In the court of ...

Pakistan Observer - - IN­TER­NA­TIONAL -

to ful­fil vested in­ter­ests.

And it is im­pos­si­ble not to join him in lament­ing that the court de­ci­sions an­nounced for the wel­fare of the peo­ple were sel­dom im­ple­mented. Giv­ing an ex­am­ple, Ja­mali said if the court takes ac­tion against any in­ca­pable per­son, a cer­tain lobby al­ways comes to his res­cue. This has been hap­pen­ing in this coun­try al­most since the very be­gin­ning bar­ring the few early years. We agree with him whole heart­edly that “We should not wait for an­gels to come down and solve our prob­lems. Some­body amongst us has to vol­un­teer.” But then we have had a num­ber of vol­un­teers as well who tried to set the na­tion on the ‘ right’ course but failed mis­er­ably.

It is per­haps time for ev­ery in­sti­tu­tion in this coun­try in­clud­ing the leg­is­la­ture, the ex­ec­u­tive, the ju­di­ciary, the civil ser­vice and the armed forces to take close and deem look within and try to im­prove its lot by pulling it by its boot­straps in­stead of tak­ing the easy out by point­ing an ac­cusatory fin­ger at other in­sti­tu­tions. It in this spirit that one fer­vently hopes that the CJ would also on some ap­pro­pri­ate oc­ca­sion deem it fit to re­count the fail­ings of the coun­try’s ju­di­ciary as well at all the three im­por­tant tiers ( Su­pe­rior, pro­vin­cial and dis­trict).

These flaws within the ju­di­ciary it­self have been to a large ex­tent re­spon­si­ble for turn­ing the dreams of the found­ing fa­thers into an un­end­ing night­mare. Cor­rup­tion in the ju­di­cial sys­tem of Pak­istan is not a nascent phe­nom­e­non. In a sur­vey as­sess­ing the public per­cep­tion of the na­ture and ex­tent of cor­rup­tion in Pak­istan in 2010, 69% of the re­spon­dents were sub­jected to an act of cor­rup­tion while in­ter­act­ing with the ju­di­cial sys­tem. Most of the cor­rup­tion cases stem in the lower courts where bribery and black­mail are nor­mal rou­tine mat­ters for lawyers as well as clients, and very lit­tle is done to counter such de­cay. In 2002, in a re­port ti­tled “Na­ture and Ex­tent of Cor­rup­tion in the Public Sec­tor”, Trans­parency In­ter­na­tional ( TI) Pak­istan re­ported that the high­est amounts of bribery were spent on peo­ple af­fil­i­ated with the ju­di­ciary. Later in 2010, TI Pak­istan pre­sented a break­down of the var­i­ous ac­tors in the ju­di­cial sys­tem in­volved in cor- rup­tion. A ma­jor­ity of the par­tic­i­pants re­ported that they, or some­one in their house­hold, has been sub­jected to an act of cor­rup­tion while in­ter­act­ing with some­one from the ju­di­ciary. When asked of the ac­tors in­volved, 33.62% peo­ple said court em­ploy­ees, 23.73% said public pros­e­cu­tors, 14.12% said wit­nesses, 12.43% said judges, 8.19% said op­po­nent lawyer, 4.52% said mag­is­trates while 3.39% men­tioned oth­ers. One won­ders how this mas­sive cor­rup­tion in the lower ju­di­ciary has been go­ing un- no­ticed by the higher ju­di­ciary. Or could it be that the higher ju­di­ciary’s com­pla­cency in fact re­flected a de­gree of its com­plic­ity?

In a 2011 sur­vey, TI Pak­istan iden­ti­fied ju­di­ciary as the most cor­rupt in­sti­tu­tion in Pak­istan along­side po­lice. https:// en. wikipedia. org/ wiki/ Cor­rup­tion_ in_ Pak­istan - cite_ note- 57 A mem­ber of the Sindh Bar Coun­cil had al­leged that nepo­tism and cor­rup­tion were “ram­pant” in the lower ju­di­ciary, par­tic­u­larly high courts and the lower courts, where peo­ple were un­law­fully pro­moted within the ju­di­ciary.

