This article is a two part series. Read Part I here.
An efficient justice system can only be established if efforts are made to produce highly competent adjudicators at lower levels, who are recruited transparently after public hearings by a board of professionals and not by serving judges, and trained intensively at a center of excellence or a reputed university. It would help produce competent judges for higher courts in future.
Appointments of members in all the special tribunals must be through the same procedure, as in the case of judges of high courts and not by the Executive. The Chief Justice of Pakistan (CJP) or any other Judge authorized by him or a committee appointed by him should look into appointments already made in these tribunals and incompetent members should be removed and declared unfit to sit on the special tribunals. The main aim of judicial reforms should be elimination of unnecessary litigation and facilitating 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 a drastic reduction in litigation, thus no need of more buildings, additional judges, new cars, big bungalows etc. for them.
There is enormous litigation in our polity due to a lack of enforcement of the rule of law, and due to a failure in educating the society to abide by rules and regulations, as well as guaranteeing socioeconomic justice to eliminate disputes, and good policing to deal with criminal elements. It is hoped that after the general elections, the new elected Prime Minister in consultation with the 29th CJP will establish a commission to determine the reasons for this morbid state of affairs and how to rectify the situation. The main purpose of judicial reforms should be ending unnecessary litigation and for this all the three pillars of State— legislature, executive and judiciary — need to work hand-in-hand.
The issue of meaningful and result-oriented reforms as discussed above should not be confined to one pillar of State, the Judiciary, alone. It must be for all organs of State and society as a whole ought to be made part of the process for which awareness campaigns are a prerequisite. The prevailing structures of Legislature, Executive, in fact, all areas of governance, are suffering from multiple maladies. The elitist, anti-people and power structures are the real cause of major problems faced by Pakistan. Unfortunately, there is no political party willing to dismantle these structures.
The main purpose of judicial reforms should be ending unnecessary litigation and for this all the three pillars of State— legislature, executive and judiciary — need to work hand-in-hand.
On the contrary, the ruling classes—militro-judicial-bureaucracy-clique, landed classes in assemblies and Senates, and wealthy businessmen-turned-politician, financed by unscrupulous traders, property tycoons and rent-seeking businessmen—stand united under one banner; the maintenance of the status quo, ensuring that real power is never shifted to the masses. The non-implementation of Article 140A of the Constitution for the last two decades testifies to it.
We have failed to democratise our State apparatus. The existing system is inherently exploitative and anti-people—the ruling elites thrive on people’s hard-earned money and use force of the police, taxation and judiciary to keep them under control. The empowerment of people politically and economically is the real essence of a true democracy but this would be a deathblow for the ruling classes. Thus, they work hand-in-hand to safeguard their mutual interests. In between, some infighting among them does take place for grabbing more and more benefits and privileges, but they always strike deals to save their vested interest through a mutually-beneficial and exploitative system. They hoodwink the masses through slogans of change and reforms, but are not ready to empower the masses. They know that the perpetuation of existing system alone can help them keep the masses subjugated.
For democracy, the sine qua non is accountability for all. Accountability must start from the judges who adjudge others. Judges must be above board—men of integrity, blameless, and free from all internal and external pressures. Since justice should not only be done but seen to have been done, the prime duty of a judge is to demonstrate this through his judgements and not by verbal exchanges in courts or statements on various occasions. The starting point of reforms in Pakistan should be accountability of all organs of State.
The ruling classes—militro-judicial-bureaucracy-clique, landed classes in assemblies and Senates, and wealthy businessmen-turned-politician, financed by unscrupulous traders, property tycoons and rent-seeking businessmen—stand united under one banner; the maintenance of the status quo, ensuring that real power is never shifted to the masses.
In a State where the high-ranking civil and military officials and judges get state lands and high-value urban plots of land as bounties, but do not make public declaration of the assets owned by them and their close relatives, there cannot be hope for true democracy, rule of law and responsible governance. Civil society and media should come forward to force legislators to abdicate all laws of secrecy and demand an unfettered right to information as enshrined in Article 19A of the Constitution, except matters related to State security etc. This would pave the way for accountability of all organs of State through independent bodies, as was done by China in March 2018 by establishing two new “super agencies” to separately regulate the public and the private sector. The “super agency” regulating the public sector is the National Supervision Commission (NSC) and one regulating the private sector is State Administration for Market Regulation (SAMR)—for details see China’s lawfare against corruption—lessons for Pakistan.
