Is legal reform possible?

Published April 23, 2016
The writer is a lawyer.
The writer is a lawyer.

AT various stages of Pakistan’s history, something or the other (perhaps an institution) has been identified as the solution to all Pakistan’s chief ills. Over the last couple of years, a new candidate has emerged. This new narrative is as follows: if there was rule of law, implementation of the Constitution and speedy justice administered by the courts, then terrorism, corruption and various forms of societal injustice would be drastically reduced. In short, the new superman in town is the ‘law and courts’. Hence, the constant talk about legal and judicial reforms.

With the above emerging narrative of the new legal superman and in the background of the continuing guilt of parliament for having allowed the establishment of military courts (ie impliedly accepting the failure of the civilian justice system), the Senate in Islamabad has, in recent history, undertaken the biggest attempt to reform the Pakistani legal system by converting the entire membership of the Senate to the Committee of the Whole. The result is a report of the committee titled Provisions of Inexpensive and Speedy Justice in the Country.

The Senate report is commendable in many respects. Firstly, it has identified the key problem of the legal justice system ie expensive and delayed justice. The absence of inexpensive justice leads to access to justice being denied to the majority of Pakistani citizens, while excessively delayed justice is actually injustice to the victims. Secondly, there is the realisation that no legal reform is possible without simultaneously reforming the laws, government justice bureaucracy (police reforms, prosecution system etc.), and the judiciary and without the provision of free legal aid for the poor, weak and powerless.

A Senate report on legal reforms is based mostly on two myths.

But the report has its shortcomings listed below that make it a failed attempt at legal justice reforms.

Mythological power of law: Most of the report is based on two myths. Firstly, if we have time limits for various stages of the civil and criminal trials, the problem of delay would be solved. But how will a judicial system overwhelmed with cases overseen by a limited number of judges enforce these limits is not considered or answered by the Senate. Secondly, there is the assumption that merely passing a good law will automatically lead to its enforcement; that judges will somehow acquire superhuman abilities to deal with their overwhelming case load simply because we would now have new laws.

Reform sermons: The Senate report is full of sermons about what the government and the judiciary should do. The government should carry out police reforms, especially investigations, increase the number of district judges etc — but it is not clear how the government will deal with the problems and mechanism involved in such reforms. The one-page recommendations to the judiciary are already well known and will be ignored by the judiciary. The most disappointing are the recommendations on the issue of the provision of free legal aid. These don’t even contain a proposal for setting up a government fund for the poor and weak for free legal aid; there are merely proposals for ineffective committees and emotional appeals made to lawyers for free legal aid.

Misguided proposals: Not only will the legislative proposals contained in the report have no effect on the issue of ‘inexpensive and speedy justice’ some of the proposals may actually make matters worse. To take one example, it proposes to increase the number of Supreme Court judges from 17 to 27, but there is no increase in the number of judges of the four high courts. Everyone is aware that the overwhelming majority of cases are pending, and are freshly filed at the district courts and high courts and it is here where the number of judges should be increased.

Is legal reform possible? Yes but it needs to be based on the following basic presumptions and premises.

Firstly, with all its difficulties and problems, the judicial system in Pakistan does deliver. For example, no judgement of the military courts can even compare with the transparent, fair and expeditious procedure adopted by the civilian courts in the Mumtaz Qadri case. Another example is the Sindh High Court awarding the biggest compensation to all 255 deceased workers and 55 injured workers in the Baldia factory fire case within three years, which is quite unprecedented anywhere. We need to build on what works in our legal and judicial system instead of always condemning it and trying to dismantle it.

Secondly, the problem of delayed justice is simple — shortage of judges at the district and high courts. In other words, too few judges chasing too many cases and you can never solve the problem of delay unless you triple the number of judges.

The shortage of judges, especially in the high courts, is directly linked with the non-availability of judges. We need concrete proposals to solve this problem eg lowering the age of appointment of high court judges to 40 years to attract young people to the high court bench, retaining experienced judges by increasing the age of retirement of superior court judges or ad hoc appointments at the high court etc. For the district judiciary, we need to have judicial academies exclusively devoted to the training of the district court judiciary immediately after law school or before their appointment.

Thirdly, it is necessary to enact laws to make procedure of civil cases simple like the criminal procedure and reforming the appellate process. The Senate proposes eliminating intra-court high court appeals by burdening the Supreme Court with such appeals.

Fourthly, the problem of inexpensive justice does not require rocket science to solve. No country in the world has been able to provide access to justice to the poor and weak without a government funded legal aid system.

Legal reforms are possible only if we are able to understand which reforms are desirable and practical. We don’t need an English legal system which is un-implementable in Pakistan; instead, an imperfect Pakistani legal system which is relevant and practical will do.

The writer is a lawyer.

Published in Dawn, April 23rd, 2016



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