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Burden of proof

August 10, 2019

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The writer is a development-sector practitioner and a lawyer.
The writer is a development-sector practitioner and a lawyer.

ACCESS to justice in Pakistan comes with a price, a hefty one that those occupying the lower rungs of the socioeconomic ladder have difficulty affording. From their perspective, the legal system in Pakistan and its adversarial nature is such that their voices disappear into the backlog of 1.9 million cases pending before various courts that, in a country of over 221 million citizens, are administered by a mere 3,000 judges.

Primary research on access to justice in Pakistan is severely lacking. Since the time of Colonel Sykes’ 1853 report on the administration of civil justice in British India, few academics — save for the likes of Dr Osama Siddique and former chief justice of Pakistan Jawwad S. Khawaja — have contributed to research on this issue.

There is thus insufficient understanding of the reasons for the blatant inefficiencies in the system, and their ripple effect on the denial of fundamental rights and a growing lack of confidence in the judiciary amongst the public. Against this backdrop, it is reassuring to see the apex court move outside the realm of the executive and focus on building an effective judicial system rather than building dams. From e-courts to the 110 model criminal trial courts scattered across the country, Chief Justice Asif Saeed Khosa has ushered in myriad innovative steps to provide speedy and cost-effective justice to those who need it. The question is: do these go far enough?

Public interest litigation offers many advantages.

One effective strategy would be to revive public interest litigation (PIL) — with caveats and learning adopted after the abuse of suo motu powers during the tenures of Iftikhar Chaudhry and Saqib Nisar as Supreme Court chief justices. The raison d’etre of PIL is primarily to break the shackles of inequality that exist due to procedural, technical and legal constraints.

Our country is embedded in the common-law system, in which courts are slow to rule on findings of fact in the preliminary stage or to issue interim relief unless convinced of a prima facie case. PIL, on the other hand, brings with it many advantages, including the provision of speedy justice.

In PIL, the court settles substantial legal principles at the preliminary stage and grants the relief sought in the petition via immediate and interim remedial orders. Moreover, unlike the common-law system, PIL does not need a pending suit, because it is a remedial jurisprudence that is non-adversarial in nature and therefore composed of a collaborative nature that is more investigative than restrictive.

In such cases, the judge has leeway to play a more active role by moving beyond the parameters of the pleadings, evidence and issues at hand and expanding the scope of the petition in order to transcend the traditionally strict role adopted by judges in the adversarial system.

One important advantage of PIL, which is of utmost importance within the Pakistani socioeconomic context, is that the petitioner is released from the burden of proving the allegation. Given that the petitioners affected by PIL cases usually hail from relatively poor backgrounds with low literacy rates and lack of knowledge regarding legal mechanisms, this release from the burden of proof is of benefit to them. It shields them from feeling alienated and intimidated by the system, and from potential exploitation from the opposing counsel or other parties.

The amorphous nature of the parties in a PIL case also offers an advantage, unlike the common-law paradigm where the identity of the litigants to the dispute at hand is well-defined and pivotal to the case. Furthermore, PIL is a flexible paradigm because the petitioner is not dominus litis, thus allowing the court to continue the action should the petitioner wish to withdraw their name from the action.

The most pressing concern in the exercise of PIL pertains to the power it places in the hands of the judge, who can then wield it as an instrument with which to conduct judicial activism, and thereby encroach upon the executive or the legislature, or who can quash cases that do not conform to his conservative legal philosophy.

In a country that has too often witnessed chief justices putting on the gown of policymakers and foraying into realms beyond their jurisdiction, be it to levy taxes or

build dams, the need to exercise judicial restraint in the realm of PIL cannot be over-emphasised.

The underlying philosophy of PIL is one that permeates every branch of law and has had an indelible impact in changing Pakistan’s constitutional landscape. It is important to be cognisant of the argument that there is nothing sacrosanct about common law; hence, one does not need to seek recourse to it, and it alone, in order to secure the fundamental rights of the people. In fact, PIL is an effective tool to lower the barriers and augment trust between courts and citizens.

The writer is a development-sector practitioner and a lawyer.

Twitter: @Shanzaf

Published in Dawn, August 10th, 2019