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Thursday March 28, 2024

Criminal justice system to be overhauled

By Ansar Abbasi
October 05, 2016

NSA, AG working closely to finalise
reforms under NAP; package includes new federal law to deal with terrorism

ISLAMABAD: Pakistan’s criminal justice system — from police to prosecution, courts and judges — is being overhauled under the National Action Plan (NAP) for which the prime minister’s national security adviser and attorney general are closely working to finalise the reforms package.

The reforms package includes improving the FIR system, overhauling the prosecution service, creation of legal service, new federal law to deal with the scourge of terrorism, speedy disposal of court cases by blocking frivolous litigation, reviewing multi-tier appeal system, introduction of alternate dispute resolution system and assigning Nadra to issue succession certificate, etc.The government is bound to review the criminal justice system by early next year when the 21st Amendment, under which the military courts were set up to try terrorism cases, will lapse.

Informed sources said that an amendment is being proposed to require the lodging of a First Information Report (FIR) or making of a complaint to happen only subsequent to a complete investigation as in the case of the Federal Investigation Agency (FIA).

In this reforms package, the creation of Legal Service of Pakistan is being considered. This legal service will serve as an incubating ground for incoming talent at all levels of the legal sphere. It will oversee the training of prospective candidates for civil judge, or of officers in various legal capacities running the range from office of the Attorney General to the Public Defenders’ Office.

In order to replace the 21st Amendment to the Constitution in 2015 — which provides for military courts that will expeditiously try those involved in terrorist offenses, waging war against Pakistan, and acts threatening the security of Pakistan — the government is considering further consolidating the country’s anti-terror regime.

A fresh federal law to deal with the scourge of terrorism in all its forms is being recommended. The proposed legislation will act as a stand-alone enactment to combat the threat of terrorism in Pakistan, with powers of prescribing detention, an extended period of time for investigation and remand.

The source said that such a law may establish a specialised federal investigation agency, to investigate offences under this act, with crime labs established in every divisional headquarters under the control of the federal government, with provincial officials to be deputed as personnel.

There shall also be an independent prosecution agency, as well as federal courts wherein special measures shall be taken to ensure the anonymity of witnesses, prosecutors, investigators and judges. This may work in tandem with a bureau of federal prisons, for the creation and management of federal prisons, to be constituted for the incarceration of persons indicted under the Act.

Regarding delays in court cases, it is said that the cases are adjourned on the slightest of inconveniences to either party, which in any other jurisdiction would carry grave consequences. The sources added that the entire system is weighed down by frivolous litigation that is neither dismissed nor discouraged.

“Coupled with open-ended stay orders, many devious elements initiate lengthy litigation battles. The motive is simple: in financial matters, the wrongdoer gains far more by getting his case stuck in court for years, with no statutory adjustment for inflation when the case gets decided,” a source said, adding that another issue is to do with procedure: too much time is consumed by a seemingly endless process of appeal.

The majority of cases in our courts are not settled before trial, leading to a plethora of litigation, as well as the practical rehearing of cases that have already been heard.It is said that up to 80 percent of Pakistan’s civil case load is to do with land acquisition and titling disputes, with a tremendous percentage of those disputes arising out of land grabbing and misappropriation of property. The source said that it is imperative that as a part of social justice, the government ensures effective and speedy dispensation of justice.

To address these problems, a comprehensive computerised system of land title is being worked upon at both the provincial and federal government levels, to attempt to cure the root cause of so much of our litigation.

In order to further prevent frivolous litigation, the imposition of heavy court costs on parties or lawyers seeking frequent adjournments is being considered. This may be done by the judiciary. The government is working on the introduction of timelines with milestones, with penalties for non-compliance.

System of costs of litigation will also be introduced, regardless of which litigant is ultimately victorious. Those costs i.e. pertaining to the launch of an unsuccessful, frivolous claim, shall remain, but whosoever is found to impede the course of justice will also pay costs; as will whoever infringes the prescribed time period.

The sources said that in consonance with this step will be resolution that requires no courtroom: alternative dispute resolution (ADR), whereby matters which may be taken before a judge are settled by parties through their legal representatives out of court.

In most developed jurisdictions, alternative dispute resolution is frequently employed as a valued tool to avoid lengthy and costly litigation. Pakistan is a latecomer in recognising the value of ADR as a means to mitigate the misery inflicted by long, contentious court battles.

The government is currently considering fresh legislation that will vastly expand this practice, as well as streamline ADR as the go-to mechanism for disputes best left out of court – this will include establishing centres for mediation and arbitration, and adopting international best practices in managing those disputes.

To turn to the structure of the judicial system itself, the sources said the government finds an endless process of appeal. It is said that these fora are manifold and revisional: firstly, the civil court, secondly, the additional district judges, thirdly the high court, fourthly the intra-court appeal (in some matters), and then the Supreme Court.

It is considered to revise the system by abolishing the court of first instance — the civil court. The civil judge will be replaced in favour of the additional district judge, whose focus shall be strictly limited to civil cases. banking, customs, and other such courts shall all be abolished in favour of specialist judges within the district court hierarchy.

Having dealt with the overall structure, it is said, there are also particular aspects of the system that warrant reform all by themselves.“It merits special mention that one of this country’s most onerous tasks is obtaining a succession certificate,” a source said, adding that this ordeal takes almost six months to a year, with such cases constituting nearly 20 percent of the total case load. This load from court could be undone forthwith by giving Nadra the authority and power to do the needful in non-contentious matters. The required mechanism is being evolved to this respect.

Regarding the flaws in the existing court’s summoning system, the inordinate delay stemming from the issuance and receipt of those summoning could be checked by privatising the matter, which will eliminate both corruption and slackness on the part of government agencies.