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Open Access Journal of Criminology Investigation & Justice Research Article 30 min read

Justice Derailed: Navigating the Turbulent Waters of Pakistan’s Judiciary through the Ages

Gondal AQ*
* Corresponding author
ISSN: 3064-7940  10.23880/oajcij-16000107  Received: December 06, 2023  Published: January 23, 2024
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Keywords
Judicial System Legal Analysis Judicial History Constitution Corruption Public Opinion Prosecution-Police Judicial System Record Management System
Abstract

The judicial system in Pakistan has a rich historical evolution spanning over a millennium, including significant epochs like the Hindu era, Muslim period, British colonial rule, and post-independence developments. The objective of this paper is to understand the complexity and shortcomings that have defined Pakistan's legal system by comprehensive and critical analysis of the country's judicial history. With a focus on Pakistan's early years of independence, it sheds light on the difficulties to build judicial independence and a strong legal framework by delving into the historical growth of the judiciary and drawing inspiration from influential publications. The research methodology is multifaceted and combines legal analysis, historical research, and critical assessment to identify the underlying causes of the perceived shortcomings in Pakistan's judicial history. Using this historical basis, the study has critically examined the situation of the judiciary today, placing a strong emphasis on constitutional analysis to highlight the discrepancy between the goals of the constitution and their actual application. The research contributes to a more nuanced understanding of the difficulties facing the judiciary by identifying anomalies and flaws in the decision-making process through the examination of major cases. It calls a thorough examination given to sociological viewpoints, practical difficulties, judicial corruption, public opinion, and the function of technology. As a result, this paper offers a forward-looking viewpoint and lays the groundwork for upcoming conversations and initiatives targeted at changing Pakistan's legal system.

Introduction

Pakistan’s judicial history is a complicated mosaic made up of political interventions, constitutional upheavals, and attempts to establish an administration that respects the rule of law and justice. Under the heading “Unravelling Justice: A Critical Examination of Pakistan’s Judicial History and its Failures,” this paper sets out to analyze the complexities of the Pakistani legal system, illuminating its historical development and the underlying obstacles that have prevented it from operating effectively. This paper aims to unravel the layers of Pakistan’s judicial system, providing insights into the successes and, perhaps more importantly, the failures that have shaped its role in the country’s socio- political landscape. It will do this by critically examining the historical trajectory, constitutional developments, and significant legal decisions [1].

Pakistan’s fight for independence and subsequent attempts to create a constitutional framework are closely linked to the nation’s judicial history [2]. The judiciary has battled concerns of independence, legitimacy, and the fine line between sustaining the rule of law and managing the complexities of political exigencies since the early years, when colonial legal structures predominated, until the occasional martial law interventions. The present situation of Pakistan’s judicial system will be examined in this article, along with the ways in which these historical processes have shaped current issues [3].

From the very inception of the evolution of state from tribal to oriental empire then it enters into the new era of the Greek city states and subsequently its rapid growth turned into the form of Roman world empire and very next is step forwarded in another epoch of the feudal state and in the end it is going through the phase of modern nation states in these all system of states the one of the pillar of state has always been pertinent is the judicial system of the each state [4]. Each from of state had its own judicial system in according with its necessity and need so as far as it was concerned [5]. And as hurry as the world is developing the states of world arguing and giving impetus to the development of their own system of judiciary since there is dire need is being observed across the world to reform the judicial structure and its administrative working for the quick disposal of cases and smooth and transparent transmission of justice. But in the recent era of judicial reforms what Pakistan has done to sooth its own judicial structure? Whether it is working efficiently or not? What is ratio of disposal of cases and how judicial mind is being exercised by the members of judicial colony? [6].

