Senator Barrister Ali Zafar is among the leading legal experts in Pakistan. He is almost always in the news these days, not just because of his legislative reforms in the Parliament as Chairman Senate Standing Committee on Law but also as the Legal Counsel of former premier Imran Khan and Pakistan Tehreek-e-Insaf (PTI).
In this exclusive interview, he talks about where the judicial system has lost track in Pakistan and why women lawyers are so outnumbered in the country.
Q. Why do we see so much judicial activism in the country these days?
Barrister Ali Zafar (BAZ): The prime job of the judiciary everywhere in the world (including Pakistan) is to settle issues and disputes. The other crucial role it has is to exercise the power of judicial review and intervene if required when the government acts contrary to the constitutional provisions. That is where the judiciary can step in and review such decisions. Judicial review is meant for judicial restraint which is necessary to ensure the separation of powers amongst the judiciary and other branches of the state. This is also a restraining role of the judiciary. The concept means that the judiciary restrains itself and does not interfere in political, policy and executive matters.
However, of late, all over the world there has been a realisation that judicial restraint is not the only option. Sometimes, the judiciary must take an active role, especially when the Parliament is too slow to act on a specific legal aspect, for example on the human rights issues. This is where judicial activism starts. Even though this has not been a widely accepted phenomenon, there have been instances of judicial intervention or activism helping the common person.
An example of this in Pakistan is the right to education, which is a fundamental right. Schools were not running in many areas of Pakistan, hence the judiciary came forward and forced the respective governments to establish schools. Similarly, slavery was abolished in the brick kiln industry in Pakistan, only because of judicial intervention.
Q. Can you quote specific instances in the above mentioned areas?
BAZ: There was a time during the Musharraf era when Parliament became weak and ineffective, and the media became very strong. It was the same era of Chief Justice Iftikhar Chaudhary, who became a champion of judicial activism in the country.
During his time, judicial activism was at its peak in Pakistan with the support of the media. That gave enormous power to the courts which started delving into political, executive, policy and administrative issues. As a result, judicial activism eventually converted into judicial adventurism.
Unfortunately, when the courts started doing adventurism, there was an impression created that courts are overseeing some matters of the government as well. That was the time when courts were getting all the limelight from the media while the government was standing far behind. Courts thus were influenced by this attention they received from the people and in the media and were taking policy and executive decisions. Some people called it judicial sovereignty.
It is not the court’s job to interfere in government and executive matters. Judges are not elected, they are selected, and such actions eventually damage the institution. The moment court enters a political helm, it enters into a dirty debate, causing damage to the institution’s reputation.
And most importantly, once the court gets involved in political issues and spends a lot of time on cases that the government and executives need to solve, the ordinary person starts suffering and it results in a huge backlog of cases. When eventually the courts cannot solve the political problems, people get disillusion about the courts.
It must be remembered that the judiciary’s power is based on its reputation and the respect that the people have for it.
Q. What about the lower courts? Why is their performance so sketchy?
BAZ: The Lower Judiciary has three major problems. One is the archaic system of our procedures which causes substantial delays. We have yet to evolve our procedures like the rest of the world. Moreover, in this new world, when everyone is moving towards arbitration and mediation, we are still not ready to embrace it.
Today, more than 70 percent of the court work has gone to the arbitration system, but we have yet to do it in Pakistan. So, we are far behind.
The third reason is the lack of professional training for judges and lawyers. Our reluctance to use technology is one of the main reasons why we waste a lot of time and, therefore, the inefficiency prevails. We are slow because of our age old system which is still in vogue. We are not ready to empower our courts and legal professionals with new technological marvels.
Q. Judicial accountability is also a new buzzword. Tell us more about it.
BAZ: Yes, Since a court’s power depends on its reputation, the best way to check the court’s performance is through public opinion. One must understand that the judges are not sitting in any closet. They are very much part of the society. They also get influenced in some way or the other. Judicial accountability can restrain a judge from any external influence. In fact, I have heard that Justice Qazi Faez Issa recently said that ‘criticise the judge if his judgment is not up to the mark.’ Such name-shaming could make the judge accountable. However, I believe that the best way to criticise the judgment at the most appropriate forums are the Bars themselves which can exert some pressure in case the judgements are controversial.
Q. You are also a supporter of Constitutional Courts. What are its challenges and opportunities?
BAZ: I strongly believe that if Judicial restraint is not exercised and if judicial adventurism is not shunned, then the Constitutional Court may have to be created which will deal with constitutional matters while the Supreme Court deals with routine cases.
Q. Why is there a general shortage of good-quality lawyers?
BAZ: Yes, you are right, the competence level and the quality of lawyers is deteriorating. There is a huge mushrooming of law colleges which are producing a great number of lawyers, but there is no quality. Quality is worsening because of inadequate education. We used to have a very good apprenticeship system, but that has also vanished. Young lawyers are like lost souls. They lack not only proper educational facilities but there is no one to teach them ethics and decorum of the court which is so essential for a good lawyer to observe.
Q. What about gender participation and representation, why is there so few women lawyers around?
BAZ: Unfortunately, as compared to our population, less than one percent of women are legal practitioners. Our courts and legal offices are not women-friendly places. There are no facilities for them, even as basic as separate bathrooms or nursing rooms. Court buildings and offices are very unfriendly and patriarchal. We need to take steps where more and more women should come to the courts and become part of our judiciary system.
