A strong and effective judicial system is a backbone of any country and in the same vein, the judicial system of Pakistan being an important limb of the state, should be robust, transparent, independent and lastly accountable. In terms of a constitutional mandate, the Supreme Court can protect our most important fundamental rights, control crimes, build confidence for investors, ensure economic growth, and define the supremacy and rule of law including the roles for all lower courts.
Pakistan has been a country where courts are being blamed for judicial activism due to deviations from assigned scope and powers defined under the law. This practice has undermined our image as a nation in the global community and impacted our social, political and economic standing. When judicial activism leads to courts deviating from their assigned roles based on a political or personal preference, the main drawback is that their decisions set precedents for lower courts.
Historically, we experienced Justice Munir’s notorious doctrine of necessity, which opened the door for usurpers to legalize their actions. We also witnessed the dissenting note of Justice Cornelius, although he was projected as a good judge, however we never highlighted his concurrent judgement in the Dosso case filed against Martial Law authorities wherein he agreed with the decision of other judges which certainly helped him to secure the position of the Chief Justice of Pakistan.
While he was the Chief Justice of Pakistan, Ayub Khan misused his authority forcing courts to punish his opponents and he introduced PRODA and EBDO to convict dissent voices. In all these matters, Mr. Cornelius remained an obedient judge and failed to introduce reforms in judicial sectors to stop maligning of the court by a dictator to meet his political agenda. His obedience bore fruits for him after his retirement and he was rewarded with a key position as the federal law minister in the cabinet of another dictator of Pakistan.
Political intervention and judicial activism was subsequently exposed during the tenure of General Zia. Judges not only helped him implement his presidential orders but also helped Zia dispatch his main rival Mr. Zulifqar Ali Bhutto. The way trial court and then the Supreme Court handled Mr. Bhutto’s case and issued a guilty verdict was criticized at domestic and international levels. The former U.S Attorney General Ramsey Clark called it a mock trial fought in Kangroo courts.
Unfortunately, our courts continued the same practice during Pervez Musharraf’s tenure as well. Our Supreme Court facilitated him by legalizing his action abrogating the constitution and further by allowing him to amend the constitution and carrying out his political agendas.
However, after a historic lawyer’s movement, which forced Mr. Pervez Musharraf to leave his office and successfully restored the independence of the judiciary, it gave a new wave of hope that this time Pakistanis could build the best judicial system. The newly elected government, with help of opposition parties, introduced the 18th amendment in the constitution; and by inserting Article 10-A, the right to a fair trial became a fundamental right for every citizen in determining their liability in civil and criminal matters.
However, chief justice Iftikhar Chaudhry caved to his predecessor’s bad habits and instead of introducing reforms, his focus remained on settling old scores with those who had different opinions regarding his restoration as chief justice. He frequently exercised and misused the Suo Moto powers which promoted the worst form of judicial activism and created chaos in the country. Suddenly, the Government became dysfunctional and every matter was being taken up by the Supreme Court. Foreign investors lost confidence in dealing with Pakistan and started adding international arbitration clauses to their agreements to bypass litigation in Pakistan.
Due to his poor and arbitrary judgments lacking any legal substance, Pakistan witnessed international embarrassment and suffered huge financial losses. In the Reko Diq case, Pakistan was slapped with a $6 billion penalty, whereas in Karadeniz Elektrik Uretim A.S case, the ICSID tribunal disagreed with the Supreme Court’s findings and concluded that there was no specific corruption.
The legacy left behind by Mr. Chaudhry’s was kept alive by Mr. Saqib Nisar who blatantly used the honorable office in running political campaigns and settling personal scores. He openly violated his code of conduct by interfering in administrative matters, meeting with politicians and participating in election campaigns. We witnessed him appearing on TV as a chief Justice; in live shows advocating for the building dam and asking for funds from litigants in open court leading to another black spot on the face of our judicial system.
Apart from his personal motives, the court took up the famous Panama case against the ex-Prime Minster and his family during his tenure. Nisar exploited his team of a few handpicked judges whom he always trusted in specific political cases and their judicial record speaks volumes. How judges could use their own political preferences to convict an elected prime minister on such flimsy grounds is abhorrent.
They twisted the facts, introduced a new logic in legal and accounting history by calling receivable salary an asset, which in fact was a write-off of bad debts in terms of the Income Tax Ordinance, 2001. Moreover, section 132 of the same income tax ordinance does not require any reporting of receivable incomes from individuals. However, unpopular dictionary definition was selected to fulfill their motives and support their decision, which entirely negated the concept of a receivable and payable. Subsequently the NAB courts, in both cases filed against Mr. Sharif, did the same thing by ignoring the basic rights available to him as a defendant, and decided his cases on a presumptive basis.
Interestingly, while framing charges against him, the NAB judge admitted that his family empire and the approximately sixteen firms listed in the para four of the charge sheet, which shows that the business and personal properties were acquired through inheritance. Yet Nawaz Sharif was still sentenced for assets beyond means without mentioning a single reference or evidence of kickbacks or misappropriation of government funds.
Now the High Court’s appellate bench, which is hearing the appeals of Nawaz Sharif, have declared him a proclaimed offender. An appellate court deals with legal inconsistencies and it only has the power to decide matters in view of the available record. However, in this case the High Court took an aggressive stance; instead of referring the matter to a trial court, the appellate bench exercised the power of a trial court to declare him a proclaimed offender, which has rarely been seen in our judicial history. During the same time period the superior court has been generous and extended affection towards dictator Pervez Musharaf and despite his non-appearance and total disregard to Judicial system, the court seems in no hurry to make him surrender before the law, they even facilitated him to get his Citizenship Card and Passport restored.
Apart from politicians, courts are now unfortunately treating other judges in the same way as anyone who is a perceived threat to the power sector. Courts followed a similar approach in the Justice Shaukat Aziz Siddiqui and Justice Faez Isa cases. Justice Siddiqui was removed as a judge without investigating the sanctity of the claims he made in a speech before Islamabad High Court Bar Association. Whereas, the Supreme Court decision in Faez Isa’s case created doubts in the minds of many when the Supreme Court ordered an inquiry into Justice Isa’s wife by the FBR, even though she was not a part of the petition taken up by the bench.
It seems that courts have aggressively applied the law when deciding matters against those who are not in the good books of the establishment, while conversely, the same courts utilized different principles in Imran Ahmed Niazi, Sheikh Rasheed Ahmed and various other matters of similar nature. At times, tactical delays have also been adopted in important cases related to ruling party matters.
Keeping in view of our judicial history, it’s time for Pakistan to raise its Judicial Standards. Our judicial system still fails to honor basic human rights, political opponents are victimized, and dissenting voices are jailed for years due to denial of their fundamental right of fair trail available under article 10-A. Beyond domestic abuse, these injustices affect Pakistan’s standing in the world. Look at the global index for the rule of law and the World Justice Project (WJP) report, which listed Pakistan at the bottom performing countries, rating our judicial system at 120 out of 128 countries.
Their report analyzed: effective investigations, timely and effective adjudication, due process of law, effective enforcement, government influence in judiciary, etc. Without improving the performance of our judicial system, we can never be treated as a respected state. Our honorable judges need to review their performance, conduct, and the quality of justice that they are providing to us. Can we aspire to win a place with highly respected judiciaries like Denmark, Norway and Finland on the WJP index or will we remain part of the underperforming club and maintain our current position, right below Zimbabwe?
The writer is a corporate lawyer based in the USA. He has written several books on Pakistan corporate and taxation laws. He can be contacted at: email@example.com