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December 17, 2018

Law reforms with the 18th Amendment

Opinion

December 17, 2018

The wellbeing of the people and the economy are dependent upon an efficient legal and justice system. Legal reforms are, therefore, inevitable in the existing substantive and procedural laws.

All laws need to be reviewed and codes prepared subject-wise, like the Election Act, 2017. During the course of these reforms, a number of laws (enacted during 1850-1910) based on common-law principles evolved in the 19th century by British courts have become outdated, as the foundational jurisprudence changed, and need to be revised/re-enacted. Our courts sometimes introduce new legal principles from foreign jurisdictions but it is a rather cumbersome task even for a legal counsel to advise his client in view of the fluid legal position.

Some countries have introduced re-statements of laws, which is a very useful way of placing together the latest legal principles. Jurisprudence evolved in Pakistan, especially in the last decade, needs to be critically examined and reconciled and if found expedient incorporated into laws. Laws and the court system both need reforms.

There was only central legal authority (East India Company or the British Crown) in India when these laws were enacted. Starting from the Regulating Act, 1773, the constitutional acts of 1857, 1861, the Government of India Acts 1909 and 1919, all envisaged a central legislative authority, the governor-general or the legislative council. The Government of India Act, 1935 introduced a federal system in which legislative powers were distributed between the federation and the provinces. Accordingly, provincial laws were enacted but most of them are outdated.

The Civil Procedure Code of 1909 replaced the civil procedure code of 1882. The penal code was enacted much earlier in 1860, while the Criminal Procedure Code was enacted in 1872, 1888 and 1898. The law of evidence, which is the arc of the justice system, was enacted in 1872. The Qanoon-e-Shahadat Order, 1984 did not change the substance. The Contract Act was also enacted in 1872. There is a long list of statutes enacted during this period. Our whole legal justice system is primarily based on the legal precepts of the 19th century.

The court system was organised on a unitary form basis. The high courts were constituted under different letters patent and constitutional instruments. Other high courts were established and their jurisdiction defined under the High Courts Act, 1861. Subordinate civil, revenue and criminal courts were established under different statutes – all around 1850-1900. This system worked very efficiently for some time. Law reports of that era bear witness to that.

The task of reforming these laws and the justice system is very tedious and gigantic. The federal government seems committed for it knows that a viable and efficient legal system is necessary for economic growth and prosperity. Foreign investment can only be attracted if there is an efficient legal and justice system. The tumbling block in the way of these reforms however is the new constitutional dispensation, in which the federation may not have much power to amend laws and introduce reforms.

Owing to the 18th Amendment, the federal government’s legislative and executive spheres have been drastically reduced. The first four entries of the erstwhile Concurrent Legislative List (CLL) (in the 4th Schedule) of the constitution related to criminal law, criminal procedure, civil procedure and evidence law. With the omission of the CLL, many other substantive laws were no more within the legislative competence of parliament. Criminal law, procedure and evidence law, under Article 142(2) of the constitution confer concurrent power on parliament along with the provincial assembly in these matters. Under Article 70, however, a bill with respect to any matter in the Federal Legislative List (FLL) may originate in parliament.

There is no legislative entry in the FLL in respect of criminal law, criminal procedure and evidence. This omission is probably the result of having been overlooked. Parliament should still effectively legislate upon these matters. Under Article 270 AA (6), all laws with respect to matters in the CLL shall remain in force until altered, repealed or amended by the competent legislature ie the provincial assembly. The consequence would be thus: the power to amend the Civil Procedure Code and the Limitation Act is now vested in the provinces.

The criminal code, penal code and evidence law are, according to Article 142 (2), concurrent matters. But since these matters are not mentioned in the FLL, legislation on these matters by parliament is not without difficulty. In case of conflict between laws made by parliament and provincial assemblies, more litigation shall ensue.

It is doubtful whether the president can enact/promulgate an ordinance in respect of such matters under Article 89 while making combined reading of Articles 70, 73 and 89. Important matters like marriage, divorce, arbitration, contracts, partnerships, agency and other types of contracts, trusts and trustees and evacuee property etc are now provincial subjects. Litigation regarding labour laws ended up in the Supreme Court, which ended the ordeal after six years.

The subordinate judiciary needs to be reorganized. Commercial jurisdiction may be conferred on civil courts and parallel criminal and civil courts may be merged into a single hierarchy of criminal and civil/commercial courts. All special courts may be ended. Appointments to judicial offices should be made on merit and beyond personal liking. Appeal to the Supreme Court may be subjected to a certificate by the high courts in provincial subjects and its pecuniary jurisdiction may be enhanced too. A new test for grant of leave to appeal should be evolved. Heavy costs should be imposed on frivolous litigation.

It is imperative that proper law reforms are introduced in our legal and justice system – ensuring certainty, efficiency and transparency and leaving no room for manipulation. Investor confidence in our legal system needs to be built to avoid expensive foreign arbitration. The federal government may also consider hiring foreign legal experts to train law officers and advocates. Reforms at the federal level may be insufficient. Provinces need to be taken aboard too.

Article 144 of the constitution provides a solution for uniform legislation on subjects now in the provincial domain. The experience is, however, not very encouraging. Moreover, even if a uniform law is framed, provinces retain the power to amend that law and thus there will always be a potential for trouble. Also, the said article refers to the power to regulate – which is not the equivalent of executive authority over the subject. It is thus not a very clear route but let us endeavour to do well.

The writer is an advocate of the Supreme Court and former additional attorney general for Pakistan.

Email: [email protected]

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