Pakistan’s Dysfunctional Judicial System

The Flower - Pakistan Monument at Night

There are two opposing views about Pakistan. The cynics dismiss it as a “failed state.” The other view holds that it has great potential and is on the verge of a major breakthrough. Depending on one’s perception, there are elements of truth in both. While cynicism is widespread in Pakistan, there is also great potential in the country. So what is holding it back?

Prime Minister Imran Khan has frequently talked about creating a state modeled on the Prophet’s state in Madinah. This is admirable and needs to be supported. To understand what the impediments are in creating such a state, it would help to understand the principles on which the Prophet’s state was founded.

Upon arrival in Madinah, one of the first acts of the noble Messenger (PBUH) was to promulgate the Covenant of Madinah (for details, see this writer’s book: Power Manifestations of the Sirah: Examining the Letters and Treaties of the Messenger of Allah, Toronto 2011). Referred to as the “first written constitution in the world,” it had several outstanding features. First, it introduced the concept of equal citizenship for all. Second, it established the principles of social and economic justice in society. Third, it made it obligatory for Muslims to defend the Islamic State and for non-Muslims not to commit treason by aligning with the enemies of the state. And finally, justice was established and guaranteed to all the constituents, irrespective of their social or economic status in society or their religion.

Any contemporary society that wishes to emulate the Prophetic model — and every Muslim society should — must fulfill these basic requirements to qualify as an Islamic state. This article will confine the discussion to the status of Pakistan’s judiciary and whether it is delivering justice to the people.

There is a well-known saying that “justice delayed is justice denied.” In Pakistan’s case, it is not only delayed and, therefore denied, but in many instances, the justice system is badly skewed in favor of the rich and powerful. There are 1.9 million cases pending before the courts. The new Chief Justice, Asif Saeed Khosa candidly admitted this on January 17.

The judicial system, like many other institutions in Pakistan, is riddled with corruption. Not only lawyers but many judges too are corrupt. In addition to inordinate delays, judges can easily be bribed to render judgments that are completely at variance with the truth.

Take a recent example. At the end of December, the government put a number of officials including politicians facing corruption charges on the Exit Control List (ECL) to prevent them from leaving the country. Chief Justice Saqib Nisar (now retired) took great offense. He thundered, how could the chief minister of Sindh province and other officials be placed on the ECL? Why not: can the chief minister not be a crook? Is the honorable ex-chief justice unaware of several former officials and bankers facing fraud charges that fled the country?

The real problem is that the judicial system is the legacy of British colonialism. It is meant to deliberately fail to deliver justice. Only the rich and powerful benefit from it. Again, the example of former Prime Minister Nawaz Sharif is instructive. He was convicted of massive fraud and abuse of state funds. He was sentenced to seven years in prison and a hefty fine but he got to choose his own prison: Kot Lakhpat Jail in Lahore. There, he is given a house with two bedrooms, a servant and a cook. Mughal Emperor Shah Jahan would have been envious! Why should a convicted felon and crook be given such facilities?

If PM Khan’s government is serious about creating a just society, one of its first priorities must be to reform the judiciary. To begin with, there is an urgent need to hire many more judges to clear up the backlog of 1.9 million cases.

Second, judges should stick to their profession and not stomp around the country delivering campaign-style speeches. No matter how noble the cause, it is not the judges’ job to be inspecting hospitals and schools; they should concentrate on cases pending before the courts and deliver justice.

Third, with a massive backlog, it is obvious that the judicial system is unable to deliver speedy justice. Almost invariably, the poor and weak suffer as a consequence. If there are 1.9 million cases pending, it is safe to assume that twice as many or more have not been registered because people have no faith in the system.

Unless the judicial system is reformed on a priority basis, talk of establishing a Muslim welfare state based on the Prophetic model would remain just that: talk. Talk is cheap; delivering justice requires much greater effort.