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Judicial reform

Updated January 16, 2018

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ON Saturday, the chief justice of Pakistan spoke about the need for reform of the judicial system. In fact, if one thinks about it, we seem to be in a rare moment when judicial reform is high on the public agenda.

On one hand, there have been riots against police inaction in apprehending the culprits of repeated incidents of child abduction, rape and killing in Kasur. On the other hand, Mr Nawaz Sharif has rarely missed an opportunity to attack the judiciary and has vowed to launch a movement for restoration of justice.

Yet, amidst the noise around the issue, there is very little serious conversation about the constructive steps that need to be taken. If the recent past is any guide, public outrage at perceived failings of justice has not resulted in a reform effort intended to strengthen the process.

For example, after the Army Public School tragedy in December 2014, the country agreed on military courts to try terrorism suspects for a period of two years. Presumably, the idea was that in the intervening period the shortcomings of the criminal court system would be addressed. Yet, instead of being the stop-gap measure they were supposed to be, we saw the inevitable extension of military courts.

Similarly, in the aftermath of little Zainab’s abduction, possible rape, and murder in Kasur the rallying cry is for public hangings and trial under the anti-terrorism laws of the country.

On each occasion that has presented us with a chance to form a collective consensus on improving the justice system that applies to every Pakistani, we have, instead, chosen to implement stop-gap measures providing temporary relief while failing to address the actual issues.

Amid all the noise, there is no debate on concrete measures.

The truth is, every child in Pakistan deserves the same chance at justice that Zainab does. This chance should not depend on whether sufficient members of the public are shocked or outraged enough to demand a proper investigation and trial. Similarly, every single Pakistani deserves not only the chance to prosecute a wrong done to him, but to defend himself against accusations.

When we clamour for suspects to be tried by anti-terrorism courts, our desire may be to ensure that justice is done, but what we actually achieve is to convey that some victims deserve a greater shot at justice than others do — and also that some people (who at that stage are only suspects) deserve a lesser opportunity to establish their innocence than others.

Instead, if we want to do right by Zainab and the children of Peshawar, and create a legacy out of their tragedies that we can live with, it should be that we used their tragedies to create and nurture a justice system in which every citizen can once again place their faith. A system where we no longer have to argue that a person should be tried in that court or this court, because we all know that just the normal court is good enough.

To that end, the National Assembly should, instead of demanding exemplary punishment for Zainab’s killers, seriously debate improvements in the process through which such killers are apprehended and brought to justice.

This requires a multi-pronged strategy to be executed simultaneously. First, parliament must urgently update and amend laws that govern trials to bring them in line with the modern day. Pakistan’s civil and criminal procedure codes are over a century old, while the law of evidence dates from 1984.

Second, a concerted and serious dialogue must take place between parliament and representatives of the judiciary to enhance the administrative capacity of the courts. It is impossible for judges to decide a case load that translates into hundreds of cases a day.

Third, the judiciary must adopt a litigant and trial court-centric approach. The emphasis should be on getting a legal question right at the first time of asking at the trial court level rather than relying on corrections to be made at higher forums. The trial court, and not the Supreme Court, should be considered the most important court in the country as that is the most frequent — often the only — experience of justice for the vast majority of Pakistanis.

Fourth, the bar associations must reform themselves to claim their correct place as servants of the law rather than acting as obstructionist forces to genuine efforts at reform.

The desire to see Zainab’s killers brought to justice is understandable. It signals that our collective conscience can still be stirred. Let it stir to create lasting change that can benefit all our children, rather than returning to its slumber once this particular murderer is caught. Instead of platitudes, it is time to have a substantial conversation about justice in this country.

The writer is a Lahore-based lawyer.

skhosa.rma@gmail.com

Published in Dawn, January 16th, 2018