The three millennia that make up the Hindu era are 1500 BC–1500 AD. The majority of the fragmented sources used to compile the scant information on the Hindu judicial system are the ancient texts Dharamshastra, Smiritis, and Arthashastra, as well as the historical and legal scholars’ commentary on them. These texts provide a clear framework for the Hindu legal system’s [7]. While, the early Muslim monarchs and the Mughal era are the two main periods of the Muslim era in the Indian subcontinent, which started in the eleventh century A.D. Under the Mughals, an organized system of justice administration was created throughout the country. Islamic law was a major factor in resolving criminal and civil conflicts throughout this period, but native customs and traditions also had influence on non-legal issues. Moreover, with the authority granted by the Charter of 1623, the East India Company set up its own courts to hear disputes involving its English workers. Hence, Pakistan kept the Government of India Act 1935 as a temporary constitution after obtaining independence [8].

The concept of justice in Islam is deeply rooted in the teachings of the Quran and the Prophet Muhammad (peace be upon him). The Quran emphasizes the importance of justice, stating that Allah sent his messengers with clear signs and the Book to establish justice among people [9]. The judicial system in Islam, known as Al-Qaida’, plays a crucial role in upholding justice. It is seen as a guarantee for applying a just system of regulations and preventing disorder in social affairs. Al-His bah is an important aspect of the Islamic legal system, involving the enjoining of what is right and the forbidding of what is wrong. The His bah works in conjunction with government agencies to maintain a just and moral society, allowing individuals to fulfill their purpose of worshipping Allah. Overall, the Islamic legal and judicial system places a strong emphasis on justice, accountability, and the welfare of all members of society [10].

The Pakistani constitution covers the higher judiciary rather thoroughly and includes detailed regulations regarding the makeup, authority, and duties of these courts. The “separation of judiciary from the executive” and the “independence of judiciary” are guaranteed under the Constitution. It places a duty on the higher courts to “preserve, protect, and defend” the constitution [11]. There are two types of courts in Pakistan’s hierarchical legal system: the upper, or bigger, and the subordinate, or lower. The superior judiciary of Pakistan is made up of the Federal Shariah Court, five High Courts, and the Supreme Court, which is ranked highest. The superior judiciary in Pakistan has consistently failed to protect the constitution and has not only failed to reject Islamic legislation that breaches fundamental liberties, but has also been driven by self-preservation and self- interest. Although maintaining judicial independence will also help to enhance democracy at a time when deteriorating conditions for law and order are undermining it [12].

The judiciary also provides a mechnism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make statutory law or enforce law, but rather interprets law and applies it to the facts of each case [13]. However, the judiciary does make common law, setting precedent for other courts to follow. This branch of the state if often tasked with ensuring equal justice under law. In many jurisdictions the judicial branch has the power to change laws through the process of judicial review. Courts with judicial review power may annul the laws and rules of the state when it finds them incompatible with a higher norm, such as primary legislation [14].

As the criminal justice system in Pakistan faces significant flaws that have eroded public confidence and hindered the effective delivery of justice. This system comprises the police, prosecution, and judiciary, but its outdated and ineffective nature has allowed influential and wealthy individuals to secure acquittals even after committing serious offenses. Loopholes within the system further exacerbate these issues, discouraging educated segments of society from seeking justice through official channels [15].

The need for a critical analysis stems from the judicial system’s shortcomings, which include problems with the protection of fundamental rights, claims of corruption, and delays in the administration of justice. This article tries to provide a detailed understanding of the issues that have undermined Pakistan’s justice system by closely examining major decisions, constitutional amendments, and the changing role of the judiciary in forming legal and political landscapes. In addition, it aims to assess how the judiciary has responded to changes in society, legislative actions, and demands for justice. This provides a thorough understanding of the complex interactions between politics, law, and society expectations in the Pakistani environment [16].

This study aims to add to the current discussion on legal reforms and the pursuit of a more resilient, open, and responsive judicial system by traversing the complexity of Pakistan’s judicial history. It aims to provide insights into possible paths for development, reform, and the realization of a justice system that is consistent with the values of justice, equity, and the rule of law by critically analyzing the mistakes and achievements of the past.

Literature Review

The paper “Unravelling Justice: A Critical Examination of Pakistan’s Judicial History and its Failures” includes a literature review that offers a thorough examination of previous research, legal interpretations, and pertinent historical narratives.

