Waiting for reform
EVER since independence, there has been no major reform of the judicial system in Pakistan despite a growing realisation of the dire need to proceed with it. This is because the body entrusted with the responsibility of reforming our laws is woefully inadequate at doing its job.
The Law and Justice Commission of Pakistan was established in 1979 for the “systematic development and reform” of our laws. As yet, the Commission has failed to undertake any major civil or criminal law reform.
At the heart of its inefficiency lies its existing composition. Under Section 3(1) of the Ordinance, the Commission consists of 13 members. Nine of these are ex-officio — drawn primarily from the senior judiciary. This includes the chief justice of the Federal Shariat Court, the chief justice of Pakistan and the chief justices of the provincial high courts. Such composition undermines the effectiveness and efficiency of the Commission inasmuch as it is simply not possible for members of the judiciary to devote significant time towards the furtherance of the Commission’s objectives. Resultantly, the Commission lacks the capacity and energy to undertake any portentous legal reforms — the kind of which Pakistan and its judicial system so desperately need.
Moreover, in addition to the nine ex-officio members who do not work full-time for the Commission, the remaining four are nominated by the chairman. Alarmingly, these, too, are not full-time members of the Commission. Unlike the UK, where appointments to the Law Commission are full-time, membership of our Commission does not preclude the member from discharging his/her existing duties. Thus, a practising lawyer may continue full-time private practice whilst still being appointed as a member. Similarly, a legal scholar appointed as a member of the Commission may continue private research and at the same time, enjoy all the perks and privileges of being such a member, without undertaking any meaningful work on behalf of the Commission.
With such a structure in place, the conclusion that follows is simple: the function of ensuring the Commission’s smooth running has, for all practical purposes, been entrusted to a group of members who cannot devote their full time to the Commission.
The Law and Justice Commission is performing inadequately.
This issue is further compounded by the fact that the chief justice of Pakistan serves as Commission chairman. Among other things, the chairman is empowered to direct that any particular law be examined, constitute committees for that purpose, solicit advice and publish any work undertaken by the Commission. In short, all decision-making powers vest in the Commission’s chairman. Ideally, the position demands dynamism, creativity, initiative and enterprise — none of which can be satisfied by an incumbent chief justice who is burdened by the exigencies of judicial duties.
Furthermore, in recent years, the Commission’s ability to “study and keep under review on a continuing systematic basis” the laws of Pakistan has been diminished by burdening it with additional functions. In 2002, for instance, the Commission was given the additional charge of managing and administering the Access to Justice Development Fund, a statutory endowment fund geared towards increasing legal empowerment and improving service delivery in the judicial sector.
In the same year, it was also tasked with ensuring the implementation of the National Judicial Policy in coordination with the National Judicial (Policy Making) Committee. With such amendments, the Commission transformed from an independent research-based organisation into a wing of the Supreme Court that now acts as a fund manager, implements judicial policy and, occasionally, works on issues of law reform. This explains why the Commission has always found it difficult to complete, let alone initiate, a serious programme of law reform.
‘England and Wales’ have had a different experience with its Law Commission. Since its inception in 1965, the country’s statutory law reform body has repealed 3,000 obsolete statutes, introduced 220 acts for consolidation and has prepared more than 200 law reform reports.
Three crucial differences account for its productivity. Firstly, the Law Commission is an independent law reform body — independent not just from the government but also from the judiciary. Secondly, its statutory mandate is clearly defined: to keep under review the law “with a view to its systematic development and reform”. The Law Commission is, thus, not required to venture into implementing policies and managing funds. Thirdly, appointments to the Law Commission are full-time. This enables the Commission to undertake not just a serious programme of law reform but also build in a truly participatory and consultative component to the entire process.
In this context, until our Commission is reformed along these lines, chances of any systematic reform of the judicial system remain bleak. Any reform of our laws must first begin with the reform of our own Law Commission.
The writer is a lawyer.
Twitter: @bbsoofi
Published in Dawn, September 20th, 2015
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