The ram­pant na­ture of cor­rup­tion in Pak­istan ju­di­cial sys­tem has al­ways been a source of hu­mil­i­a­tion for Pak­istan since its in­cep­tion over 69 years ago. This sys­tem has al­ways groaned un­der the pres­sure from po­lit­i­cal lead­er­ship. But at times it has pil­lo­ried the politi­cians at the be­hest of mil­i­tary dic­ta­tors op­er­at­ing up front but at times by pulling strings from be­hind.

Ac­cord­ing to Free­dom in the World 2013 re­port, the ju­di­ciary in Pak­istan is re­garded as one of the in­sti­tu­tions most plagued by cor­rup­tion, par­tic­u­larly in re­la­tion to the lower courts. Fur­ther­more, busi­ness ex­ec­u­tives sur­veyed in the Global Com­pet­i­tive­ness Re­port 2013- 2014 in­di­cate that the ju­di­ciary is sub­ject to po­lit­i­cal in­flu­ences of mem­bers of govern­ment, cit­i­zens and com­pa­nies. Hence, com­pa­nies should take note that con­tract en­force­ment can be prob­lem­atic due to an in­ef­fi­cient court sys­tem and a lack of trans­parency, as re­ported in the In­vest­ment Cli­mate State­ment 2013. Ac­cord­ing to a pa­per pub­lished in 2010 in the Pak­istan Eco­nomic So­cial and Re­view, cor­rup­tion in the ju­di­ciary has the abil­ity in Pak­istan to frighten off do­mes­tic and for­eign in­vest­ments due to fear of usurpa­tion or mis­ap­pro­pri­a­tion.

The Trans­for­ma­tion In­dex 2014 re­ports that po­lit­i­cal in­ter­fer­ence is of­ten found in the leg­isla­tive and ju­di­cial branches of Pak­istan. Law for­ma­tion usu­ally by­passes Par­lia­ment, and the higher courts have of­ten been in­flu­enced by po­lit­i­cally mo­ti­vated judge­ments. The pro­ce­dure for se­lect­ing na­tional- level judges is re­quired to be made more trans­par­ent by law.

We can only ig­nore at our own peril the sor­did way the doc­trine of ne­ces­sity was mis­used by our su­pe­rior ju­di­ciary to win favours of the mil­i­tary dic­ta­tors. Jus­tice Mu­nir, Jus­tice An­warul Haq, Jus­tice Rafiq Tr­rar, Jus­tic Sa­j­jad Ali Shah, Jus­tice Iftikhar Mo­ham­mad Chuadhry and many of their ilk who had oc­cu­pied the coun­try’s top ju­di­cial slot at one time or the other are known more for their po­lit­i­cal judg­ments than their ju­di­cial rul­ings. And oth­ers like Jus­tice AR Cor­nelius, Jus­tice Hamoodur Rehman, Jus­tice Fakhrud­din G Ebrahim, Jus­tice Dorab Pa­tel and even Jus­tice Sam­dani have been known to have kept their po­lit­i­cal self out of their ju­di­cial work.

And Ma­lik Muham­mad Kayani also known as MR Kayani or Jus­tice Kayani, though not el­e­vated to the Supreme Court be­cause of his open crit­i­cism of Ayub Khan’s regime was a ju­di­cial star in his own right. He served as Chief Jus­tice of West Pak­istan from 1958 to 1962. On his in Oc­to­ber 1962 the cit­i­zens of La­hore ar­ranged a farewell re­cep­tion in his hon­our in which he was named as LisanePak­istan ( the voice of Pak­istan). In his re­ply, Kayani said that this ti­tle was dearer to him than Nis­han- e- Pak­istan. Then he went on to say that his pur­pose in de­liv­er­ing such satir­i­cal speeches was to keep the morale of the peo­ple high in a pe­riod of gloom and dark­ness. He made the peo­ple laugh in or­der to re­lease their ten­sion. In one of his more mem­o­rable com­ments he wrote: There are quite a few thou­sand men who would rather have the free­dom of speech than a new suit of clothes and it is these that form a na­tion, not the of­fice hunters.

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