Scholars like Khan, et al. [14] investigate the constitutional and political reasons that shaped the judicial system’s establishment and provide insights into the early evolution of justice in Pakistan. They also study the historical setting of Pakistan’s judiciary.

Works like Mustafa, et al. [17] offer a forward-looking perspective on resolving the acknowledged shortcomings in Pakistan’s judicial history while also offering insights into planned improvements. This thorough method lays the groundwork for the remaining portions of the study, which will critically and nuanced examine Pakistan’s judicial history and its shortcomings.

Scholars like Zaidi, et al. [18] investigate public opinion and trust in the court, providing insight into how societal attitudes and perceptions might affect the efficiency of the legal system. This enhances the literature evaluation significantly by taking the social ramifications of judicial errors into account.

Scholars like Rahman, et al. [19] who critically examine the systemic issues that fuel corruption and its effects on the rule of law, delve into discussions on corruption inside the court. This feature adds to the more comprehensive analysis of the court system’s shortcomings.

Qureshi, et al. [20] is an example of legal study that critically assesses significant judgments and court rulings to determine how they have affected the evolution of Pakistani jurisprudence. In the process of shining light on the complications the judiciary has faced over the years, this scrutiny seeks to find patterns, discrepancies, and places for improvement within the decision-making process.

Research on the application of technology in the court, as demonstrated by Ali [21] work, provides insights into the possible advantages and difficulties of modernizing the legal system. Gaining an understanding of the technology components is helpful when discussing ways to improve accessibility and efficiency.

Works such as Ahmed [22] and Hussain, et al. [1] incorporate the sociological perspective on justice. These academics contribute to our understanding of the difficulties the judiciary faces in administering fair and unbiased justice by providing insights into the interactions between societal dynamics, political pressures, and cultural elements and the judicial process.

Research like Malik [23], which evaluate the judiciary’s performance in providing prompt and equitable justice, contribute to the evaluation of judicial efficacy and efficiency. These studies provide factual understanding of the judicial system’s workings and how they affect the administration of justice as a whole.

The literature analysis is further strengthened by comparative studies, including Jackson, et al. [24] work, which contrast Pakistan’s legal past with global best practices and experiences. This global viewpoint enhances our comprehension of the opportunities and difficulties facing Pakistan’s court by offering insightful information on possible reform and development models.

An essential component is constitutional analysis, of which Ahmed, et al. [25] offers a thorough analysis of the Pakistani Constitution. This seminal work contributes to the theoretical framework for comprehending the judiciary’s role within the governance structure by clarifying the principles and values ingrained in the legal system.

To sum up, the review of the literature integrates a wide range of viewpoints, including historical accounts, constitutional analyses, legal research, sociological observations, and comparative analyses, and empirical assessments, talks about corruption, public opinions, technological considerations, and reform suggestions.

Methodology

This study, “Unravelling Justice: A Critical Examination of Pakistan’s Judicial History and its Failures,” uses an approach that aims to give readers a thorough and insightful understanding of the nation’s legal system. The research methodology is multifaceted and combines legal analysis, historical research, and critical assessment to identify the underlying causes of the perceived shortcomings in Pakistan’s judicial history. In order to begin this investigation, a thorough literature analysis was carried out in order to comprehend the historical development of Pakistan’s legal system. To lay a strong basis for charting the history of the judiciary from its founding to the present, scholarly publications, legal texts, and historical records has to be reviewed [26]. The objective was to pinpoint significant turning points, legislative advancements, and external influences that have influenced the court system’s current situation.

After then, the research shifts to a concentrated legal analysis, looking at significant cases, court rulings, and constitutional clauses that have significantly influenced the development of the judiciary. This methodology facilitates a comprehensive investigation of the legal structure and its consequences for the administration of justice in Pakistan. The study tries to identify systemic factors that may lead to perceived failures by critically analysing the efficacy of judicial decisions and the implementation of legal principles [27].

The technique comprises interviews with legal experts, practitioners, and stakeholders within the court system, in addition to the legal analysis. These qualitative insights highlight the practical features of the legal system and suggest areas for change by offering a real-world perspective on the difficulties faced by the judges. In addition, by capturing the wide range of perspectives and experiences held by members of the legal community, the interviews help to create a more thorough grasp of the complexity involved.

