Huzaima Bukhari & Dr Ikramul Haq
Saturday, December 07, 2013

Challenges before the judiciary

With the appointment of Justice Tassaduq Hussain Jillani as the next chief justice of Pakistan from December 12, 2013, on the retirement of Chief Justice Iftikhar Muhammad Chaudhry, there is enthusiasm in official circles that the ‘era of undue intervention in civil-military administrative affairs and political arena’ will come to an end.

It is hoped that Justice Jillani, known as ‘the gentleman judge’ for his mild manner, would maintain focus on rights but ‘steer clear of intervening in government policy’. It is mentioned in various reports that Justice Tassaduq Hussain Jillani ‘avoided the high-profile political cases that Chief Justice Iftikhar Chaudhry revelled in’.

Analysts say Justice Tassaduq Hussain Jillani as chief justice of Pakistan would prefer ‘judicial vigilance’ over ‘judicial populism’. “If the courts fail to maintain this delicate balance, none else but people’s confidence in the judiciary would be the worst victim”, Justice Tassaduq Hussain Jillani observed in a recent ruling.

While the controversies and debates over the role and legacy of outgoing Chief Justice Iftikhar Muhammad Chaudhry will continue, it is time the new chief justice starts some fundamental reforms in the existing judicial system (‘Pride and justice’, The News, October 27, 2013). Our judicial structure, dating back to the British colonial era, has not changed except via a patchwork of so-called Islamic laws and establishment of the Federal Shariat Court by General Ziaul Haq.

Two conflicting legal systems have given an undue advantage to the police for self-aggrandisement rather than serving any useful purpose for dispensation of justice in the real sense of the word. The maxim ‘justice delayed is justice denied’ most aptly describes the essence of our judicial system which desperately needs reforms at all levels.

On August 14, 1947, we inherited a strong and independent judiciary with an unquestionable reputation of competence and integrity. Mian Abdul Rashid, the first chief justice of Pakistan, was a man of unimpeachable character, who refrained from attending government gatherings and public functions.

His successor, Justice Muhammad Munir, for his judgements in the Maulvi Tamizuddin case (PLD 1955 Federal Court 240) and a few others did become controversial, though his critics seldom realise that it was actually the failure of the political elite that paved the way for recurrent unconstitutional rules for which the judiciary could not alone be blamed. One cannot, however, forget some of his great successors like Justices Shahabuddin and A R Cornelius, who demonstrated high standards of judicial conduct even in the earlier tumultuous years of our political history.

In the post-independence years, the dilemma of our judiciary remained the perpetual failure of political leadership as it was approached many a time to determine the validity or otherwise of capturing state power by the men in uniform. In The State vs Dosso (PLD 1958 SC 533), Chief Justice Munir called it a “successful revolution”, but Justice Hamoodur Rehman in Asma Jilani vs Government of Punjab (PLD 1972 Sc 139) called it “usurpation” of people’s rights.

In Begum Nusrat Bhutto vs Chief of Army Staff (PLD 1977 SC 657) came yet another endorsement of the doctrine of necessity wherein “intervention” was declared lawful “in the best and larger interest of the nation. General Musharraf not only got three years but also the right to amend the constitution! However, defiance and an emphatic ‘no’ by Iftikhar Muhammad Chaudhry to the same Musharraf changed the entire judicial landscape.

For the judiciary, November 3, 2007 was the beginning of a new era. A dictator imposed a judiciary-specific martial law – this time the victims were not politicians but the judges. For the first time, it was an issue of survival for those who had always sided with the men in uniform – against politicians. The effectiveness of people’s street power that reigned from March 9, 2007 to July 20, 2007, and from November 3, 2007 to March 16, 2009 – culminated in the restoration of Iftikhar Muhammad Chaudhry as the Chief Justice of Pakistan on March 22, 2009.

As March 16, 2009 brought ‘justice’ for Iftikhar Muhammad Chaudhry, the Supreme Court as an institution conveyed a change of mind in its decision of July 31, 2009 as under:

“Before parting with the judgment, we would like to reiterate that to defend, protect and uphold the constitution is the sacred function of the Supreme Court. The constitution in its preamble, inter alia, mandates that there shall be democratic governance in the country, wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed; wherein the independence of judiciary shall be fully secured. While rendering this judgment, these abiding values have weighed with us. We are sanguine that the current democratic dispensation comprising of the president, prime minister and parliament shall equally uphold these values and the mandate of their oaths”.

The above judgement highlighted the real dilemma faced by Pakistan since its existence – a daunting challenge of establishing true democratic polity based on constitutional supremacy, rule of law and equity. The long military rules – backed by foreign masters – and in between them the experiments of ‘controlled democracy’ denied the people of Pakistan their sovereign right of self-governance, for which a long struggle was waged to secure independence from the British Raj. The dictatorial rules stifled all the state organs – especially the judiciary, whicht became an approving arm for many unconstitutional rules.

The Supreme Court, after the restitution of Iftikhar Muhammad Chaudhry, started taking up many cases – some by using suo motu powers – causing panic in many circles. Political polarisation diluted the valiant common struggle waged by all segments of society, most notably by lawyers, media, social and political activists, for restoration of an independent judiciary. The PPP government alleged that the apex court was transgressing its constitutionally-defined limits. Chief Justice Iftikhar Muhammad Chaudhry said that if people were not getting their rights, the judiciary was bound to be proactive.

However, we have not seen a reform agenda implemented to remove snags in the dispensation of justice which remains redundant and marred with inefficiency and inordinate delays. The task before Justice Tassaduq Hussain Jillani as the next chief justice of Pakistan should be to make the judicial system capable of delivering justice without delays and heavy costs to litigants.

No doubt the apex court and the higher courts are constitutionally obliged to curtail the arbitrary exercise of powers by any organ of the state since their main role is the protection of the fundamental rights of citizens under all circumstances. This should remain their first and foremost duty. While maintaining the supremacy of the constitution, a sanctimonious document representing and expressing the supreme will of the people, the courts should also ensure quick disposal of conflicts pending with them.

Tragically, our courts are still following outdated procedures and methods whereas many countries have adopted an e-system for filing cases and for their quick disposal through a fast-track follow-up system using the offices of magistrates at the grassroots levels. The main aim of judicial reforms should be elimination of unnecessary litigation and facilitating the smooth running of affairs between the state and its citizens.

Once both learn to act within the four corners of the law, there would be no need for enormous litigation. It is a shame that at present the government is the main litigant. It usurps the rights of the people and then drags the poor citizens in courts. First of all, the apex court under the new chief justice should establish a commission to determine the reasons for this morbid state of affairs. The principles underlying reforms should not mean forcing unnecessary litigation and then its quick disposal but to help reduce its occurrence in the first instance.

The writers, tax lawyers, are visiting professors at Lahore University of Management Sciences (LUMS).

Email: info@huzaimaikram.com

http://www.thenews.com.pk/Todays-New...-the-judiciary