STALLED JUDICIARY – A STUMBLING STONE IN PAKISTAN’S JOURNEY TOWARDS PROGRESS
Malik Zaeem
Publishing date: 25 May 2024
Published in: Political Prism
Constitutionalism is democracy’s cornerstone. It necessitates a solid legal and constitutional framework which upholds the equality of all citizens and their civil and political rights, irrespective of their location, caste, religion, or ethnicity. One of the three fundamental institutions of the state created by the 1973 Constitution is an effective judiciary, as It is essential to equity, democracy, governance, security, and economic advancement. Access to the Rule of Law is guaranteed for all citizens by an independent judiciary. Civil and political rights need to be protected not just from the abuses of government agencies and officials, but also from influential interest groups that use or pose a danger to the integrity of the state and society.
Pakistan’s place on the World Justice Project’s 2021 Rule of Law Index is 130th out of 139 countries. The index is a multi-factor metric that assesses how closely a nation adheres to the rule of law. Muhammad Hamza Tanvir, the author, highlights the flaws of Pakistan’s legal system, including its lengthy trials. Cases like the Noor Muqaddam and Model Town cases are plagued by protracted proceedings, which seriously compromise the efficiency of nation’s legal system. The top judiciary in Pakistan seems to have been drawn inward by a power struggle, creating obstacles to the efficient operation of the state. It is alarming that there is a rift in the Supreme Court. When two judges declined to appear on the bench to hear a complaint accusing the Election Commission (EC) of violating court orders by delaying polls in the provinces of Punjab and Khyber Pakhtunkhawa (KP), the disagreement exacerbated, highlighting the politicization of country’s top courts.
Similar to Pakistan’s Supreme Court, there is noticeable disagreement in certain subordinate courts on constitutional interpretations and judicial philosophy, which leads to disputed decisions, especially when it comes to political matters. However, it is uncommon for 15 of the nation’s best legal minds to differ on even fundamental institutional policies and procedures (as opposed to case decisions) that are intended to support the Supreme Court’s smooth operation. It has caused the legal system to stall, and 2.6 million pending cases have no practical way to be resolved on urgent basis. The legal system in Pakistan is infamous for its protracted proceedings and inadequate case handling. A 2012 UNDP report stated that 43 percent of cases filed in Sindh’s courts required five to ten years to be resolved. The situation becomes quite bad when it comes to criminal matters in especially because those who are in court are often have to spend years in overcrowded prisons before their cases are heard and decided. The outcome is a sagging jail system, an overburdened judiciary, and citizens’ loss of trust in the legal system.
The nation’s economy has also suffered greatly as a result of the shortcomings in our legal system. Pakistan’s legal processes are complex, expensive, and take considerable time when compared to other nations. As per the World Bank ‘Enterprise Survey,’ 38% of Pakistani businesses view the court system as a significant impediment to their company operations, in contrast to 14% of businesses across South Asia. A third of Pakistani businesses, compared to a fifth in Bangladesh, view low court quality as a barrier, according to the “Investment Climate Assessment.” According to a different World Bank report from 2018, it takes 1,071 days on average to resolve a business dispute in court. After that, the case may be appealed, first before a High Court and subsequently before the Supreme Court. Cases that take more than a dozen years to settle are not unusual. This is one of the primary explanations of Pakistan’s 156th-place rank on the World Bank’s Contract Enforcement Index. No matter stalled judiciary hurts the smooth economic process running in the country. Recently, the law minister has pointed out while planning to overhaul the entire FBR structure that 2700 billion rupees are pending in courts due to sluggish judicial conduct in the shape of stay orders. It creates an environment in which investors are reluctant to invest in the country, as they have no proper security mechanism to protect and increase their investments.
The last, but no less significant, effect of judicial internal schism is to weaken democracy. It is at the price of supremacy and legislative sovereignty. Lawmakers start to rely on the courts to validate their activities or discredit those of their rivals. The process diminishes the institutional capability of both the legislative and executive branches of the governments. It is incompatible to have the judiciary become more political and for politics to become more judicial. A common complaint of courts is their involvement in politics. By vigorously intervening in issues that, for the most part, have political resolutions, the court has still also fostered controversy.
Some fundamental reforms are needed to address these problems, including filling in the gaps in the processes that guarantee universal access to justice, revising obsolete and superfluous laws and procedures, utilizing modern technology to its fullest potential to enhance case management through expedited and effective court proceedings, and instituting mechanisms like Alternative Settlement of Disputes. The judiciary’s actions frequently go unreported in the process of openly attacking other institutions for systemic abuse of power. The implications of judicialized politics and politicized courts are catastrophic, as history has shown. Breaking the cycle of institutional transgression and schisms is crucial. Then and only then will Pakistani democracy start to take a firm hold.