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Judicial reforms

Updated June 30, 2018

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IT is a welcome and frank admission that could set the right precedent for all institutions, many of which are loath to admit any fault or shortcoming on their part.

On Thursday, Chief Justice of Pakistan Saqib Nisar observed during a hearing that the superior judiciary had been unable to reform the judicial institution. The judicial activism of Chief Justice Nisar in recent times has drawn a mixed reaction, but it has also helped shine a spotlight on the enduring deficiencies of the justice system in the country.

Without doubt, the judicial process needs significant reform, and a process must begin of not just identifying the flaws and problems in the justice system but recommending sensible and implementable solutions.

Indeed, the judicial activism of the superior judiciary has helped expose the many deficiencies in the overall judicial system: a well-functioning system that provides justice at the grass roots should not require high court and Supreme Court judges to arbitrarily intervene on behalf of petitioners and litigants.

Yet, if sensible reforms are to be suggested and implemented, the legal community will need to address tensions between the lower and superior judiciary, and the bar and bench too.

A hard-hitting resolution passed by the Karachi Bar Association ostensibly in protest against Chief Justice Nisar’s alleged disparagement of an additional district judge in Sindh has laid bare acute tensions in the legal community. It is possible to interpret the tension as the inevitable result of an activist court that is seeking to put right much in a flawed judicial system.

But the superior judiciary may want to reflect on the growing criticism directed at it from many independent quarters. While disruption can be good for moribund institutions, the many interventions that superior court judges have made in recent times have created a decidedly mixed record.

While populism can be one measure of judicial success — and by that measure, the current superior judiciary would appear to be doing tremendously well — the judicial institution the world over has been built on clear rules, good laws and sound precedent.

The most effective judiciaries are in jurisdictions where the apex courts consistently interpret the law and coordinate their efforts with the executive and the legislature. At the very top, the judicial institution is neither flashy nor arbitrary. It is apparent that the superior judiciary in Pakistan, not least Chief Justice Nisar, is keen to deliver a better quality of justice to the people of Pakistan.

What is lacking, if the superior judiciary will permit a positive-minded critique of recent events, is a systematic plan and consistency of action. The unfortunate episode with a lower court judge in Sindh could be a turning point for all concerned. While its authority must be respected, it is advisable that the apex court approach its interventions and the task of reforms more cautiously.

Published in Dawn, June 30th, 2018