Judicial and Legal Reforms in Pakistan 1947–2024: A Brief Review

ABSTRACT

The study found that while judicial reforms is a vast area, the bulk of the literature is concerned with the appointment of the judges and the tug of war between the executive and the legislature. The literature on legal reforms with respect to police and law enforcement focus on colonial heritage and how current structure of policing organisations is defined by colonial laws. Police corruption and public perception have also been the focus of researchers in legal reforms. It was also observed that while some papers adopted objective stances, there has been literature that supports one political era over another. Most of the studies adopted the discussion-based approach based on historical analyses.

1. INTRODUCTION

Judicial and legal system of a society is the product of evolution that may span over hundreds of years.  Keeping other things constant it’s a gradual process where in the reforms and changes in the judicial and legal system respond to the societal needs and requirements. However sometimes, a nation may find itself at a critical juncture which can change the course of these reformations and changes to go in a very different direction. It can either change it to become a more inclusive system or it can make it take a dive. Something similar happened to the Indian Subcontinent. It had a working legal and judicial system that had evolved over thousands of years spanning from the times of the Chandragupta Mauryas to the Mughals. Colonisation by the British East India Company and then Britain proved to be a critical juncture that radically changed the society, the judicial and legal set-up and the public administration. It also changed the role of the state by making it a more Centralised and Interventionist entity. The Muslim state and the Hindu state before it was not as visible and centralised as was the colonial state  (Kaviraj, 2005). This new interventionist state created social, political, administrative and judicial systems that were a radical departure from what the subcontinent was used to. The judicial and legal set up of the colonial state may have retained some aspects of the previous set-up but in totality it was a new system and that system has persisted throughout till date. Decentralisation was the norm of Public administration in the pre-British period while the Colonial state was highly centralised (Khan, 2023a).

2. JUDICIAL REFORMS

2.1 What is Judicial Reforms

Judicial reform as a complete or partial political reform in the judiciary of a country. Judicial reform is often done as a part of a wider range of reforms but not necessarily. It is considered to be a part of legal reforms which is considered to be wider area according to jurists and scholarship on law (Neat & Neilsen, 2007).

Judicial reforms in Pakistan have emerged from murky and tense fight between the three branches of government. The story of judicial reforms and on broader level the history of legal reform and changes in Pakistan highlights the role of right-wing vs the left, the question of identity, the role of religion and use of religion in politics.

There is no doubt that the country inherited a colonial structure in government, politics and judiciary. The legal framework within which the Pakistani society operated was colonial and a legacy of the British raj. However, the constitutional crisis that Pakistan experienced up until 1973 was not   rooted in its colonial history as it was a cause of a power struggle between the different groups all of whom eyed power. For instance, the first constituent assembly was dissolved, and it failed in its only job which was to come up with a constitution. The government of India act was considered incompatible with “interests of the newly independent country that came in to being as “fort of Islam”.

Mahmood opines that the Government of India act was incompatible with the interests of Pakistan due to three main reasons. Firstly, the establishment of federal government based on the alliance of the provinces and the princely states. Second was the autonomy of the provinces and the third was the voluntary alliance of the princely states (mehmood,2000).  The fact that Pakistan adopted this act was due to compulsion since Pakistani was bound to be Governed by the Government of India Act until it came up with its own constitution.  and this also led to constitutional crisis that existed for decades. This  is corroborated by others such as (Adeney, 2002; Burks, 1954; Hayat, 2020; Kapur, 2006; Malik, 1996; Newman, 1959; Samad, 1995; Talbot, 1986; Wasseem, 1992; Ziring, 1997).

The period was also overshadowed by the fact that since the country came into being in the name of Islam therefore should we have the sharia and the Islamic legal and political system or should have a modern system as Pakistan was a republic.  For instance,

Data was collected from the Google scholar search engine using its advanced search option. Using the advanced search, the research that directly tackled the question of judicial reforms were considered. The research that contained some discussion on judicial reforms but did not deal with it as a main subject were filtered out using the options of advanced search. While judicial reform is vast area and can include many things only few of the areas were selected for simplicity and ease of analysis. It was observed that the research has been primarily focused on the appointment and independence of judiciary. As in all the periods from the 1950s to 2024 discussion and debate on judicial appointment has received more attention from scholars and researchers than any other area of judicial reforms (Figure 1).

Nizamuddin made an Ulema board which was supposed to validate and verify that a certain law is in accordance with Islam or not. Muhammad Ali Bogra changed it and presented his famously known “Bogra formula” where in the Ulema board was replaced by Judiciary and it was to decide on whether a particular law was in accordance with Islam or not. In the midst of the constitutional crisis this was in fact the first time when the judiciary was made relevant to the legislation. However, the no real judicial reform can be seen since there still existed a confusion in what type of legal framework the newly independent country was going to have. This made it difficult for any type of judicial reforms to take place since  the necessary pre-requisite of judicial reform “legal reforms” had not been initiated neither was there any agreement on the legal framework  (Abbas, 2023; Choudhury, (n.d).; Gaho et al., 2012; Khan, et al. 2023; Mahmood, 2000; Pardesi, 2012; Wheeler, 1955).

Judicial reform usually aims to improve such things as appointments of the Judiciary to Judicial offices courts of law, procuracies, advocacy, inquest, executory processes, and record keeping. It is a part of total legal reformation process.. Therefore it cannot effectively take place in isolation from legal reform (Neat & Neilsen, 2007). Pakistan suffered from constitutional crisis and was unable to come up with an agreed upon constitution until 1973 therefore, judicial reforms remained neglected. If there was any change that policy makers and the powers that be were more interested in, it was that of the appointment of judiciary and that has remained a source of dispute and tensions in Pakistan since its inception.  The question of appointment of judges has therefore been the most discussed and debated subject of judicial reform literature. It often appears as if in Pakistan Judicial reforms actually means Judicial appointments. There are however other important things in judicial reforms such as the cases back log, court procedures, bureaucratic processes and necessary paper work, automation and computerised record keeping, access to courts, speed of trials etc. however, they have not been discussed as thoroughly as the case of judicial appointments. Figure 1 attempts of summarise the focus and attention of scholarship to different issues that make part of Judicial reform.