Judicial reforms can make a difference to Pakistan society

Pakistan's higher judiciary should strike down all laws that discriminate on the basis of faith and gender, as unconstitutional, if the government fails to repeal them.

By Waqar Mustafa (Wide Angle)

Published: Sun 31 Mar 2019, 9:14 PM

Last updated: Sun 31 Mar 2019, 11:18 PM

A top judicial policy panel in Pakistan has come up with a raft of measures that it envisages will help the 4,100-strong judiciary clear the country's largest backlog of about two million cases.
Such a large backlog of cases in a country erodes individual and property rights, chokes private sector growth, and, in certain cases, even violates human rights.
"Delays affect both the fairness and the efficiency of the judicial system; they impede the public's access to the courts, which, in effect, weakens democracy, the rule of law and the ability to enforce human rights," says Maria Dakolias, author of a study, "Court performance around the world: A comparative perspective".
Prisons across the country have put up 57 per cent more inmates than their capacity with two-thirds of them either awaiting or undergoing trial, according to a recent National Counter Terrorism Authority report. In many instances, prisoners have been acquitted after suffering in jail for years. Ghulam Sarwar and Ghulam Qadir, brothers, had been executed a year before the Supreme Court pronounced them innocent in October 2016. Also in the same month then, the court exonerated a man who was convicted of murder and handed down the death sentence by a sessions court in April 2004. But the acquittal came two years late. Mazhar Hussain, whose original appeal against the death sentence was turned down by a high court years before, died of coronary failure about two years ago while still in incarceration. Even the apex court was unaware that the appellant had died in prison. Hussain's exoneration came about 19 years after he was accused of murdering Muhammad Ismail in May 1997. Also, Mohammad Anar and Mazhar Farooq were acquitted by the apex court after having endured 24 and 11 years in prison respectively. Cases continue piling up because of insufficient human resources; shoddy management of cases; outmoded court procedures; faulty police investigations, also resulting in low-conviction rate of five to 10 per cent; and corruption, particularly in the lower courts.
To cut down the pile, the National Judicial Policy Making Committee (NJPMC) on March 11 mandated police complaint cells, instead of courts, to decide on applications against police not registering first information reports. Working under a previous code, district courts dealt with 614,307 and the high courts, 47,029 applications seeking direction for the police to register their complaints in the last two years. Since January this year, the police redress centres have disposed of 25,426 complaints.
The NJPMC also allowed a cell to monitor and evaluate proceedings at model criminal trial courts to be set up in each district for dispensing expeditious justice.
A seven-member bench is to determine the definition of 'terrorism' and the cases that fall under it to reduce the burden on the country's anti-terrorism courts. However, the country needs to go for more reforms. According to Crisis Group Asia, it should repeal all discriminatory laws; ensure protection of witnesses, investigators, prosecutors and judges; address over-crowding in prisons through reformed bail laws and sentencing structure for non-violent petty crimes to include alternatives to imprisonment such as fines and probation, and provision of free legal aid to remand prisoners who cannot afford counsel; strengthen law enforcement by public support, political sanction and provision of human and fiscal resources and training of personnel in scientific investigation and prosecution of cases; strengthen the criminal prosecution services and police-prosecutor coordination; and commit to ending all deviations from the rule of law and constitutionalism.
Pakistan's higher judiciary should shun short-term solutions for speedier delivery and work towards establishing a justice system that respects the separation of powers enshrined in the constitution by limiting the Supreme Court's use of suo motu powers to extreme cases of fundamental rights violations. It should strike down all laws that discriminate on the basis of faith and gender, as unconstitutional, if the government fails to repeal them. Alternative dispute resolution methods could be integrated to reduce backlog. For a greater respect for the rule of law, confidence in the judiciary, and legal protection of human rights, Pakistan needs to make the reforms soon for a just society.
Waqar Mustafa is a print, broadcast and online journalist and commentator based in Lahore, Pakistan

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