PROPOSED LAW REFORMS

Introduction

The modern state and its society usually grow with their law. Quintessentially, the laws in Pakistan are outdated and archaic. The operating system of the governance is the legal framework, which must keep pace with the latest developments. To cater for this aspect, the government is considering introducing law reforms in many an area. The instant article will briefly state the concepts and areas that are being considered for law reforms. In absence of actual drafts of the proposed laws, the conceptual part of the proposed law reforms may be discussed here:

1. Police Laws

‘The organizational law of police’ falls into provincial legislative competence; ‘the law of policing’, in contradistinction, falls into the federal legislative domain. Though the two sets of laws must concur and complement each other, the present scheme of things arranges them in a manner that the two sets of laws derive their legality from different legislatures. Owing to this feature of the legislation on policing, the Government of the Punjab is working on an amendment to the Police Order, 2002, that will provide a legal cover to the Dispute Resolution Council (DRC) mechanism in the Punjab province. The amendment is apparently modelled on the similar amendment that was introduced in Khyber Pakhtunkhwa (KP) before the introduction of the KP Police Act, 2017. Besides, the role of police in the local government system is also under study so as to link it to the local government law (the Punjab Local Government Act, 2013) that provides for panchayat mechanism for village councils.

2. Improving Civil Justice

Former Chief Justice of Pakistan Mr Justice Jawaad S. Khawaja used to say that the average time for a civil litigation to conclude is about twenty-five years. To check the tendency of prolonged civil litigation, the government is considering introducing a system of civil justice that will comprise two tiers: one to deal with interlocutory matters; and the other with the main case. In theory, it looks very attractive, but such a neat distinction of processes in practice will be a challenge to implement. In addition to the two-tier system of civil justice, the civil judges might be given power to carry out ‘spot checks’ in cases related to land, immovable property and revenue. Efficient electronic modes of service of parties are also being explored. These changes, if brought, will be introduced through the amendments to the Code of Civil Procedure, 1908.

3. Streamlining the Appellate Processes

At the moment, there are two appeals in a civil case with revision and review processes; the proposed law reforms are aimed at reducing the number of appeals from two to one.

4. Costs

As litigation is not much expensive in Pakistan, the law of costs was introduced through sections 35 and 35-A of the Code of Civil Procedure in order to check frivolous and vexatious cases. The law reforms might introduce ‘adjournment costs’ and ‘special costs’ to further penalize the trend of abusing court process. It may be noted that the recovery of the costs imposed in civil matters by the courts is not an easy task, and is usually resisted by different stakeholders.

Read More: REFORMS AND THE POLICE FORCE

5. Legal Aid Law

Despite less expensive litigation in Pakistan, in comparison to the developed countries, there are segments of the society that do not have awareness or resources to assert their legal rights by taking them to a forum provided by the law. The legal aid law will constitute an authority that will cater for both awareness and funding aspects of the access to justice. The law may be styled as the Legal Aid and Justice Authority Act. In absence of discreet screening for its qualification and a sustainable stream of funding, it will be difficult for the legal aid mechanism to effectively contribute towards the access to justice in the country. It may repeal the Women in Distress and Detention Fund Act, 1996, another law that shares the objects of the proposed legal aid law.

6. Women Property Rights Law

The proposed law will be aimed at securing women’s rights to own and possess property by utilizing the institution of Ombudsman that was constituted under the Protection against Harassment of Women at the Workplace Act, 2010. The law, in its proposed form, authorizes the Ombudsman to initiate an inquiry and decide it summarily. The findings of the Ombudsman will be sent to the concerned Deputy Commissioner as well as to the police for implementation.

7. Electronic Letters of Administration and Succession Certificates

Currently, the heirs of a deceased have to file a suit to get the succession certificate issued in their favour under the Succession Act, 1925. The process is regulated by the civil procedure and therefore is time-consuming. The proposed law is aimed at legally enabling National Database and Registration Authority (NADRA) to issue electronic certificates through their succession facilitation units. In case of disputed claims, the matter will be justiciable through a civil court.

8. Whistle-blower Protection Law

In order to elicit insider information to curb corruption, a law is on the cards. Under this law, a commission will be constituted to receive, and process thereupon the information. The confidentiality of the whistle-blower will be ensured and his/her identity will be concealed. The information provided by the whistle-blower will be verified by institutions like NAB, FIA, FBR and SECP. In case of true information, the whistle-blower will get twenty percent of the amount recovered from the culprit. The law will repeal earlier statute on the same subject, the Public Interest Disclosure Act, 2017, that provided no institutional framework to protect the whistle-blower.

9. Litigation by Civil Servants

The public sector employees grow in unplanned manner in Pakistan. With multiple entry mechanisms and with options to get temporary employees permanent through litigation and disputes in seniority and promotion matters, administrative justice in service matters is emerging as sizeable part of litigation. The Constitution, through its Article 212, had provided for the establishment of an administrative tribunal, which was introduced in the form of the Federal Service Tribunal (FST) through the Service Tribunal Act, 1973. So far, the FST was a single-tier administrative court with limited powers. The new law aims to provide it with two levels of original as well as of appellate jurisdictions. In absence of strict test of admissibility of cases by the Supreme Court of Pakistan, it may prove as an added tier of justice system before a civil servant is able to get his right, which is easily lost in the maze of legalese and subjective opinions of assessing fora.

10. Enabling Law for Mutual Legal Assistance

International cooperation by states is a subject of international law as it needs the consent of two states that want to cooperate with each other in an institutional framework. The international legal assistance law, backed by international treaties between the states, provides the necessary wherewithal to see the fruition of efforts by executive and judicial authorities. The law is specifically required as a gold standard of cooperation between states in cases where restitution of property is in question. It may be noted that the law of restitution is much needed in Pakistan, especially in the backdrop of prosecution of corruption cases. The law of restitution deals with ‘gains-based recovery’ in contrast to law of compensation that is ‘loss-based recovery’. The law of mutual legal assistance is also a requirement of the anti-money laundering and counterterrorism-based recommendations of the Financial Action Task Force (FATF).

Parting Word on Law Reforms

The law reforms are nothing unto themselves unless they are implemented. Pakistan’s implementation record is not ideal by any stretch of imagination. In this context, it may also be noted that the agenda of law reforms needs to address the unfinished agenda of the National Action Plan that was passed after the Army Public School incident of 2014 besides the overdue reform in many an area of economic and social activity. The preservation of constitutional design is a chief area of concern insofar as the law reforms agenda is concerned. On practical note, the most important law reforms may be needed for civil servants as they have to implement whatever laws are introduced; without investing intellectually, materially and socially into civil service, the state and its institutions may have inchoate outcomes.