Dr. Bajwa – Historian and trained legal mind – argues that Pakistan’s colonial era legal system is archaic, reeking under challenges of modernity and is unable to serve country’s growing needs for global integration, credible commercial transactions and justice for the common man. He presents an overview of the legal and judicial reforms that are urgently needed to ensure internal peace and harmony.
A starting point of any legal reforms discussion needs an immediate point to be emphasized; first, law and legal practice in any country cannot and does not exist in a vacuum. It is almost invariably a reflection on how society operates. Secondly, any lasting and real reform has to come from within Pakistan. Many well-meaning and publicized legal reform programs have been funded and directed by international bodies, but they rarely have a lasting or real impact. Unless the people who benefit from the system (the one percent) agree on giving the most economically deprived society members equal access to justice, nothing of any real significance will change.
It is also a truism that it is a fundamental prerequisite of any country, which wishes to ensure internal peace and justice that there is a fair and just legal system; with all the aspects that the phrase implies. The unfortunate truth is that Pakistan has all the issues of a post-colonial state and has, by and large, kept the old systems intact. Even though the population’s social and economic situation is now completely different to 1947, there has been a reluctance by those in government – elected politicians and military rulers – to change a system which benefits those with power as it all but guarantees them immunity and the ability to act with impunity.
The invisible costs of this failure to reform the legal system manifest themselves in different ways, but all have the same root cause; mob violence, appalling acts of unpunished violence (especially towards women and children), lack of domestic and international investment and use of the courts more as a means of harassment than an attempt to resolve issues fairly.
By 2030, Pakistan will be a very different country than today; the world is moving fast, but given Pakistan’s young demographics, many more people will have legal issues and an already overwhelmed judicial system will be facing total gridlock if major structural changes are not made soon.
The following are recommendations:
1. The establishment of a Judicial Commission, which reviews the legal system and cases every five years. This will ensure that archaic (often colonial-era laws) which serve no useful purpose should be recommended for review or abolition. The entire Criminal and Civil Code needs to be reviewed and streamlined by this commission, and it needs to have Constitutional protection for its recommendations. It is critical that all sectors of society are represented in this discussion, or there is a real danger that no new ideas will be adopted.
2. A new legal degree and vocational training need to be set up in the light of the new Criminal and Civil Code. This should be a minimum of a three-year degree and entering the legal profession should be made rigorous – both in terms of academia and ethical standards. A Regulatory Board (with full powers of dismissal from the profession for both lawyers and judges) needs to be established comprising retired lawyers and judges with an impeccable reputation.
Read more: A look into Pakistan’s justice system
3. A Judicial Service for the appointment of Judges needs to be re-instated. Judges should have clear independence as well as oversight of police investigations. Independent Investigating judges have been shown as far away as Italy (taking on the mafia) to Brazil (taking down a corrupt political party) to be invaluable. This can be part of a Judicial Service independent of government and allows for a major degree of legal autonomy.
4. First-tier courts need to be set up in every Union Council of Pakistan. They should deal with all the local crimes and manned by the first tier of judges. All proceedings must be in the local language of the area, and ideally, a CCTV recording of the proceedings should be made. Except in cases of children or unfair reputational damage, these proceedings should be available to view on a government website. The sheer lack of judges and the distances that need to be travelled for litigants is a severe deterrent to commence a civil case and those who do so, often regret. Pakistan currently is understaffed both in terms of lawyers and judges. This makes even employing a lawyer a fraught business and for the majority of the population financially difficult.
5. Urdu and the local language should be the only permissible medium of instruction in legal training and practice. The current use of English effectively excludes the vast majority of the population from understanding or participating in the legal process. It is inexcusable that even 75 years after Independence, Pakistan’s Court system is in effect excluding more than 80% of its population who have no working knowledge of English.
6. Artificial Intelligence (AI) should be used where possible to resolve simple disputes. The US website ‘eBay’ handles around 60 million disputes through AI per year with a very high level of satisfaction. Simple financial or property disputes need not clog up the system. AI also assists in avoiding accusations of bias and is hugely efficient in terms of costs and time. Programs in the USA have shown the AI programs are better in deciding bail applications than humans as human bias is eradicated. This will take time to embed but is critical for clearing the huge backlog of simple cases that are stuck in lower courts for years.
7. The police need to have a two-to-three-year training program to ensure that even the lowest ranking policeman is fully capable of doing their jobs professionally. The police force should also be broken up to a divisional level, not at provincial. The recruitment and appointment of police officers should be on pure merit, and salaries/pensions should be at a level that there is no need for corruption. The loss of police salary would be a real deterrent to serving officers.
8. Members of the public should be encouraged to assist both the police and judges in their work; mass participation in the criminal and legal system has increased faith and understanding of the legal system.
9. In sensitive cases or where there is a fear of witness intimidation or local pressure, cases can either be heard remotely by a judge in another district. The well-known practice of social pressure on the victim must be reduced or made ineffective.
Read more: Dissecting Pakistan’s legal system: growing rot
10. Judges need specific training in case management. The ease with which cases are delayed due to requests for adjournments or last-minute requests is unacceptable. Judges should themselves be judged on the efficiency of case progression and conclusions.
11. A basic legal course should ideally be taught to every citizen to know the laws, rights and responsibilities. A website in local languages should set out the law so that any citizen can access and understand the laws that govern them. The current situation where the laws are written in English excludes the vast majority of the population by default. Many litigants and defendants in court proceedings have no idea what is being discussed or agreed in their name.
12. An informal but fair system of dispute resolution with the need for a formal judgement. Alternative Dispute Resolution is an increasingly valuable tool in many legal systems. From personal experience, the majority of financial disputes are better resolved through a compromise rather than a winner takes all approach.
Read more: Borrowed governance system of West not fit for Pakistan
An inadequate and ineffective legal system has mostly losers; the economy at large, businessmen who want to enforce legal contracts, owners of land who want to protect it from local thugs who encroach or steal land. The only beneficiaries are the politically and legally powerful small segment of Pakistan which almost prides itself on being above the law. If the events of the last few weeks have taught us nothing else, it is that such a cavalier attitude to the law does not impress the international legal community. If Pakistan is not to be left behind even further than our Asian neighbours in terms of economic development and human potential, this legal reform process should begin soon enough.
Dr. Farooq Bajwa wears multiple hats; after his Phd, in International Relations, from London School of Economics, he has taught history in Pakistan and the UK; he is author of books like, “From Kutch to Tashkent” and “Pakistan and the West”. He also trained and practiced as a solicitor in London and advised clients across the UK, Pakistan and the Middle East. He has now moved back to Islamabad, his firm “Bajwa & Co” has merged with Burlingtons Legal LLP. He specializes in international commercial law, media and defamation and increasingly in Data Protection and GDPR claims -and has a deep interest in legal reform. The views expressed in this article are the author’s own and do not necessarily reflect the our policy.
