Pakistan inherited its judicial system from the former British Colony of un-partitioned India. Soon the common law, which was the foundation of Pakistan’s legal structure, created controversy between the clerics and the shambolic leadership, throwing the populace into chaotic perplexity.
This was brought about by legislation passed by the Constituent Assembly as far back as 1949, entitled: The Objective Resolution. This legislation forms the basic law of Pakistan and the country’s Constitution acknowledges and establishes Islam as the State Religion and makes the legislation (Objective Resolution) a substantive part of the Constitution.
Making Islam the State Religion in the 1973 Constitution and the insertion of Article 2A by P.O. 14 of 1985, commonly known as the 8th Amendment, catapulted the legal system into a flux.
“Islamic law forms part of Pakistan’s legal framework and its status is guaranteed by the Constitution, which requires that legislation be in compliance with the injunction of Islam as laid down in the Koran and the Sunna.
Although Islamic law represents a vast body of jurisprudence spanning over 1,400 years, it is not fully codified, and can be therefore subject to different interpretations. Such interpretations may create ambiguity and represent a real challenge for enforcing the rule of law and respecting the principle of legality.
Conflicts have also arisen regarding the hierarchy of Islamic law and provisions of the Constitution, particularly in relation to fundamental rights.
The application of the common law through the hierarchy of the conventional court framework provided in Part VII of the Constitution stands traversed by Chapter 3A of that Part.
In a recent judgment by the Federal Shariah Court on the Women Protection Act 2006 relying on Articles 203D & 203DD, the Court has inter alia declared Sections 11, 24, 25, 28 and 29 of the Women Protection Act to be in violation of the Quran and Sunnah. The case of Abdul Latif Safi v/s the Federation of Pakistan and others sufficiently amplifies the supremacy of the Shariah Courts over the conventional courts.
The structural flaws in the drafting of the original Constitution of 1973, which was further damaged by General Zia ul Haq’s intrusion into the constitutional scheme by the 8th Amendment, has irrevocably impacted Part 2 Chapter 1 of the Constitution, which guarantees Fundamental Rights.
The dual character of the justice system of Pakistan, at the same time Islamic and Common law, has seriously affected the fundamental rights such as the right to life, women’s rights, freedom of expression, child rights and the right to education.
The Shariah court has also stayed the land reforms since 1980. Not even the Supreme Court and High Courts have the right to intervene and vacate the stay order.
The appeal against the Shariah court’s stay order has also been pending before the Supreme Court since 2007 but this Court cannot reach a decision due to expected, and most likely violent, retaliation from the fundamental forces.
The existence of the notorious blasphemy laws is purely due to the Shariah laws which have proved to be the basis for bigotry, religious extremism and sectarian and communal violence in the country.
The Shariah laws do not allow equal treatment for women, particularly in cases of Qisas and Diyyat, and also force the government not to pardon the death row prisoners, whose numbers have now reached 9,000. These convicted prisoners have been waiting since 2009 to learn their fate.
The rights of women are severely reduced and denied.
Unfortunately, the role of the superior court judges that interpret them further erodes these rights. The cultural and social biases of the judges dominate the law, making their interpretations of rights discriminatory. Whether it is the case of Mukhtaran Mai, a victim of gang rape, or the forced conversion of women from the religious minority community, the courts continue to lean towards a partisan, gender-based view.
In the case of Rinkle Kumari, a 17 year-old Hindu girl who was forcibly converted to Islam, she pleaded helplessly to the Chief Justice that she wanted to return to her mother. The same plea was made by Dr. Lata (another Hindu young woman who was forcibly converted to Islam) as was acknowledged by the Chief Justice in the court after her in-camera statements. To quote the Chief Justice, “Rinkle wants to go with her parents while Dr. Lata is double minded”. This comment was reported by various TV channels and newspapers and has never been denied by the Honourable court. The reports continued, “After three weeks, Rinkle was produced in the Supreme Court on April 18 where she was not allowed to talk before the order was dictated and she was directed to the Registrar’s Office asking her to state her willingness to go with either of the parties. Here comes the problem. How did the court determine that she is ‘sui juris’? Her birth certificate clearly shows her to be less than 18 years of age. How did the court determine that she has embraced Islam without any coercion? There was no cross-questioning allowed by either of the counsels. No counsel was allowed to even speak.”
