Democracy and judicial institutions in Pakistan have long been strange bedfellows, with the pillars of the state unable to refrain from transcending their area of power. Either the bureaucracy or the judges, who are increasingly toeing the realm of popularism have, never understood the separation of powers, as provided in the Constitution. They are forgoing their basic duty in order to remain in the media lime light.
A recent example of judges involved in media frenzy was witnessed in the apex court, where the Chief Justice Saqib Nisar visited Mayo Hospital in Lahore, to review the healthcare being provided to patients. Justice Ijazul Ahsan and Justice Umar Ata Bandial accompanied him. Chief Justice Saqib talked to patients and inquired if they were satisfied with the situation in the hospital. It is unclear under which constitutional provision the Chief Justice is required to visit public institutions, which is the exclusive jurisdiction of the state, while 30,000 cases are still pending in the Supreme Court.
Political sobriety and constitutionally defined roles have taken a back seat in Pakistan as judges and politicians are busy squabbling over the outcome of the Panama verdict, which has sent many heads rolling, and has redrawn the entire political landscape. Instead of hearing cases of gross human rights abuse such as enforced disappearances and torture, the apex court has shifted its entire focus and energy to political cases that many term as a soft coup and a conspiracy to derail democracy in the country.
On the basis of the official statistics available up to December 2014, there are 1,777,184 cases pending in the Supreme Court, Federal Shariah Court, High court and the districts courts in Pakistan. The breakdown is as follows:
Generally, cases continue for several years in courts, and finally end up being inconclusive. In a rare case, the complainants of a pre-Partition property inheritance case celebrated its 99th anniversary. The case, which dates back to 1918, revolves around a dispute over the inheritance of 700 acres (5,600 kanals) of land in Bahawalpur. It was transferred from a Bahawalpur court to the apex court in 2005. A three-judge bench headed by Chief Justice Saqib Nisar heard the case. However, due to the absence of both the prosecution and defense lawyers, the case was adjourned. The complainants, who travelled from Bahawalpur to Islamabad, claimed their elder Shahabuddin, son of Sher Khan, was the owner of the land. He died in 1918, and the dispute has been going on since then.
To counter Pakistan’s huge case backlog, the Evening Courts Bill-2017 has been promulgated in Islamabad, where some 40,000 cases are pending. Whether or not it will have any impact remains to be seen.
The politicization of the judiciary recently manifested in the case of ex premier Muhammud Nawaz Shareef, who was ousted in August 2017 by the Supreme Court of Pakistan. The Apex court was censured for its role in ousting an elected prime minister on flimsy grounds. Several reputed human rights defenders criticized the judiciary for becoming an accessory to the military and state, and selectively applying the anti corruption law. If the court wanted to target corruption, then it should have applied the law across the board by taking up corruption cases against top military brass involved in money scams worth billions of dollars, and having off shore accounts and companies.
In fact, the judiciary should start with itself if it is serious in its resolve to purge the motherland of corruption. Justice Mohammad Farrukh Irfan Khan, a judge at the Lahore High Court, was also named in the Panama case, yet he is still serving in an official capacity. Similarly, two references are pending against the Lahore High Court Chief Justice Syed Mansoor: one relating to suspending the Multan bench, which is a violation under Article 198 of the Constitution, and the other about a Rs 850 million loan, which he got written off.
Furthermore, more than 200 complaints of misconduct against judges have been registered since 2005, none of which have been taken up by the Supreme Judicial Council. On 30 October 2015, former chief justice Anwar Zaheer Jamali, while addressing the Islamabad Bar Association said, “Ninety per cent of complaints filed against judges of the superior judiciary in the Supreme Judicial Council (set up under Article 198) became outdated because the council has been inactive for the past few years and that the vast majority of references had become infructuous as most of these judges had retired after completing their terms”.
It is unfortunate that instead of working proactively to improve the judicial system and the speedy dispensation of justice, the judges of Pakistan’s apex court are manoeuvring popular sentiments, and basing their judgments on mass opinion instead of equity and justice. In fact, the judiciary has been neglected for far too long, and is nearing total collapse. According to World Justice Project’s (WJP) ‘Rule of Law Report’ of 2017, Pakistan ranked 106 out of 113 in civil justice, while Pakistan’s criminal justice system ranked 81 out of 113. Moreover, 70 percent of people in Pakistan still prefer to address their disputes traditionally or informally, by involving politicians, panchayat, or jirgas (tribal councils).
Treating judges as holy cows will not resolve the issue of corruption. If the state institutions are serious in rooting out the menace, they must apply the anti corruption law across the board, sparing no one. The Asian Human Rights Commission (AHRC) reiterates its stance that without a complete overhaul of the justice system, purging it of corrupt officers, and minimizing intrusions into, and from other state institutions, changes in the status quo is mere wishful thinking.
