pakistan is full of such legal crises, and after the demise of Quaid-e-Azam, the new born country was forced to suffer a number of constitutional and legal crises and undesirable experiences of martial law multiple times.

Law reform is the process of examining existing laws, advocating and implementing change in a legal system, usually with the aim of enhancing delivery of instant and inexpensive justice, and its efficiency. Law reform is a subject matter of good governance, but the Government has established an institution for this purpose which is called the Pakistan Law Commission, which is an organization set up to facilitate law reform. The Pakistan Law Commission carries out research and recommends ways to simplify and modernize the law. The Law Commission is an institution independent from government control, providing intellectual independence to accurately reflect and report on how the law should progress. The Chief Justice of Pakistan is the Chairman of the Pakistan Law Commission. Ex-CJP Mr Justice Saqib Nisar, while addressing a lawyers’ function, regretted that he did not manage to give time to the Law Commission for required law reforms, although he has taken more than 100 suo motu actions on the deteriorating situation of law.

Law reforms activities can include preparation and presentation of cases in the court, in order to change to give justice and research or writing that helps to establish an efficient legal system which can be a basis for other law reform activities. Actually Law reforms can be the driver for all other reforms, including reform of the economy. A true market economy cannot be created without ensuring the guarantees of private property and transparent predictability for business activity.

While the clock is running fast for a change to make law reforms in our judicial system in our interest and not in anyone else’s interest, a bold decision has to be taken to stop looters and grabbers, and a clear project that is above all stronger than everyone and we have no choice to initiate these law reforms to make a new Pakistan which was the dream of Allama Iqbal and vision of Quaid-e-Azam and PM Imran Khan who claims to make the State of Medina a welfare state, this is high time to make it possible

Law reforms create the atmosphere of rule of law which implies that every citizen is subject to the law. It stands to convey that nobody is above the law and all citizens are equal before law. There is no secret that a powerful nation is recognized by its history, civilization and its judicial system and we being a Muslim nation have our own culture and civilization but due to British rule in the Subcontinent, our values got pushed to compromise everything, resultantly we fail to deliver what we desire and get involved in corruption, nepotism, social and moral evils.

So in the beginning, Pakistan had no other option except to adopt the laws and judicial systems already enforced in British India without realizing whether they represented the wishes and needs of the public or not.

The USA is a unique example of a good nation which has its own system, which refused to adopt anything from the British system of government despite being formerly colonized, and which was determined to design and develop its own system of government including its judicial system. That’s why the USA is now ruling the world except for the Coronavirus, of which it has become its largest victim. Neither the British nor any other ex-colony of the British is in line to compete with the USA. Perhaps the USA is following Abraham Lincoln’s saying that “You cannot escape the responsibilities of tomorrow by evading them today”.

Pakistan, which remained a British Colony for a long time, still shows its reflection on everything and never ever tried to show that we too have our own Islamic system of Government and judicial system. There has been a set of different tenures of Martial Law, first one in 1958 followed by a new Constitution of 1962 in which it was tried to introduce a presidential form of government which remained a bitter experience. PM Imran Khan used to talk about the basic idea of the first welfare state of the world “Medina”, the most fascinating state to rule a country and the entire Europe who were our enemy by religion, are following our symbol of the State of Medina and we are just talking about its concept.

Among all Muslim countries credit goes to Saudi Arabia which made the Quran its permanent Constitution and ut the Kalima Tayyiba on its flag to show that it is an Islamic nation with its own independent and unique system of government and judicial system to deliver justice, where everybody has a peaceful sleep.

Pakistan, following neither an Islamic system nor a British Parliamentary form of government, simply adopted an objective Resolution (on 12 March 1949) as an integral part of the Constitution that there will be no law contrary to the Quran and Sunnah, which does not make Pakistan an Islamic welfare state just like Medina. Similarly, Pakistan is not a pure Parliamentary system as we added a number of new things to harmonize the Islamic culture, so Pakistan is a mixture of so many systems and it has lost its real identity by following the British legacy, and thus therefore miserably failed to deliver or emerge as an independent nation with its own system of justice. Without an effective justice system there is no concept of prosperity and equal opportunity for every citizen.

Once Khalil Gibran said that “One day you will ask me which is more important: my life or yours? I will say mine and you will walk away not knowing that you are my life.” This is our problem, that our leaders do not know who is more important and Pakistan is our life. They made their own life comfortable, ignoring the system to leave it as it is and walk away to London or abroad, leaving Pakistan to the next ruler who again starts the legacy of earlier ones or starts learning how to make Pakistan a welfare country.