In Pakistan, we have laws for declaration of assets and liabilities by government servants. Their declarations are not made public to ascertain their present value and how they have been acquired. The same is the case of judges and generals. Their declarations must also be made public. In India, there was a sharp criticism over asset disclosures of the judges and their spouses. It was demanded that information about the assets of other close relatives, like sons and daughters, was also important in the Indian context. It is also critical in the Pakistani context as near and dear ones take advantage of positions of their relatives in power.
In India, the voluntary declarations by judges, made under a Supreme Court resolution of May 1997, were criticised being only in partial conformity with the requirements laid down therein. It was campaigned that declarations, in fact, underlined the need for a law that “makes the disclosure mandatory and open to the public, lays down in detail what are the assets to be declared, how the disclosure is to be made and who all should come under its purview.” It was demanded by Indian civil society and media that the consequences of wrong declarations should also be specified. In Pakistan we need similar laws for judges, government officials, elected representatives and holders of public office.
Since the dispensation of justice is the main pillar of a democracy, the foremost need is the elimination of unnecessary litigation and facilitating smooth running of affairs between the State and its citizens.
The issue of accountability has assumed greater relevance in today’s Pakistan amidst allegations of political victimization and gagging of the freedom of the press. The public and media must demand right-to-information about the sources of acquiring assets, especially lucrative plots from government on which no tax is paid under section 13(11) of the Income tax Ordinance, 2001 by mighty sections. In the light of Article 19A of the Constitution, it is now fundamental right of every citizen to be able to access knowledge about the assets and tax declaration of persons holding any judicial position, government post or public office or where information is of public importance. Even courts cannot curtail this fundamental right as Article 19A of Constitution says: “Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law”. This was explained by the Supreme Court of Pakistan in Watan Party & Others v Federation of Pakistan & Other PLD 2012 Supreme Court 292 as under:
“Article 19A has thus, enabled every citizen to become independent of power centres which, heretofore, have been in the control of information on matters of public importance….. Article 19A is a grant of the Constitution and, therefore, cannot be altered or abridged by a law enacted by Parliament…It, therefore, will not for this Court to deny to the citizens their guaranteed fundamental right under Article 19A by limiting or trivializing the scope of such right through an elitist construction whereby information remains the preserve of those who exercise state power.”
In the light of the above, the civil society and media need to counter any move by the government, courts, parliaments—national or provincial—or any other organ or department of the State to curtail this fundamental right in the garb of special secrecy laws, contempt of court law etc that cannot overrule this constitutional right. The true implementation of Article 19A of the Constitution is necessary if the pillars of the State—legislature, judiciary, executive, and the media for good measure—have to be accountable to the public at large.
Right to information, access to public record and free availability of what is owned by privileged classes must be assured—this alone can help fight corruption, abuse or excessive use of powers and malpractices in all domains. As a first step, we need a comprehensive legislation for accountability of all powerful segments and reforms entailing setting up an independent and credible body for the appointment of judges, entertaining complaints against them, criminal investigation if they indulge in corruption, amendment of the Contempt of Courts law by removing “scandalizing and lowering the authority of the Court’ from the definition of the phrase “contempt,” and implementation of right-to-information law to all organs of State, including the generals and judges, which is being thwarted by self-serving laws and rules framed by them that they have effective self-regulating bodies, laws and regulations for the same.
It is vital for open government and the success and sustainability of democracy to go for all-out reforms, rather than simply selective and cosmetic changes. Since the dispensation of justice is the main pillar of a democracy, the foremost need is the elimination of unnecessary litigation and facilitating smooth running of affairs between the State and its citizens. It is highly lamentable that presently government departments are the main litigants. The functionaries usurp the rights of people or pass unlawful orders or act beyond jurisdiction and then drag citizens in courts. Thus, a national commission should be established to not only determine the reasons for this sorry state of affairs but also to suggest reforms to stop unnecessary litigation and ways for speedy disposal of cases as well as accountability of both public and private sectors as successfully done by China.
This article is a two part series. Read Part I here.