Legal reforms
IN the wake of the recent Supreme Court judgement about the military courts, reforming our justice system has become imperative. We have a weak legal apparatus; of that there is no doubt. The World Justice Project’s Rule of Law Index 2015 which collates data across various categories — including corruption, order and security, fundamental rights, and the civil and criminal justice systems, etc — to arrive at its assessments, ranks Pakistan 98 out of 102 countries.
The weaknesses in our judicial system cannot be attributed to the judiciary alone as the latter has certain procedural and institutional limits. Moreover, the bench works in coordination with other government departments which means the inefficiency of other departments also serves as a contributory factor in the overall performance of the judicial system.
However, charity begins at home, and legal reforms too should begin with the members of the legal profession. I look to the collective wisdom of the bench and the bar and invite their attention to three important reforms: capacity building of lawyers, strengthening the judiciary, and reforming the bar councils.
The bar councils are crucial to improving the system.
The training of our young lawyers which underpins their professionalism and performance, is not adequately prioritised by our bar associations, law colleges and universities, and our government. There is an urgent need for capacity building of the lawyers through continuous legal education, a national law clerkship programme, and more extensive pro bono legal aid work.
A young lawyer in Pakistan faces a dilemma: either start practising without proper on-the-job training or face long-term financial constraints working with senior members of the bar. There are few law firms that pay a young lawyer enough to raise a family. We therefore need to be concerned about our younger members.
The seniors should engage junior lawyers in preparing and presenting court cases so that they could be better trained and engaged in the profession. It should also be appreciated that many lawyers do not have flagship degrees; instead, they have potential and aspirations. They are, in fact, the backbone of this profession and have the ability and desire to make things happen.
These lawyers could also be engaged with the Supreme Court, high courts, district courts, and the offices of the attorney general and advocate general under a national law clerkship programme. The bar councils may allocate and generate special funds to put these ideas into practice while seeking additional support from government and international organisations.
The recent judgement on the military courts further indicates the need for improvements in the system itself. To this end, we need to prioritise legal reforms. The independence of the judiciary depends not only on the letter of the law, but also public confidence.
For the sake of public confidence and institutional integrity, Article 175-A may be amended to provide a double-ended constitutional mechanism for nomination of judges by the high courts. The composition of the Judicial Commission of Pakistan could also be reconsidered. In many countries, judicial appointments are a collaborative process without any fear of the judiciary’s independence being compromised in the process.
If we have a strong higher judiciary, it will influence and better monitor the district judiciary’s performance. The judges in the higher and lower courts both should be provided training in court/case management for expeditious disposal of cases. Continuous training in every profession is a common phenomenon in developed countries.
We have some exceptionally competent judges; however, our judicial system seems to have failed in managing the increasing workload. It is high time to learn from other jurisdictions.
There is a perception that our bar councils have become increasingly politicised. To address this, we must take steps to make our bar councils effective regulatory bodies focused on monitoring legal services. They need to introduce strict requirements and procedures for entering and continuing in the legal profession, and enforce professional standards, taking a cue from professional bodies such as the Law Society of England.
As to bar politics, the bar councils should allow a fair opportunity for contesting the elections and issue a code of conduct for the electoral process. As members of a learned profession, we should try to adhere to the values of decency and integrity to set an example that can be followed in politics on a national scale; thus, we should demand a fixed ceiling on expenses by amending Rule 10-A and Rule 31-A of the Pakistan Legal Practitioners and Bar Council Rules, 1976. This measure will also save the lawyers some hard-earned income.
Finally, bar members must demonstrate their desire for reform by making changes in their own law and practice to support the larger judicial system.
The writer is a lawyer based in Lahore.
Published in Dawn, August 30th, 2015
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