Moreover, the methodology incorporates a comparison analysis with worldwide judicial systems in order to contextualise the results. By comparing Pakistan’s judicial performance to international norms, the research seeks to pinpoint optimal procedures and possible changes that could improve the effectiveness and equity of the system. In order to dissect Pakistan’s judicial history and evaluate its shortcomings, this article employs an integrated and multidisciplinary technique that integrates historical research, legal analysis, interviews, and foreign comparisons. By using this thorough approach, the article hopes to add significant perspectives to the conversation about justice and open the door for well-informed debates about possible changes to the Pakistani legal system.

Results and Discussion

A thorough analysis of Pakistan’s legal past reveals insightful results that highlight the system’s many facets of problems. According to Khan [28], the effort to create a strong legal system in Pakistan during the early years of the country’s independence had a lasting effect on the judiciary. The historical development shows a judiciary that struggled to establish its independence, which paved the way for a system that was having trouble carrying out its constitutional task. Gaining an understanding of this historical background is essential to understanding the underlying reasons for the apparent shortcomings in the current judicial system.

Constitutional analysis, in accordance with Ahmed, et al. [25] research, indicates a discrepancy between the aspirations of the constitution and the real-world application of justice. Although the ideals of justice are enshrined in the Pakistani Constitution, there are substantial obstacles in the way of implementing these values in a fair and unbiased manner. This mismatch highlights the necessity of critically reassessing the functional elements of the legal system in order to close the gap between the goals of the constitution and the judiciary as it exists now [1].

Pakistanis have dissatisfaction with their country’s legal system. Due to the lengthy, pointless processes, many feel that filing a complaint is a punishment. As a result, the system urgently needs to be overhauled. Some of the issues include the following:

A slow trial and unjust outcomes make the system unwieldy. Cases are not quickly resolved. Whether they are criminal or civil, the proceedings drag on for years. In certain instances, the circumstances get so bad that the accused or the complainant pass away while the case is pending [14].

The following are some evident results of a delayed legal system:

  • A jail population overflows as a result of the legal system’s protracted delays. Therefore, more funding is required to address the multitude of issues these inmates experience, such as hygienic and health concerns.
  • Because the legal system moves slowly, public trust is eroding quickly. This is a result of the general public’s ignorance of the law and the ineffectiveness of bar councils. Judges also engage non misconduct. Justice is therefore not done. An innocent person is imprisoned and then turns into a criminal in retaliation, while a murderer is freed to conduct more crimes. Feudal lords and chieftains have the power to Siddique O [29].
  • One of the main issues is that most people are ignorant of this nation’s legal system. As a result, solicitors take advantage of people. The 2009 Judicial Policy, which aimed to combat corruption, is not being carried out in its entirety.
  • In order to expedite the resolution of cases, there is insufficient collaboration between the police and judiciary. The police also take advantage of the public.
  • There is insufficient funding provided by the government to enable efficient judicial administration.
  • No case, petition, or writ filing using information technology
  • No computerised case record Using Qureshi, et al. [20] insights, an examination of seminal cases and court rulings reveals contradictions and possible flaws in the decision-making procedure. Concerns concerning the consistency and predictability of court decisions are raised by this pattern. A critical conversation about the reforms required to guarantee a more principled and uniform application of legal precedents throughout the Pakistani judicial system is prompted by the recognition of these difficulties.

Comparative studies highlight the possibility of gaining knowledge from effective international models, as demonstrated by Jackson, et al. [24] work. Although Pakistan has particular difficulties, lessons from international best practices offer a useful reform road map. The comparative research indicates that in order to fortify and improve the efficacy of the Pakistani court, it is necessary to integrate successful tactics from other jurisdictions.

WJP Rule of Law Index 2021 Performance shows Pakistan Ranking in all over World Scale.

