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January 14, 2020

The right kind of reforms

Opinion

January 14, 2020

Let us make frank avowal of the fact that treatment of the leaves would not eliminate the disease from the root, trunk and branches unless we start it from the root.

It is known that our police are not independent and impartial, as most of them are beholden to politically influential people for their appointments, postings and even promotions. They, as such, are often used as an engine by their benefactors for oppressing the downtrodden. In this state of things truthful deposition, honest and efficient investigation, fair prosecution and just decision of the case are inconceivable.

The poor people that make almost 70 percent of the population of the country can’t think of having access to justice. So they have to just bear the injustice perpetrated against them. All this shows that the entire fabric of the legal system, starting from the investigation to the final adjudication of the case, has been frayed. Darning ing in some places cannot repair it.

Wholesale measures have to be taken to breathe fresh life into an extremely morbid, almost moribund system. The system established for enforcing civil rights and liabilities too does not enjoy robust health. Any person who doesn’t have piles of money cannot think of getting their desired remedy in the civil courts. Expenditure on litigation, which also includes the cost of litigation and fee of the lawyer, has reached an unapproachable spiral.

The choice before the poor is either to litigate for their rights by putting at stake whatever they have or to live without such rights. In many cases, the cost of litigation is greater than the cost of the right one is robbed of. The system we have for the enforcement of rights and liabilities is designed only for the elite. The rights of the poor remain unenforced for want of means. Enforcement of rights and liabilities through the court has become a privilege – nay, a prerogative – of those who are rich. A lawyer who has acquired prowess and proficiency in his profession would not help someone who cannot pay his fee.

How to help the poor enforce their rights is a question, which despite being fundamental, is not answered by the protagonists of the status quo. Equality before law, rule of law or supremacy of the law has become a meaningless cliché in our society. Gone are the days when people rich or poor, privileged or underprivileged were given their due without going through the rigmaroles of procedural and substantive laws and technicalities involved therein. Many such laws have been simplified in the developed countries. But the system we are working under is as complex as it was at the close of the 19th century and advent of the 20th century.

We need thorough deliberations to work out a solution to the problem. Fresh legislation, amendment or repeal of obsolete and outdated laws have to be undertaken by parliament whose members do not think beyond the domain of municipalities by getting funds for construction of roads, streets, bridges etc. Legislation today has become something secondary. Chaos and confusion will reign supreme as long as the members of parliament do not realize that legislation is the chief engine for bringing about positive change in society.

Who will awaken the awake when members of parliament do not understand that performing the responsibilities of the municipalities elevates neither parliament nor any of its members. We run after glib and off-the-cuff solutions without taking stock of the situation and without undertaking a serious study of the phenomena. The result is that every proponent considers his/her solution to be the panacea. The worse is that such solution is applied to everything with messianic fervour, without considering its applicability. And the worst is that we stay far away from the solution of the problem which in the meantime gives rise to many other complexities, making it even more unsolvable.

It is time to focus on the problem, its dynamics and dimensions without ignoring its causes. If the manifestation is a headache, its treatment by administering a painkiller without diagnosing its causes would not be wise on any account. History is replete with examples of where treatment of this type brought the patient no enduring relief. Let us learn lessons from history, lest we repeat what we have been repeating for the last more than 70 years.

A reference to verse no 136 of chapter IV of the Holy Quran would not be out of place, which runs as under: “O you who believe! Be strict in observing justice, and be witnesses for Allah, even though it be against yourselves or against parents and kindred...And if you conceal the truth or evade it, then remember that Allah is well aware of what you do”. Another verse of the Holy Quran relevant in this behalf also deserves a reference which is reproduced as under: “O you who believe! be steadfast in the cause of Allah, bearing witness in equity; and let not a people’s enmity incite you to act otherwise than with justice. Be always just; that is nearer to righteousness. And fear Allah. Surely, Allah is aware of what you do”.

The message does not end here. It goes far ahead by enjoining the believers not to confound truth with falsehood or conceal the truth. The verse also merits a look which reads as under: “And confound not truth with falsehood nor hide the truth, knowingly”.

So long as the people are not educated and enlightened enough to call a spade a spade and state the truth against a perpetrator of a wrong of any hue, no system of justice – however refined and sophisticated it may be – can deliver goods. Speedy trials against this backdrop without educating the people, improving the modes of investigation and updating the standards of prosecution would amount to running fast on a track which does not lead to the desired destination. They can matter only when all other things enumerated above are in place.

Concluded

The writer is a former judge of the Supreme Court of Pakistan.

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