Yet another critical and near fatal situation is the recent trend of the Supreme Court to take over the supervision of cases while they are in the investigative stage. In effect, the action of supervising investigations goes against all established principles of law and natural justice. In no jurisdiction such actions are taken up by the Courts. This trend is seriously cutting across the very logic of judicial review.
Even though the actions of a dictator were undone by the movement for restoration of judges, and the judiciary institutionally became “independent”, this term has been misconstrued by the Courts that interpret it as “sovereign”.
Independence, no doubt remains an integral to the rule of law, but independence can by no stretch of imagination viewed holistically as the only component of the rule of law.
By claiming independence, the Courts cannot move out of the orbit of the state institutions and claim supremacy over them. Such assertions only undermine the principles of good governance and constitutionality, the separation of powers.
The Courts must be independent in delivering judgments while scrutinizing executive actions and the legislation on the anvil of the constitution, but they are beyond securing and protecting the fundamental rights as enshrined in Article 7 of the Constitution of Pakistan, which remain part of the state.
In constitutional petition Nos. 10 and 18 of 2011, Munir Hussain Bhatti and others v/s The Federation of Pakistan, the decision of the Parliamentary Committee to reject the nomination of six (6) Additional Judges was challenged by the aggrieved Judges. The Supreme Court, in its Order dated March 4, 2011, was of the view that the Parliamentary Committee had usurped the Constitutional Jurisdiction of the Commission in passing judgment on the professional caliber and legal acumen of the said judicial nominees, which is the exclusive domain of the Commission.
The Court held that the reasons to be recorded by the Committee for the rejection of a nomination were justiciable and that in this case they were irrelevant, unjustified and improper under the law and without legal force. The decision of the Parliamentary Committee was set aside and the Federation was directed to issue necessary notifications for the appointment of the judicial nominees.
By holding that the decision of the Parliamentary Committee was justiciable, the Supreme Court made Article 175-A redundant and refused the basic matrix of a democratic setup of checks and balances. It further went on to refuse its auditing by the Parliamentary Committee, thus eroding balance of governance in Pakistan.
Since 2009 the Supreme Court has not done much work on general litigation but focused mainly on political cases, thereby causing itself to become controversial. In this gamut the Judiciary has loosened its discipline on the advocates who now form the main constituency of the judiciary. The incidents that are coming to light in which lawyers have been found to be manhandling subordinate court judges, the staff, police and prosecutors, are raising alarm.
The quality of advocacy and cases of serious misconduct have become question marks on the future of the judicial institution. Nothing seems to affect the wisdom of the Superior Courts.
The new judicial jurisprudence evolving in Pakistan is viewed by many with concern as the manner in which the superior courts are acting is having serious consequences on the subordinate judiciary.
The common litigant, who run in hundreds of thousands, are hostages of the judges, who are in turn being forced to deliver in order to dispose of cases without giving due consideration to the law and principles of justice.
This is further aggravated by the unruly and unethical conduct of the advocates, who are virtually beyond the reach of law.
Since 2009, to unnaturally refute the reality of litigation, the Supreme Court and the high courts are coercing and pressuring the subordinate judges to dispose of cases without adhering to legal procedure. The reality remains that there is a backlog and cases are jammed in the lower courts.
It is about time that the concerned authorities in Pakistan:
a. Take all appropriate steps on an emergency basis to speed up the reforms at the lower judiciary so that justice is provided to the millions of people who have been waiting for many years for the decisions on their cases and people regain faith in the judicial system;
b. Take genuine steps to eradicate corruption, which is prevalent at every level of the judicial system, and the ALRC also urges the international community to help to combat corruption through its own mechanisms and to monitor it independently;
c. Abolish Shariah laws so that human rights, rule of law and democracy co-exist and prevail in the country;
d. Initiate and ensure forums and discussions so that the question of the independence of the judiciary and the role of the advocates are openly discussed with full participation of civil society and victims.