Pakistan Overall Global Rank: 130/139 Pakistan Overall Regional Rank: 5/6 (Table 1)

FactorGlobal RankRegional Rank*Income Rank**
Constraints on Government Powers89/1394/615/35
Absence of Corruption123/1395/628/35
Open Government101/1394/618/35
Fundamental Rights126/1395/628/35
Order and Security137/1395/634/35
Regulatory Enforcement123/1395/629/35
Civil Justice124/1394/626/35
Criminal Justice108/1394/623/35

Table 1: Pakistan overall Global Rank, Regional Rank, and Income Rank.

Sociological viewpoints emphasise the influence of sociological, political, and cultural elements on the legal system. Ahmed [22] and Hussain, et al. [1] have studied these perspectives. These outside factors add complexity that could jeopardise the judiciary’s objectivity. Understanding the sociological aspects of justice delivery highlights the significance of comprehensive reforms that take the context into account while correcting the shortcomings of the legal system.

According to Malik [23], the analysis of judicial efficacy and efficiency reveals practical issues that impede the prompt administration of justice. This empirical finding emphasises the need for systemic changes to address operational flaws in the system, such as better case management, resource allocation, and judicial training.

Pakistan’s judicial system has been marked by several historic controversies over the years. Some of the notable controversies include:

  1. Validation of Governor General’s dismissal of constituent Assembly (1954). The dissolution of the Governor General Glulam Muhammad in 1954, upheld by the judiciary, raised questions about the judiciary’s role in allowing executive interference in the democratic process.
  2. Doctrine of Necessity (1954): The “Doctrine of Necessity” was invoked by the judiciary in the context of Governor General Glulam Muhammad’s dissolution of the Constituent Assembly in

There are some part and reference and decision of higher judiciary in Pakistan in the current era which have attracted a lot of criticism from the public and particular the holding of court in the midnight after no confidence, motion, failure in holding the elections after 19 days of dissolution of assemblies acquittal in nab cases, disqualification of ex-Prime Minister of Pakistan by lower court [3]. Political persecution false and illegal arrest and forced disappearances etc. The present picture of human rights and law and order political is very dismal which have very seriously tarnished the image of independence and transparency of our judicial system [16].

Despite substantial government investments in the judiciary over the past decade, the institution remains in poor condition and struggles to deliver timely justice. Pakistan’s judges receive high salaries and more resources than the police and prosecution, but their performance has been disappointing. Alarmingly, the acquittal rate in Pakistan’s courts stands at over 80 percent, which means that a person who commits a crime in Pakistan has an 80 percent chance of being acquitted within this system [30].

Another major problem is the extensive delay in delivering justice, with criminal cases often taking years to be decided in Pakistani courts. The power and influence of Lawyer Bar Councils further complicate matters, as they can dictate terms to the courts and extend cases for months or even years, causing substantial delays in the resolution of cases. Corruption within the judiciary is also a significant issue, although there has been some improvement over the last decade due to increased perks and privileges [31].

Unfortunately, in Pakistan judiciary is facing a lot of barriers in its smooth functioning due to legal frame work orders and provisional constitutional orders issued from time to time by military rulers. The primary duty of the whole judicial system is the protection of public, safeguarding the fundamental rights and provides constitutional remedies to the general public in which our judicial system has failed completely [32]. The police force in Pakistan is notoriously corrupt, with police stations being feared by citizens who hesitate to even register genuine complaints due to the unprofessional and corrupt nature of police investigations. The critical investigative stage of the criminal justice process is often compromised in Pakistan, resulting in the destruction of evidence and hindering the pursuit of justice [33].

For Pakistan’s judiciary to gain international credibility and contest cases like the Kulbhushan Jadhav case in the International Court of Justice, it must prioritize fair play and genuine justice. The global community has witnessed the challenges Pakistani lawyers faced in international courts. To improve the system, the police force must undergo significant reform to address corruption and inefficiency. Reform efforts should be extended to the entire criminal justice system, promoting transparency, efficiency, and the timely delivery of justice.