Imran Khan is a big follower of Nelson Mandela and used to quote him everywhere, Nelson Mandela said “You can’t finish poverty by charity, poverty will finish by justice” which we are lacking since the creation of Pakistan. Everything of wellbeing and prosperity of the general public is connected with an instant and inexpensive judicial system and our present judicial system is about to collapse and totally fails to deliver justice to a common man.

Recently in an interview Science and Technology Minister Fawad Chaudhry on a question said the PM should initiate a project of Law Reforms to change Pakistan as claimed in its party manifesto and that it was the need of the hour and a key to progress.

Now it is easy to understand that Pakistan is desperately seeking legal reforms to make Pakistan a welfare state where everybody has the right to live with respect and security. Therefore, law reforms are inevitable in the existing substantive and procedural laws. All prevailing laws need to be reviewed to harmonize the wishes and needs of the public. The IMF, World Bank and ADB also impose such conditions of law reforms, economic reforms etc. to avail financial facilities, as recently we reformed our tax system by following IMF guidelines.

Legal Jurisprudence evolved in Pakistan, especially in the last decade where the Supreme Court has taken suo motu Actions against the Government and its officers regarding public policy and merits, shows that the government is least interested in required legislation and supremacy of law. It is obvious to emphasize that laws and the court system both need reforms. Our whole legal justice system is primarily based on the legal precepts of the previous century and needs to change into a digital, e-filings system, a meaningful, cost effective and result-oriented one.

Law reforms should be an integral part of the ongoing reform process. Legal reform is a tool for implementing necessary reforms, to balance competing interests, create a dynamic and sustainable economy, and build a sustainable civil society. During the last decades the judiciary became active in economic issues related to economic rights established by the Constitution because “economics may provide insight into questions that bear on the proper legal interpretation”.

While the clock is running fast for a change to make law reforms in our judicial system in our interest and not in anyone else’s interest, a bold decision has to be taken to stop looters and grabbers, and a clear project that is above all stronger than everyone and we have no choice to initiate these law reforms to make a new Pakistan which was the dream of Allama Iqbal and vision of Quaid-e-Azam and PM Imran Khan who claims to make the State of Medina a welfare state, this is high time to make it possible.

The writer is an Advocate Supreme Court, member International Bar Association, London and former Assistant Attorney General for Pakistan.

PAKISTAN TODAY

A blessing and a milestone

BY PAKISTANTODAY , (LAST UPDATED AUGUST 12, 2020)

By: Akhtar Aly Kureshy

Order passed in a suo motu case by the Chief Justice of Pakistsn, Mr Justice Gulzar Ahmad, is really a breakthrough in our judicial history as the entire judicial system has already collapsed, whereas NAB cases also disappointed the entire nation. There is no progress, as nothing coming out in NAB cases, some of which have been pending since 1999, and the index of corruption is going speedily higher, and everybody, including politicians and particularly those who are facing NAB cases, are condemning NAB for being onesided, whereas public is helpless at the dead-slow accountability.

It is an open secret that without strict accountability you can’t be a live and prosper as a nation, and Pakistan being a Muslim nation, its responsibility is more strict and wide. It is very unfortunate after 73 years of independence we still awaiting some angels from the Almighty or some type of religious leader like Khomeini (of the Iranian revolution) who orders the shooting of anyone who does the corruption of a rupee. As a result, everybody has no option except become honest and good or go underground.

Although NAB is an independent and national institution which has a heavy responsibility to clean up corruption from Pakistan, surprisingly our leaders who made the NAB law and this institution, never tried to build the credibility of this institution as independent and impartial. Rather NAB is seriously lacking its basic infrastructure and suffers from capacity building issues, even shortages of NAB courts and judges, meaning thereby our leaders are not sincere for accountability, as earlier General Musharraf misused NAB 1999-2008; then the Zardari government of 2008-13 was not interested in accountability as the majority of their leaders, MNAs & MPAs, and so on, were liable to be arrested in NAB cases. Similarly the PML(N) in 2013-18 was also the least interested in accountability. None of them ever tried to reform the NAB laws and now all of them are crying after they have fallen under the thumb of NAB and are raising question marks on the credibility and performance of NAB. Even the present PTI government too has no vision of impartial and across-the-board accountability as their two year passed hopelessly.

