Daily Times

A little less than 102 years ago a conference on October 21, 1916 brought the who’s who of Bombay’s political leaders together to discuss the issues pertinent to Bombay Presidency in particular and India in general. It was presided over by a 40-year-old lawyer who was a prominent leader of both the Indian National Congress and All India Muslim League at the same time. His name was MA Jinnah. Also present amongst the delegates was the lawyer’s close friend and till then his long-time ally, another lawyer and a political activist, Mohandas Karamch and Gandhi. These two lawyers, future fathers of the nations of Pakistan and India, helped pass a resolution calling upon the Bombay Government to withdraw its decision to suspend trial by jury in Belgaum district. A few years later when the notorious Rowlatt legislation made its way to India, one of the key measures that both Jinnah and Gandhi objected to was the fact that for those accused of revolutionary crimes, trial by jury was not an option. The searing irony is that neither Pakistan nor India has jury trials today.

In my humble opinion, trial by jury is essential to any democracy. You can have as many elections as you want and as many elected leaders as you want but unless you have the idea of trial by jury of one’s peers, at least when it comes to criminal charges, you cannot have a real democracy. Of course, there were many reasons why countries like India, Pakistan, Bangladesh and even South Africa abolished trial by jury, but those reasons were the same old hackneyed colonial arguments that Jinnah and Gandhi encountered in 1916 – that people were too illiterate to be trusted with something as serious as determining the facts of a particular case. Well jury service can have many forms. We just have to find a form that works for us. This could be done through a jury selection board and we can have a permanent pool of jurors selected from applicants who are paid a stipend and who are adequately trained to understand the legal system. Furthermore, we need not have juries in every form of litigation. Having juries in trials before courts of sessions however, is a workable idea. The role of the Judge should be to decide motions, questions of law and to hand down a sentence in light of the findings of the jury. Questions of facts in key trials at Sessions Courts should be decided by the jurors alone.

Obviously, we would have to craft a jury system suited to our unique needs in Pakistan. It would need a degree of consociational approach. The number of jurors need not be 12,but this is the most rational number, especially when we consider the system I am proposing here. Similarly, we need not insist on a unanimous jury decision but rather three fourths. To ensure that the tyranny of the majority and populist sentiment are adequately checked, I would recommend that for each case where a minority citizen is a party, half of the jurors should be Non-Muslims as defined by Article 260 of the Constitution. This would be in line with our constitutional as well as our religious commitment to giving Non-Muslims a fair deal. Furthermore it is important to ensure that on any jury, in any event, there should be mandatory representation of six women out of 12 jurors. This would ensure that all forms of majoritarianism and patriarchal ills are countered effectively.

To ensure that the tyranny of the majority and populist sentiment are adequately checked, I would recommend that for each case where a minority citizen is a party, half of the jurors should be Non-Muslims as defined by Article 260 of the Constitution

The requirement of a jury would have a salutary effect on the entire legal system. At least trials at the sessions would have to confirm block dates with day to day hearing – as is already provided under the law — and we would be able to at some level ensure that cases are decided on time with the appeals being left to be decided by the appellate forums.

It would certainly up lift the legal profession, which has fallen into drudgery and complacency over the last few decades. Faced with the idea of actual persuasion, convincing lawyers would hold themselves to a higher standard. To ensure that there is a level playing field of course the language of the court should be open to English as the official language, Urdu as the national language and the provincial or local vernacular, including Punjabi/Seraiki, Sindhi, Balochi, Pashto, Brahui and Gujurati. This fits in with the constitutional fundamental right of every citizen of Pakistan that allows protection to all languages and cultures in Pakistan. The key elements of the trial, opening statements to the jury, examination and cross examination of witnesses and evidence and finally the closing statements should be preserved in accordance with the highest standards of the English legal tradition as practised in the UK, US, Canada, Australia and New Zealand. The decision and sentencing should happen immediately so that the appeals process can begin in earnest. Our legal procedures have everything in place to ensure that this can be incorporated with relative ease. Therefore, I appeal to the Honourable Federal Law Minister, Mr. Farogh Naseem, to kindly take this into consideration when talking of legal reforms.

The famous Churchillian statement – “are the courts functioning”- did not refer to rudimentary aspects achieved through a façade of a legal system. He meant trial courts in particular and those will only function when we — the lawyers in this country — do our job effectively and to the best of our ability. The impact of a legal system that works would reform the country from top to bottom. After all, that is the promise on which the current ruling party came into power – justice. Time to deliver my dear Prime Minister and Cabinet Members.

The writer is practicing lawyer and was a visiting Fellow at Harvard Law School in Cambridge MA, USA. He blogs at http://globallegalforum.blogspot.com and his twitter handle is @therealylh

Published in Daily Times, October 1^st 2018.