It looks like it will be an interesting few months for the legal system in Pakistan. The New Year has brought with it two different questions related to the reform and efficacy of the judiciary, and the resolution of these issues will have serious repercussions for Pakistan in the years to come. The first of these has to do with a development whose effects have been reverberating in the news for weeks, namely the retirement of Chief Justice Saqib Nisar after a tenure that can at best be described as controversial. After spending a career cultivating a reputation for judicial restraint, Nisar’s last year in office was defined by what some have called a ‘populist’ turn involving the use of suo moto powers to enforce the writ of the courts and, deliberately or inadvertently, undermine the power of the executive and the judiciary. The second event affecting the judiciary is the expiration in March of the two-year extension granted to military courts in 2017. When military courts were first introduced after the passage of the 21st Amendment in January 2015, their existence was justified in terms of the need to swiftly deal with cases related to terrorism given the failure of the civilian judicial system to do so, and the same rationale was used to extend their existence when their original two-year tenure came to an end. Thus far, despite opposition from some quarters including the PPP, it seems likely that parliament will give its support to maintaining military courts for the foreseeable future.

While these two issues – the retirement of Saqib Nasir and the extension of military courts – do not appear to be related, the fact is that they are both intrinsically connected to the question of the role courts are supposed to play in Pakistan. When Saqib Nisar began to use the power of the Supreme Court to intervene in matters he felt were pertinent to the public interest, he did so in a manner that was counterproductive to the development of a more robust democratic institution. Independently of the accusations of political bias that were levelled against him, and of the nature of the matters in which he intervened – which ranged from the ridiculous (crowdfunding a $14 billion dam) to the sublime (ensuring the provision of justice in the Zainab murder case) – the simple fact is that it is not the job of the Supreme Court, or any other court, to micromanage the affairs of state. Arbitrarily raiding hospitals, setting the fees charged by private schools, and investigating the prices of bottled water are not tasks usually associated with the judiciary – regulating industry and enforcing the law are jobs for parliament and the executive and by encroaching on these spheres, the Supreme Court simply undermines those institutions and prevents their development as entities that can, over time, be expected to do their jobs. More importantly, the absence of any real checks on the use of the Court’s powers erodes the principle of separation of powers, placing one unelected judge in a position where they can influence the lives of tens of millions of people without any accountability. No matter how wise or well-meaning a judge may be, it is too much power to place in the hands of a single individual.

Other than the problems with the excessive use of suo moto powers, the other problem with the judicial system is its complete and utter lack of efficiency and ability to deliver on the reason for its existence, namely the timely and efficacious adjudication of cases and dispensation of justice. While exact numbers are not readily available, it is estimated that there are almost 2 million pending cases at different levels of the judicial system, with the Supreme Court itself currently grappling with a backlog of over 40000 cases. The reasons for this are numerous, ranging from a lack of capacity to corruption and rent-seeking by judicial officials, and the problems extend to the entire legal fraternity. When he first took oath as Chief Justice, Saqib Nisar vowed to tackle this fundamental problem but failed to take any meaningful action. His successor has promised to address this, and perhaps exercise more restraint when it comes to using the powers of the Supreme. It remains to be seen if this will be the case.

It is here that the question of military courts becomes relevant. Since their inception, these courts have convicted 617 people for terrorism-related offences, acquitting only four of the people brought before them. As independent observers have repeatedly pointed out, the conduct of these courts is marred by a number of issues; confessions are obtained without adequate protections against torture, defendants were denied the right to a lawyer of their choice, denied the right to a public hearing, and even denied the right to appeal to civilian courts. Perhaps most importantly, military courts were brought in to deal with the ‘exceptional’ threat posed by terrorists and the apparent inability of civilian courts to secure convictions when suspects were brought before them. Yet, if the problem is that civilian courts are incapable of doing their jobs, it is difficult to see how replacing them with ‘temporary’ military alternatives solves this problem, particularly when the ‘solution’ in question is one that arguably militates against the principles of justice that are supposed to underpin the legal system. Indeed, a more holistic approach to the question would treat the ‘exceptional’ as what it should be – a time-bound fix for a seemingly intractable problem – and work instead on undertaking the substantive reforms necessary to address the deficiencies within the judiciary. Instead, as with suo moto powers, that which should be used as a last resort (if then) has instead become the new normal.

 

The writer is an assistant professor

of political.