A well-functioning judiciary is the crucial organ of the state which not only enhances its prosperity but is also considered as the backbone of any country.

The judiciary holds a legal framework to interact with the country’s rule of law, democracy, governance, security, economic growth, and equity. Moreover, the judiciary plays a pivotal role in the economic and political life of the country. The judiciary, particularly the Supreme Court of Pakistan, enjoys unfettered powers under the constitution. Therefore, “Judiciary has pervasive influence on many aspects of the daily life of a citizen”- Ishrat Husain

According to the 1973 Constitution, Pakistan’s judiciary is a tier system. At the apex level is the Supreme Court. There are five High courts in all provinces and Islamabad. Similarly, district courts are in third place. Furthermore, the Supreme Court has law-making authority in the legal framework and supervises all other courts in Pakistan.

As per the Constitution of 1973, it is entrusted with the interpretation of the Constitution. It is empowered over the question of public importance concerning the enforcement of fundamental rights, enlisted in the constitution from Article 8 to Article 28. 

If history be the guide, Pakistan’s judiciary remained between the highs and lows of the political developments. However, its role in the constitutional and political history of Pakistan always persisted with controversies.

In the early period of the 1950s, the Supreme Court endorsed the doctrine of necessity by upholding the dissolution of the first constituent assembly in 1954 and legalized martial law and constitutional amendments by military rulers. In the 1960s, the Presidential setup limited its powers and compromised its independence.

Later on, in 1972, the Supreme Court of Pakistan declared all actions of the military rulers null and void. But, in 1977, the apex court altered its precedent and endorsed Zia’s martial law. Similarly again, in 1999, the top judiciary backed military intervention in elected government. Likewise, in 2007, General Musharraf declared an emergency and the Supreme Court suspended the emergency, as a result of the lawyers movement started throughout the country. 

In brief, the judiciary in Pakistan also carries certain loopholes in its constitutional role, governance, legal profession, and access to justice.  Excessive displays of judicial activism and suo-motu actions have impacted the national economy badly, e.g. a large number of petitions are filed against the government’s initiatives and projects, which have dire economic consequences (Ishrat Husain).

In addition, the intervention of the judiciary in the process of privatization of ‘State-Owned Entities’ (SOEs), Pakistan Steel Mill (PSM), is an evident case.

Consequently, there is a debate about the procedures of appointment and accountability of judges. Currently, judges and military officials do not fall in ‘The National Pay Scale category and are exempted from ‘The National Accountability Bureau’s (NAB) jurisdiction.

Also, the incapacity of the ‘Pakistan Bar Council (PBC) to regulate the legal profession has become a serious issue in the judicial system. The behavior of lawyers towards judges, the politicization of PBC, and unethical practices of case conduct are major hurdles in the judiciary.

Similarly, Ishrat Husain wrote in his book ‘Governing the Ungovernable that “Access to Justice is a worsening problem for the poor. Influential people use the court to settle their disputes while police and court become obliged to harass the poor”. Moreover, he said, ‘Poor people face difficulties in registering a case due to police seeking a bribe”.

This situation needs fathom. Pakistan ranked 130th out of 142 in the ‘Rule of Law’ index according to World Justice Report. Women’s access to justice in Pakistan is poor, according to the World Bank.

The importance of the judiciary lies in, that it ensures the rule of law within the country, it is a pre-requisite of democracy, it safeguards the fundamental rights of the citizens, and it is crucial to a market-based economy.

Reforming the judiciary makes sense for Pakistan. As Justice Douglas is on record as having said, “Law reaches its finest moment when it frees men from the unlimited powers of the officials”. Ishrat Husain in his book has suggested some measures to reform judicial functions.

Firstly, updating all acts and laws of economic activities such as the Land Revenue Act, Tenancy Act, Stamp Act, and Contract Act, and all others because these acts were made in the 19th and 20th centuries. These acts and laws are defective and do not meet the current needs and demands. Therefore, updating the acts would help the judges in making the decisions on time and surely, it would reduce the volume of pending cases.

Secondly, a large number of defective decisions are delivered because of the inability of judges and lawyers. Therefore, to deal with the capacity and specialization of the judges and lawyers, experts should be invited to help the court in technical matters. Specific courts for specific cases and appointment of the judges based on their capacity would make the justice speedy.

Thirdly, introducing the time-fixture system for the resolution of conflicts without delays is the best policy. For example, banking, income tax, and property cases should be decided within six months. According to a World Bank report, in Pakistan, 1070 days are required to settle a commercial case. It comes to the sense of justice delayed means justice denied.

Fourthly, the effective functioning of small cause courts and village mediation courts can reduce the existing congestion in courts and also provide access to justice at very little cost.

Last but not least, the Supreme Court is a well-placed forum to take a lead in reforming the judiciary. National Judicial Committee should be enacted, which comprises the Chief Justices of all high courts, presided over by the Chief Justice, for the formulation, design, and implementation of all these reforms. Moreover, strict supervision of the lower courts and penal action against non-performers should be institutionalized actively.

To conclude this with the saying of former CJ Asif Saeed Khan Khosa, judges earn respect from society because they decide their matters. Reformations in the judiciary, if implemented, can make the judiciary a major contributor towards good governance.

Besides, the legislative organ and the executive can also design such an environment to facilitate the judiciary where the true essence of the judiciary could be achieved by ensuring the independence of the judiciary and the security of the tenure of the judges.

Reforms in the judicial system are mandatory to ensure fairness and smoothness in its functioning. A speedy justice will not only provide hope and inspiration but also construct an effective legal structure for the nation.

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