Monday, May 27, 2019

Improving Access to Justice.

Access to justice remains an elusive concept for most citizens of Pakistan. The new government, as part of its 100-day agenda, has announced various legislative amendments to improve the justice system in the country and the opposition parties will hopefully support the law reform objectives without political point-scoring.
A comprehensive legal reforms package is required for much-needed improvements in the civil and criminal legal procedure and removing irrelevant and outdated legal provisions. However, there are many steps that can be taken without extensive legislative debate, which can also improve the situation in a short span of time.
The following are some recommendations regarding steps that should be taken to improve access to justice, reduce the backlog of cases and make the justice system more efficient, transparent and accessible. Many of these recommendations have already been proposed by the judiciary and can be implemented by the judiciary itself, with support from the government.
For instance, the Peshawar High Court has introduced a Judicial Reforms Strategy for 2018-22. The 244-page strategy document lists in detail the operational, legislative and technology related steps required to be undertaken to improve the judicial system and access to justice in the province. Many of the recommendations contained in this document can be replicated in other provinces as well.

Has The Judicial System Legitimized Undemocratic Systems In The Past?

Introduction – Democracy and the Rule of Law
Owing to constant unconstitutional behaviors in the past, Pakistan has remained a weak democratic state and democracy has become a mere slogan.
Democracy is a universally recognized ideal form of government. The Universal Declaration on Democracy (UDOD) necessitates judicial institutions under its principle 17 to uplift the judicial process, redress injustices and provide access to justice for all under the due process of law. The Declaration recognizes the impartiality and independence of the judicial mechanism as a guarantor of the rule of law. The rule of law necessitates a separation of powers, an independent, just and impartial legal system and fundamental rights as the property of an ideal and liberal Constitution to strengthen democracy.
Democracy in the Western world is a liberal democracy, contrary to the biased and ignored democracies of the third world and developing countries. Pakistan is a democratic society, however, it is wrapped in an undemocratic state. After 7 decades of independence and following three Constitutions (1956, 1962 and 1973) it still leaves a lot to be desired in becoming a democratic state. Pakistan identifies the principle of judicial independence, but has unfortunately fallen prey to unconstitutionalism and dictatorships in the past.
Since 1947, Pakistan has experienced several changes in government, alternating between civilian and military rule. Such alterations have shackled our judicial structure and curtailed the independence of judiciary – which is a prerequisite for the survival of democracy – resulting in an evasive rule of law. Even though the courts have proclaimed themselves as guardians of the Constitution and guarantors of the fundamental rights of people, the judiciary in upholding the rule of law has indeed struggled to do its best as an independent institution [PLD 2003 S.C. 74]. Incidentally, the judicial system has also acted partially to facilitate political leaders, depending on the prevalent political, economic and social circumstances in the country.

Corporate Abuse: Transnational Corporations And Violation Of Human Rights.

On 11th September, 2012, a fire broke out at the Ali Enterprises textile factory located in Pakistan. As a result of the fire, about 262 workers died and many were injured. The reason for the large number of casualties had to do with inadequate safety measures at the factory premises which had led to the spread of fire within minutes, resulting in one of the most catastrophic tragedies in the textile industry worldwide.
Ali Enterprises had been producing most of the products for the German retailer KiK headquartered at Bönen, Germany. This shows that the responsibility to maintain adequate health and safety standards at the factory fell upon KiK. However, KiK was found to have never conducted any thorough and authentic due diligence review of the working conditions and safety measures at Ali Enterprises or any of its supply chains in Pakistan. On the other hand, the Italian social auditors of the factory RINA produced fake safety compliance certificates just a few weeks before the fire had taken place.
Survivors of this inferno and relatives of the deceased are still demanding justice for the loss of their families’ incomes. While the court in Germany has dismissed the legal action against KiK for being time-barred, the suit against RINA till date has also not achieved any positive legal outcome.

