Daily Times

An independent and impartial judiciary, which runs on a fast and efficient system, is the hallmark of civilisation. However, our justice system, by its very nature, has become cumbersome, unbearably slow and inefficient.

Our laws, their interpretations, and their judgments, have led to enormous misery for litigants and forced people to seek extra-legal alternatives.

Many aspects of our legal system need revisiting. To start with, we need to address delays. Any delay in the prompt resolution of a criminal trial violates the right to life and freedom guaranteed by Article 21 of the Constitution. The debate over judicial delays has raised a number of ideas about how the judiciary can put its own house in order.

Second, in almost every High Court in the country, there is a great margin for manipulation.

Third, the position of the Chief Justice of Pakistan (CJP) is transferable. This practice was introduced in our country after the imposition of the “emergency”. The President of the Supreme Court, who enters for a brief period of six months, one or two years, is a new person. Instead of a seasoned person who understands the system, we must rely on someone who is dependent on others for political decisions in administrative matters.

Fourth, the judicial process is very complex, costly and slow, which creates a distance between the poor and justice. Finally, lawyers, in addition to being champions of various laws, also have a social responsibility to help the ignorant and disadvantaged to obtain justice.

There is very little conversation about the constructive steps needed to fix the system. Public outrage over perceived failure of justice have not let to any reforms.

Complaints against the police can be handled by executive orders within the police department. This would save the courts time

Take for instance the APS tragedy. In 2014, what was called a watershed moment for the country, led to no real change. Back then, it was agreed that military tribunals would try terrorism suspects for a period of two years. Presumably, the idea was that in the meantime the gaps in the criminal justice system would be resolved. However, instead of being the provisional measure that it was supposed to be, we have seen the inevitable extension of military courts.

Similarly, after seven-year old Zainab was brutally raped and murdered in Kasur, the war cry consisted of public hangings and a trial under counterterrorist laws in the country. It seems that we have chosen to establish temporary relief measures that do not address real problems. Such incidents should create an appetite for judicial reform in the country.

In addition, laws that cause delays should be repealed. Take the example of Articles 22-A and 22-B of the Code of Criminal Procedure (CrPC), 1898. The complaint mechanisms provided under the 2002 Police Order should be used effectively. Complaints against police officers can be handled by executive orders within the hierarchy of the police department. This would save the courts the time they spend dealing with complaints against police forces. District courts would then be able to spend more time on other cases by conducting day-to-day trials.

With respect to the handling of cases, the courts, including the courts of appeal and constitutional courts, should be digitised. If technology is used to process cases, we can cut down on the time taken to deliver justice. New cases could be filed electronically and automatically set for hearings. Even judgments could be dictated using speech recognition software. Similarly, technology can be used to compile evidence and present it in criminal trials via video link. The legal fraternity could also use technology to quickly review existing case law, helping them sharpen their arguments and gain more time in court.

In addition, alternative methods of dispute resolution (ADR) could be integrated in two ways to reduce the backlog of case, both for formal court proceedings and for those who cannot afford to bring their disputes before the courts. This is a particularly important proposal because it promises to provide justice to the voiceless in our society.

Most importantly, the problem of unnecessary postponements was discussed by CJP. It was pointed out that deferrals should not be requested by the Bar Association and should not be granted by the courts, except in exceptional circumstances. The Code of Civil Procedure, 1908, and CRPC 1898, can be amended to clarify the “unavoidable exceptions” to deferrals. In addition, significant cooperation between the bank and the bar has been highlighted to avoid frequent postponements.

The President of the Supreme Court of Pakistan (CJP) has shown great willingness to implement these recommendations by forming a committee headed by a senior CS judge, Judge Asif Saeed Khan Khosa. It is not expected that these reforms will be implemented in the next four months. However, all interested parties should fully support these reforms for the overall improvement of our justice system. At the same time, the Supreme Judicial Council, led by the CJP, must conduct an audit of the performance and accountability of the judges in order to carry out judicial reforms.

You don’t have to wait for the legal system to come up with an idea for law reform. Community groups, people working with the law, and members of the public who have taken part in any legal process, are often the best people to reform law.

“I have always found that mercy bears richer fruits than strict justice.” ? Abraham Lincoln

The writer is a Quetta-based columnist and independent researcher. He can be reached at asadhussainma@yahoo.com

Published in Daily Times, June 11^th 2018.