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Towards legal reform

April 19, 2018

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THE call for legal reform by the country’s chief justice can only be supported wholeheartedly. A serious debate on the scope of reform and the process of bringing it about is, however, necessary.

The chief justice has quite eloquently bemoaned delays in the disposal of cases, sometimes for decades, and the continued reliance on archaic, colonial period laws.

Both points have been in public debate for many decades. The Ayub regime set up a law reform commission under justice S.A. Rahman’s chairmanship to propose a legal system that would ensure speedy and inexpensive justice. The late judge’s advice that speed in the disposal of cases and a cut in litigation costs must not be at the cost of justice is valid even today. Equally valid is his plea that while cutting down the deadwood in law and procedure, no piece of good wood should be chopped off.

The backlog on the courts’ roster is undeniably heavy. The number of cases pending in courts across the country is said to be 1.869 million, 332,488 in the superior and 1.537m in the subordinate courts.

The need for reformative or egalitarian justice has been ignored in a manner bordering on criminality.

The chief justice has attributed the court’s delays to shortage of judges (800 vacancies in all ranks in Punjab alone), adjournments, strikes, etc. These are manageable problems. The government can be persuaded to fill judicial officers’ vacancies on a priority basis and it should not be impossible to remove the other causes of delay through stricter superintendence by the superior judiciary. Such measures did have some effect in the early years of justice Iftikhar Chaudhry’s court.

The need to get rid of not only obsolete but also inadequate and unfair statutes is manifest. Laws such as The Bengal Alluvial Land Settlement Act of 1861 can easily be deleted from the Pakistan Code. The Elephants’ Preservation Act of 1879 too can be axed; if it is needed to preserve white elephants, of which we have a large breed, the word ‘white’ may be added before ‘elephant’ wherever the large beast is mentioned.

The list of laws that need to be reviewed for being inadequate or unfair, or both, is quite long. Some of such 19th-century statutes include The Dramatic Performance Act of 1874 that puts a cross on the freedom of expression, the Religious Societies Act, the Married Women’s Property Act of 1874 and the Female Infanticide Prevention Act of 1870.

The unfair laws include the minor punishment law for poisoning the water of a pond that humans and animals both drink from, and most of the laws that prescribe the death penalty were made without due deliberation and have brutalised society. Care will have to be taken that a bad law is not retained in a new version in the manner the much-hated Frontier Crimes Regulation is being replaced with the rewaj act.

One of the old laws that merits retention is the Punjab Murderous Outrages Act, a forerunner of our insecurity-driven laws. The death sentence awarded by a sessions judge or a commissioner under this act is not subject to confirmation. How can we drop from the statute book this gem of a law?

But judicial delays and bad laws, though important, are not the only issues in reform. There is need, for instance, to resolve the confusion caused by the multiplicity of legal systems: the Anglo-Saxon code, the laws claimed to be Islamic and administered by Sharia courts, mixed law courts (in Khyber Pakhtunkhwa), the informal religious courts, and the community codes enforced by jirgas patronised by feudal and tribal lords. It is also necessary to create a legal order that guarantees fullest protection to the citizenry’s fundamental rights under Articles 25 and 10-A (right to equality before law, equal protection of law and a fair trial). Lack of access to legal remedies has been depriving the poor and the disadvantaged of the protection of law.

No legal reform will be adequate without tackling the disadvantages suffered by women, religious minorities, labour and the indigent due to biases against them among crime investigators and prosecutors, and from which senior judicial officers, too, might not be completely free.

A basic question is: what kind of judicial system is needed to meet the needs and aspirations of the people? The system inherited from the colonial masters and vulgarised by their bumbling successors is designed largely to serve the state and the propertied classes. The criminal justice system is decisively retributive. Enhancement of penalty is the only way used to control crime. The urgency of moving towards a reformative or egalitarian justice has been ignored in a manner bordering on criminality. But this subject demands a fuller exposition on some other occasion.

Legal reform by whom and how are critical issues in the present debate. The superior judiciary is well placed to evaluate the efficacy of frequently invoked statutes and procedures, their strengths and areas where reform is due. But it would be unfair to burden them with reform work beyond seeking their counsel. Even otherwise the distinction between lawmakers and interpreters of the law must not be erased. Any substantive legal reform lies in the exclusive jurisdiction of parliament. If it does not fulfil its duty there are ways of obliging it to do so, but its authority is nontransferable. However, legislatures everywhere depend on bodies of experts to do the groundwork for them.

The reform process may begin by asking the judicial academies, where some good work has begun, to prepare a comprehensive report on all the law reform proposals ever made by any institution and their fate. This report may be submitted to a commission comprising jurists, lawyers, sociologists, criminologists, gender experts and minorities’ and civil society representatives. The commission may also seek the public’s views through a questionnaire and public hearings, and finalise concrete reform proposals to be debated by lawmakers. The entire process may be completed within 12 to 18 months.

Published in Dawn, April 19th, 2018