- Rotten to the core?
Be it religion or government, or even humanity, justice and fair play is a necessary pre-requisite. From centuries old philosophers to modern day jurists, every scholar demands and craves justice. It is the bedrock of a prosperous society. Without the provision of justice society will be full of defects.
All major religions enshrine the importance of a just system in their respective religious codes. Islam stresses upon justice and greatly prioritises it. A Qazi will be the first one to answer for his decisions. After all, in this world, he was the one dispensing justice to the common man. A single individual kept incarcerated wrongfully would be an intolerable burden in the afterlife. Even a delay in the release of an innocent individual would be held accountable.
Such examples substantiate the importance of a justice system. Unfortunately, in spite of numerous examples that strive upon the importance of a thriving justice system, most of the latter systems have failed miserably. A quest for justice is a journey to an unknown destination with no end in sight, especially in Pakistan. Our justice system is not slow or flawed. It is a total failure.
Talk about any sector, be it civil or criminal, the justice system of Pakistan is a classic example of a rotten one. Once a journey for justice begins, the children of the person starting the journey would finally reach a conclusion. Only to be disappointed once the appellate court declares that the lower court had erred in law and passed the judgement on a misreading of the applicable principles of law.
Inordinate delays, lawyer strikes, incompetent trial judges coupled with no sense of responsibility are one of the major factors that contribute to the constant decay of our legal system. The ironic part is that the superior judiciary gets better each passing day and is busy re-writing the legal jurisprudence of our country. Yet, the trial courts, where the actual ball rolls, are on a constant descent. Most of the judges present in the lower judiciary lack the intellectual capacity to comprehend various principles of law and dispense justice accordingly. Simultaneously, the assistance rendered to them by most of the members of the legal fraternity is comical and conveniently placed. Principles and rules which may hinder a lawyer in getting the relief he seeks, will be down played and manipulated. Despite being officers of the court, they mostly do not fulfill their duty diligently and maneuver the proceedings in a way which suits them.
Ultimately, it is the constitutional duty of the superior courts to oversee day to day proceedings being conducted in the lower courts and arrange for continuous training sessions
The judges themselves lack training and expertise to deal with complex cases. Quite a few judges who actually have the capacity to dispense justice as it should be, have to face the wrath of the learned members of the bar. Especially those sitting in elected positions. Naked threats are issued to the judges if they refuse to cower down eventually resulting in the case of the judge being transferred. Similarly, certain judges are personally keen on indulging in face value of lawyers and delay a case of their own accord. I personally witnessed a judge hearing a case for seven months and ultimately once both sides had presented their arguments, the learned judge recused himself from the case for personal reasons. How convenient to waste seven months of the litigants with no accountability for such actions.
Then comes the tier of judges appointed to special courts. Under various different laws, a special court or tribunal is constituted to dispose of cases of that nature, speedily. Examples are banking courts, intellectual property tribunal and NAB courts, etc. The mandate of these judges is limited to the extent of the special law under which they are constituted. A banking court will only deal with matters pertaining to financial transactions which involve a bank and so on and so forth.
In order to deal with specialised forms of law, the judges being appointed to spearhead these courts should also be trained accordingly. Flawed interpretation of the special law under which they operate is what we have to witness regularly. A judge of the gas utility court once said to me that “the provision of gas to a citizen is a privilege”. Though the view of the superior courts was quite the opposite, but for the time being a litigant would face the wrath of the ‘privileged’ interpretation. The problem isn’t solely the judges themselves. Mostly, such incidents become the norm when judges adjudicating upon hardcore criminal matters are transferred to take up execution proceedings in a banking court or vice versa.
Ultimately, it is the constitutional duty of the superior courts to oversee day to day proceedings being conducted in the lower courts and arrange for continuous training sessions. Similarly, Austin’s command sanction theory should also be employed in order to make the learned judges work properly. The threat of being removed from office for poor performance would be enough for most of them to work. It needs to be instilled into the hearts of the judges that every stroke of their pen, each day, writes the fate of hundreds. Somebody is deprived of their rights whereas sometimes some are rewarded with what is rightfully theirs.
Even though members of the superior judiciary occasionally work towards introducing reforms for the sub-ordinate judiciary however, effective measures which would result into the justice system being revamped for the times to come, remains unheard of. Amendments in certain laws is also essential to partake in the provision of justice. Justicein its true sense is the only way forward for any society. It doesn’t matter if 10 convicts walk free, but what matters is that not even a single innocent should be incarcerated. Such is the importance of justice;
“O you who believe! Stand out firmly for justice, as witnesses to Allah, even if it be against yourselves, your parents, and your relatives, or whether it is against the rich or the poor…” (Quran 4:135)
