PAKISTAN TODAY
Reformation of the Judicial System
- 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.
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