Technology’s involvement in modernizing the legal system presents both benefits and issues, as examined by Ali RN [34]. Although technology can improve accessibility and efficiency, its successful integration necessitates careful planning, budget allocation, and risk assessment. This finding emphasizes the necessity for the legal system to adopt a strategic approach to technology improvements. Ultimately, addressing these issues within the criminal justice system and improving judicial and moral values are vital steps for Pakistan’s development and social progress. Reforms aimed at enhancing the judiciary, ensuring justice, and uplifting moral values through positive approaches are essential to strengthen the overall justice framework and reduce the influence of corruption and inefficiency within the system [6]. Lastly, Mustafa, et al. [17] examination of viewpoints regarding possible reforms provides an insight into forward- thinking tactics to deal with the recognized shortcomings in the judicial system. The suggested modifications include of modifying laws, fortifying institutions, and improving accountability systems, indicating a possible way to restore the effectiveness of the legal system.

Conclusion

To sum up, a critical analysis of Pakistan’s judicial history and its deficiencies has uncovered a complex interaction between historical, constitutional, legal, social, and operational variables that lead to the perception of the judiciary’s shortcomings in the nation. Summarily the systematic and departmental errors and flaws hind the smooth cyclic process of Pakistan judicial system. As judiciary is the main organ of state which keeps every institute within its own limits. Judiciary of Pakistan ranked 128 out of 130 by World justice Project. Which reveals that this system is outdated, rotten and at the brink of judicial default, in this modern era laws of 18th and 19th are being implemented which does not make sense? Similarly, international pressure on judiciary in Pakistan has been a topic of discussion and concern, particularly in cases where human rights issues and the role of law are at stake.

All of this, it is clear that a thorough and concerted effort is needed to rectify the shortcomings in Pakistan’s judicial system. Reforms should focus on resolving systemic issues, changing public perspectives, and using technical improvements in addition to institutional strengthening and legislative changes. A comprehensive and nuanced approach incorporating cooperation between legislators, solicitors, civil society, and other stakeholders is required in light of the difficulties that this critical investigation has brought to light.

The analysis of Pakistan’s judicial past and its shortcomings has shown that a successful reform plan needs to be flexible, tailored to the particular situation, and based on a thorough comprehension of the complex issues the court faces. The study’s conclusions provide a starting point for future deliberations and initiatives targeted at changing Pakistan’s legal system’s course in order to develop a more fair, effective, and reliable system of justice delivery for the country.

Administrative Measures

Certain administrative actions that will increase the effectiveness of the current criminal justice system can be implemented in the interim while the legislative framework is being discussed. The actions listed below can enhance the nation’s judicial system’s operation [36].

  • The federal Interior Ministry and the provincial governments will publish executive guidelines for classifying or ranking high-profile terrorism cases so that they receive extra consideration and care during the investigation process.
  • The federal Interior Ministry and the provincial governments must publish executive directives establishing a panel of special investigators tasked only with looking into incidents of classified high-profile terrorism [37].
  • To prevent witnesses from being intimidated, the Chief Justice of each High Court will establish guidelines for the use of video to gather evidence.
  • Hence, a plan for reviving the effectiveness of Pakistan’s judicial system includes suggestions for improved accountability procedures, institutional fortification, and legislative modifications.

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@article{gondal2024,
  title   = {Justice Derailed: Navigating the Turbulent Waters of Pakistan’s
Judiciary through the Ages},
  author  = {Gondal AQ},
  journal = {Open Access Journal of Criminology Investigation & Justice},
  year    = {2024},
  volume  = {2},
  number  = {1},
  doi     = {10.23880/oajcij-16000107}
}
Gondal AQ (2024). Justice Derailed: Navigating the Turbulent Waters of Pakistan’s
Judiciary through the Ages. Open Access Journal of Criminology Investigation & Justice, 2(1). https://doi.org/10.23880/oajcij-16000107
TY  - JOUR
TI  - Justice Derailed: Navigating the Turbulent Waters of Pakistan’s
Judiciary through the Ages
AU  - Gondal AQ
JO  - Open Access Journal of Criminology Investigation & Justice
PY  - 2024
VL  - 2
IS  - 1
DO  - 10.23880/oajcij-16000107
ER  -