Causes Of Delay In Disposal Of Civil Suits And Solutions To Address Them

Causes of Delay in Disposal of Civil Suits and Solutions to Address Them
In comparison to banking suits, a civil suit takes more time to dispose of. There can be various reasons for the delayed disposal, such as unnecessary adjournments, defendants avoiding to receive summons and witnesses avoiding to record their evidence. But I believe that the primary reasons have to do with ambiguity in Order VIII, Rule 1, Code of Civil Procedure (CPC) and the flawed nature of service of summons to the defendant.
In a banking suit, the law namely Financial Institutions (Recovery of Finances) Ordinance 2001 is strictly complied with. In particular, section 9 and section 10 of the Ordinance provide a mechanism of service to the defendant. In a banking suit, a summons is served through the bailiff, by way of registered post, courier and publication in newspapers. All this is done simultaneously. The Ordinance provides that after the publication of summons in the newspapers, a defendant is to file leave to defend the suit within a period of thirty days. The service is held to have been validly effected after adopting these modes and the defendant cannot then claim that he or she has not been served. The time to file leave to defend is not usually extended, however, exceptions exist where there are valid reasons for the defendant to seek extension of time. A banking suit is summarily decided in case leave to defend the suit is declined, whereas in a civil suit, Order VIII, Rule 1, CPC provides that the time to file a written statement shall not ordinarily exceed thirty days (this was initially ninety days but an amendment in CPC decreased the time of filing the written statement).

Will Pakistani Lawyers Become Extinct In The Age Of Automation?

Will Pakistani Lawyers Become Extinct in the Age of Automation?
“With a new day comes new strength and new thoughts.”
Eleanor Roosevelt said this a long time ago, tempting me all these decades later to talk about it. These strengths and thoughts which have shaped the past and polished it further into the times we are witnessing today have led us into an era where we have become more dependent than ever on technology. The human mind, despite all its achievements, has still not come to a point where it says ‘this is it’. One of the reasons for this has also been explained in a study conducted by Ellen Galinsky where he asks children, “If you were granted one wish and you only have one wish that could change the way your mothers or fathers work affects your life, what would that wish be?” The most popular answer? They wished their parents were “less stressed and less tired”.

Rule of Law: Pakistan’s Get-Out-of-Jail-Free Card.

A few weeks ago, a writ petition falling under the purview of Protection Against Harassment of Women at the Workplace Act 2010 was presented before the Islamabad High Court. The presiding judge asked only one question: “Was the harassment of a sexual nature?” When the counsel replied ‘no’, the judge declared, “Then it wasn’t harassment,” and set the file aside.
The judge was within his powers to do so, as Section 2(h) of the 2010 Act loosely defines harassment under sexual acts. This is the law – the law that slaps a limited and coarse definition of a struggle many women face every day and the law that disables these very women from receiving justice. On the other hand, this is also a law which, in stark contrast to other common law states, defines harassment to be more than just a sexual act.
This begs the question of how far the rule of law can be applied in Pakistan. How can we as citizens of Pakistan chant slogans for demanding the law to prevail above all else when it is our own law that does not hold up its end of the bargain? How can equity and equality exist in a state which allows a large proportion of criminal acts to be swept under the rug due to inadequacies in the foundation of the legal system?
We can find laws in Pakistan coming out of every nook and cranny, but what good are sections or articles if they are vague, ill-defined euphemisms for miscarriages of justice? Legislation in Pakistan is drowning in abnormalities that give rise to loopholes which can be used to manipulate the law. While it is the responsibility of lawyers to construe the law to their advantage, it is also the responsibility of the legal system to ensure that no one is allowed to construe any legislation in a manner that forces the innocent to suffer.

The Case That Shook India: Indira Gandhi Vs Raj Narain.

