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Friday July 01, 2022

Law reforms

December 23, 2021

“No progress can be achieved without giving Pakistan a well functioning and fully optimal legal system", said our founding father, Quaid-e-Azam Muhamad Ali Jinnah who was a statesman of abounding vision and a lawyer of repute. Unfortunately Pakistan today suffers from a dysfunctional legal system which is failing to match the fast changing needs of our society and is being regarded as a 'legal wasteland'. It, therefore, warrants in-depth analysis and cooperation of all stakeholders including the government, legal bureaucracy, judges, academicians, legal researchers, law schools, bar councils, bar associations and the entire society at large to make the system more vibrant and effective.

Areas which merit immediate attention by all concerned include efficient case management in both civil and criminal trial courts, measures to clear backlog of cases, introduction of 'law of cost' and payment of heavy penalties for deliberately delaying proceedings. All order sheets, judgements and cause lists of all courts need to be put online to save time, effort and ensure transparency.

We need to amend Section 182 of the PPC to discourage frivolous and malicious litigations. A report was prepared by the Committee of the Whole Senate of Pakistan in August 2015 which identified the need for immediate judicial reforms to ensure provision of inexpensive and speedy justice. It also highlighted the following grey areas which resulted in prolonged litigations: one, many agreements between opposing parties are unwritten and unregistered so it becomes difficult to uncover the truth which causes a delay.

Two, written agreements like Sale and Gift Deeds, Rent Agreements and Partnership Agreements are seldom vetted by experienced legal experts. The claims thus suffer from ambiguities. Three, without assessing the merit of the case, most lawyers advise clients to file lawsuits. In the absence of an Alternative Dispute Resolution (ADR) mechanism, courts are unnecessarily burdened, and innocent defendants dragged in the courts for many years while the litigating plaintiffs only stand to lose their lawyers' fee. This trigger-happy approach is continuing because there is no foolproof ‘law of cost’ and penalty for false allegations.

Four, lack of initial scrutiny of the cases, deliberate non-servicing of summons and lack of any logic for repeated case scheduling cause avoidable delays. And, finally, frequent adjournments of cases on one pretext or the other with no cut-off deadlines has resulted in a pile-up of hundreds of thousands of cases. Besides, stays are available at the drop of a hat. Even the time required for execution of proceedings and implementation of a verdict involves a very lengthy process.

To reform the legal profession, we need to upgrade the standards of institutions that impart legal education. This may involve the improvement of the standard of curriculum to match international standards. These institutions should also impart education on legal ethics.

Pakistan Bar Councils and the Higher Education Commission can play a pivotal role in consultation with the law ministry. Entry tests for law graduates should be introduced and interviews for issuance of licences for practice should be religiously done to discourage entry of incompetent and unsuitable candidates in the legal profession. Similarly, to ensure foolproof induction of judges based on merit and talent, the candidates must compete at the national level through the Federal Public Service Commission. The Law and Justice Commission of Pakistan is duty bound vide the LJCP ordinance 1979 to constantly work for the improvement, modernisation and reformation of the legal system.

This institution has unfortunately failed to perform this statutory duty. It needs to be reactivated. Similarly, while the National Judiciary Policy Making Committee (NJPMC) – created in 2002 through an ordinance comprising chief justices of all the constitutional courts – has devised the National Judicial Policy in 2009, unfortunately it has not excelled in judicial reforms.

Besides, there are other statutory bodies which must be activated to propose law reforms. These include federal and provincial judicial academies, the Ministry of Law, Justice and Human Rights, and reform committees of bar councils, bar associations, the Council on Islamic Ideology and Senate and National Assembly Committees on Law Justice and Human Rights.

Judicial reform is a constant process which warrants a visionary leadership with strong political will, which unfortunately has been invisible in Pakistan after Quaid’s death and Khan Liaqat Ali Khan’s assassination.

The writer is former chairman Senate Standing Committee on DefenceProduction.

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