A nation can’t survive or make progress unless its judicial system is empowered to deliver justice instantly and inexpensively. It is the prime duty of the State to create such legislation and infrastructure. Without justice a civilized society is a dream and a blind support to create a brutal and inhuman society as will happen in the jungle. These days when the whole World has become a global village with ultra-modern devices and systems and every country is claiming to be more powerful and civilized and some even to have made atom bombs, to have no system to access instant and easy justice is an abuse for those who are leaders and ruling the nation. Unfortunately our country Pakistan is also facing such a situation and has no justification for this corrupt practice. The leaders remained busy in looting national money to buy foreign properties and comforts, leaving the poor nation without health care, Education and justice system and there is no option except to compromise and become a corrupt citizen and give a twist to NAB authorities, who are also members of the same society.

In Pakistan, it is clearly understandable that three persons can change the Pakistan. First is the PM, who is the leader and enjoys the command and confidence of public, but apparently he is too lacking accountability vision. Just quoting the Chinese example is not enough and similarly the present government or cabinet has had no meeting or agenda or funds allocation or shown any reform intention for NAB or its capacity building, at least none was ever announced, though NAB with its traditional style of dead slow speed is going on disappointing the nation. The second personality is the Army Chief who can build pressure for impartial and across-the-board accountability, but apparently he is not so inclined after the case of his extension in the Supreme Court.

Last but not least is the Chief Justice of Pakistan who has taken notice of NAB performance and passed an appreciable order and sought suggestions from the Chairman NAB and Government in the suo motu case. This is really a blessing for the system to speed up and finish its backlog and make its line and length clear to punish those who are corrupt.

On a similar question of deeprooted corruption, I asked Ijaz Hussain Batalvi, a legendary barrister and intellectual, who smiled and said, “There is need to appoint a policeman with every citizen of Pakistan.” True, to keep 220 million people honest and corruption-free, NAB requires a huge capacity building of human resource, law officers, judges, courts and infrastructure, as SC has rightly ordered completion of trials within three months and appeal time in High Court is mentioned as just 30 days in NAB laws.

It is easy to have a corruption-free society, but the schedule of NAB proceedings must be followed, like the three months fixed for inquiry, then strictly three months for investigation, three months for trial in the NAB Court and one month for appeal in the High Court. This is the secret, and rests with the present Government which claims for change and accountability. The order of making of 120 NAB Courts will begin a new era when the speedy process of NAB Courts and their judgments will generate a new atmosphere of accountability and justice. This will let us redesign our society as ordered in the Holy Quran and for those fascinated by Europe, enable us to stand in the comity of nations with sobriety and respect to pursue prosperity, eliminating poverty and corruption.

The writer is an Advocate of the Supreme Court and a former Assistant Attorney General

THE NEWS INTERNATIONAL 05 August 2020

Era of justice by Akhtar Aly Kureshy

It is an open secret that without strict accountability you can’t prosper as a nation. It is very unfortunate for us that even after 73 years of independence, we are still awaiting messiahs who can help get rid of corruption in the country.

Although NAB is an independent national institution that has a heavy responsibility to clean up corruption in Pakistan, surprisingly our leaders – who made the NAB law and this institution – never ever tried to build the credibility of this institution as an independent and impartial entity. Rather, NAB lacks basic infrastructure and faces capacity-building issues, such as shortage of NAB courts and judges.

This just shows that our leaders have not been sincere about accountability. Earlier, Gen Musharraf had misused NAB in 1999-2008. Then the Zardari government from 2008 to 2013 was not interested in accountability since the majority of their leaders were liable to be arrested in NAB cases. Similarly, the PML-N from 2013 to 2018 was also least interested in accountability. Now all of them are crying about NAB and its credibility and performance. Even the present PTI government has no vision of impartial and across-the-board accountability.

A nation can’t survive until its judicial system is empowered to deliver justice instantly and inexpensively. It is the prime duty of the state to create such legislation and infrastructure. Without justice, a civilized society is just a dream. Unfortunately, in Pakistan our leaders and ruling elite have remained busy in looting national money, leaving the poor nation without healthcare, education and a good justice system. Hence, there is no option except to compromise and become a corrupt citizen and give a twist to the NAB authority – who by the by are also members of the same society.

Mr Ijaz Hussain Batalvi, a legendary barrister and intellectual once said to me that there is a need to appoint a policeman with every citizen of Pakistan. That seems to be true: to handle and to control the 220 million people of Pakistan and to keep them honest and corruption free, NAB requires a huge capacity building of human resource, law officers, judges, courts and infrastructure with transparency.

In this respect, the SC has rightly ordered trials to be completed within three months; appeal time in high court is mentioned as just 30 days in NAB laws.

The SC order of setting up 120 NAB courts will begin a new era when the speedy process of NAB courts and judgments will generate a new atmosphere of accountability and justice.

The writer is an advocate of the Supreme Court and former assistant attorney general for Pakistan.