The Case That Shook India: Indira Gandhi vs Raj Narain
There is no denying the fact that Indian courts have contributed more towards the development of law, doctrines and jurisprudence as compared to Pakistani courts in the past seven decades. The same is evident from the fact that most of the law books recommended by and for practitioners or law students in Pakistan are authored by Indians as well.
It is unfortunate that Pakistan’s apex court, uptil the 90s, delivered some of the worst and most criticized decisions in the country, such as in the Molvi Tamizuddin Khan case, the Dosso case, the Bhutto case, and the Usif Patel case, wherein the regrettable doctrine of necessity had also been introduced irrationally. However, it is also important to point out that our judiciary has mostly remained influenced or suppressed either by the legislators or the junta to be able to make more valuable contributions to the development of jurisprudence.
Let us have a look at a landmark judgment of the Indian constitutional courts delivered in Indira Gandhi v. Raj Narain reported as AIR 1975 SC 2299. The case was undoubtedly a watershed moment in the constitutional, legal and political history of India.
Brief Facts
Mrs. Gandhi was a candidate in the general elections from Rae Bareli, a city in the Indian state of Uttar Pradesh, and Raj Narain was the main opposition candidate she had been running against. In the election held on the 7th of March, 1972, Mrs. Gandhi won by a huge margin. Raj Narain, aggrieved of the election result, filed an election petition on the 24th of April, 1972, before the Allahabad High Court against Mrs. Gandhi, who had by then been elected as the Prime Minister of India.

Launch Of Pakistan Capital Punishment Study By FFR And Reprieve.

Highlights From Launch of Pakistan Capital Punishment Study by FFR and Reprieve
Between 2010 and 2018, Pakistan’s Supreme Court overturned 78% of death penalty cases, a newly released report has revealed.
The Pakistan Capital Punishment Study, a two-year long study and analysis of the capital jurisprudence of Supreme Court of Pakistan, reveals the following:
  • Of the 310 reported capital punishment judgments between 2010 and 2018, the apex court overturned death sentences in 78% of the cases, by either acquitting, commuting the sentence, or ordering a review.
  • In 2018, the last year on record, the Supreme Court upheld the death penalty in only 3% of its reported capital punishment cases.
  • Pakistan has executed more than 500 people since 2014 (when a death penalty moratorium was lifted), with an average of two hangings per week.
  • In 28% of the cases, the Supreme Court eventually overruled a death sentence. Among these 28%, one person had been sentenced to death at trial while the co-accuser had been acquitted at trial, based on the same set of evidence for both.
  • 4688 people are currently on death row in Pakistan, making it one of the largest death rows in the world.
  • Since 2014, at least 13 prisoners have been executed after being on death row for over 20 years (the length of a life sentence).

What is Wrong With the NAB Ordinance?

The National Accountability Bureau (NAB), an anti-corruption body formed to probe into matters pertaining to corruption of public office holders, has been under the public radar in contemporary political discourse. The spirit of its conception may be commendable, but the same being marred by an instinct of political vendetta puts into doubt the entire structure upon which the institution of NAB stands today. As a result, political opportunism is reflected in the sweeping legal apertures of the NAB Ordinance.
The first issue in the NAB Ordinance stems from its “intent of formation”. The institute was made under the military government of General Pervez Musharraf via an Ordinance promulgated in 1999 which served the purpose of self validation and victimization more than holding corrupt officers accountable. Hence, the ambit of the definition of public office under Section 5(m) of the NAB Ordinance does not cover serving armed forces officers. Although the Constitution does carve its language to keep military matters away from the public discourse to protect national security, the Constitution’s intent has never been to create a “supposition of purification” for any institute. This is contradictory to Article 25(1) of the Constitution of Pakistan which explicitly states that, “All citizens are equal before law and are entitled to the equal protection of law.” However, using the protection of discipline in the armed forces as a cover, the Ordinance makes an unnatural causal link of the protection of monetary corruption under the cover of national security. This connection severely violates the principles of natural justice and the basic doctrines of the Pakistani Constitution.

Legal Status of Private Military and Security Companies in Afghanistan.

An international complication which has been recognized in the new manifestations and modalities related to emerging trends in mercenary activities is the status of international private security guards in war zones. Former military and police officers from all parts of the world get conscripted and made responsible for providing “passive or static security” in areas such as Afghanistan, Iraq and other regions post-conflict, in the form of private military and security companies (PMSCs).
PMSCs are believed to fill the void created in three types of unstable circumstances:
  • In areas with pre-conflict situations where armies are not completely deployed, or in post-conflict circumstances with an increasing level of uncertainty;
  • In armed conflicts where organizations at the international level do not interfere; and
  • In troublesome areas in countries which are developing, and where there is no administration of the state, and where extractive international companies operate.