Revenue Terms In Urdu

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Judicial Activism in Pakistan

Judicial Activism in Pakistan

Introduction:

The advent of parliamentary democracy in 1985 marks a water-shed in Pakistan’s political development. The renewal and strengthening of the political process has also brought to the fore the concomitant advantages associated with such a process. Pakistan’s print media is growing in the exuberance of total freedom, a luxury it has never enjoyed in Pakistan’s history. A participatory and democratic polity has integrated all foci of separatism in Pakistan. For the first time, there is no active secessionist movement in any of Pakistan’s provinces. Pakistani federalism is at its strongest; regional leaders hitherto hankering for separation are now very much a part of the political process, holding important offices in the center as well as the units.

The most significant blessing of the strengthening of the democratic process has been the assertive stance being exhibited by Pakistan’s superior judiciary. Judicial activism has never been a feature of Pakistan’s polity. Instead, our judicial history is replete with landmark 

Our higher judiciary has condoned, at various times, the dissolution of the first Constituent Assembly and the proclamation of martial laws in 1958, 1969 and 1977. It would be short-sighted to put all the blame for the above on the judiciary alone. A free and assertive judiciary does not grow in vacuum. It needs a free and democratic dispensation to nurture it. Thus, the much talked about judicial activism is a result of Pakistan’s return to constitutional government.

What is judicial Activism?

Before we dwell on the causes and features of judicial activism, let us first understand what it is. A modern democratic state is built on the principle of trichotomy of powers, i.e. the judiciary, executive and legislature have to perform their won designed functions.

However, it has been observed that even in developed polities, the functioning of the legislature and executive leave a lot to be desired. Instead of being vigilant and acting as a check on executive persecution, the legislature becomes its hand-maiden. In addition, it is slack in enacting laws.

To fill the vacuum resulting from this legislative-executive mal-functioning, the judiciary has to assert itself by providing relief to the sufferers of tyranny and by interpreting laws, which are either deficient or vague.

Origins:

Historically, the architect of Judicial Activism was Chief Justice John Marshall of the United States. In two landmark cases, Marbury vs Madison and Mccullough vs Maryland, he laid the foundation of the doctrine of Judicial Review i.e. the judiciary should have the power to determine whether a law enacted by the legislative or an act done by the executive was constitutional or not. In the 1930’s, Roosevelt’s attempts to pack the supreme court with his favorites back fired.

Judicial Activism in Pakistan:

As already identified, Pakistan’s judicial history is replete with cases like overturning of Maulvi Tamizuddin’s appeal, Dosso’s case and the Nusrat Bhutto case, where the judiciary bowed to the executive’s pressure. However, things changed after 1985.

In the Saifullah case in 1988, in spite of the executive’s strong pressure, it was made mandatory that elections would be held on party basis. Later, the LHC and the SC both declared that the Junejo government was dissolved unconstitutionally. By a very active interpretation of Article 17 of the Constitution, the Nawaz Sharif government was restored in 1993. Had the SC interpreted the article textually, the case should have been heard by a High Court at first instance.

However, it was in 1996 that two landmark cases changed Pakistan’s political landscape decisively. First, the Supreme Court, by repeated instructions to the effect, forced the government to promulgate the Legal Reforms Ordinance, 1996, which separated the judiciary from the executive at the lower level. This ordinance rectified an anomaly and aberration in our democracy, which had been tacitly supported by ever government in order to enjoy political clout.

Then in the path breaking “Judges case” of March 29, 1996, the SC declared that the Chief Justice of Pakistan would have primacy in the appointment of judges to the superior judiciary. The “consultation” with him by the executive, regarding the appointment of judges, would have to be “purposive, meaningful and consensual.” This case has effectively put an end to the executive practice of appointment of judges to the higher judiciary by over-riding the advice of the Chief Justice of Pakistan.

Justice Sajjad Ali Shah thus brought about a “one man judicial revolution” in the country. A novel committee, the Chief Justices Committee was formed, which routinely castigated executive excesses publicly.

After being rushed through Parliament, the 14th Constitutional Amendment was hailed as the remedy against the scourge of floor-crossing, which had de-stabilized the democratic political system in the post-Zia ul Haq era. To this extent, of course, it was a much needed step. However, it was widely criticized for going far beyond the anti-defection intent and eroding the very basis of democracy by stifling dissent and meaningful debate and, thus, violating the freedom of speech guaranteed in the Constitution. Furthermore, by vesting party leaders with sweeping powers to unseat legislators and denying judicial redress to the latter, it was seen as having imposed party dictatorships and political regimentation.

All these issues went before the Supreme Court and its 6-1 verdict has only partially validated the controversial Amendment. The six judges in favor have struck down the portions curbing the legislators’ right to express dissent inside and outside Parliament. However, almost certainly with an eye to the bitter realities of our political culture, they were unswayed by the conscience-voting argument and maintained the compulsion for legislators to vote according to party dictates so as to “bring stability to the polity” by eliminating floor-crossing.

Even in allowing this right of verbal dissent, there was a 4-2 split among the honorable judges. Justices Saiduzzaman Siddiqi and Irshad Hassan held that even dissent outside the legislature was ultimately damaging to party discipline inside the House and, thus, for political stability generally. The believed that principled dissent required the legislator to resign the seat won under a party flag. Hence, they favored upholding the 14th Amendment in its entirety.

However, the six judges were unanimous in diluting the vast powers given to party bosses by upholding the right of an unseated legislator to seek remedy from the High Court and the Supreme Court.

In another landmark judgement, the Supreme Court has declared as invalid several provisions of the controversial Anti Terrorism Act (ATA), and asked the government to amend the law accordingly. Headed by Chief Justice Ajmal Mian, a five-member bench of the apex court heard the case, and upheld the view taken by the Lahore High Court in an earlier judgement. Among the specific sections of the Act pronounced as ‘violation of the Constitution’ and recommended for suitable amendment are provisions relating to arbitrary powers given in the law-enforcing agencies to search, open fire and record confessional statements. But, above all the apex court has ordained the jurisdiction of the High Courts over the special courts established under the ATA, abolishing the ‘appellate tribunals’ which were hitherto empowered to hear appeals against convictions by the special courts.

The striking down of the anti-terrorism law, which critics had from day one judged as a hasty and ill-conceived piece of legislation, is a welcome judicial intervention. The Supreme Court, being the watchdog of the constitution, has done what is expected of it. Needless to say, without a system of checks and balances, even the cherished ideal of the supremacy of parliament can end up in the tyranny of the majority. Moreover the casual approach of our elected representatives in the crucial task of law-making is matched only by the pre-occupation of the executive with arrogating to itself the sole authority to run the system. Notwithstanding pious intentions, the government’s prescription to combat terrorism was widely seen as an attempt to circumvent the due process of law, rather than streamlining the system to cope with the imperative of speedy justice.

The Supreme Court judgement has once and for all rejected the concept of summary trials, and dealt a blow to the executive-sponsored moves to create a parallel judicial system. Thankfully, the apex court has held in check the pronounced tendency for arbitrary functioning. It has reaffirmed the independence of judiciary, and thus safeguarded fundamental rights and civil liberties. Hopefully, this message has been forcefully brought home to the government. There should now be no “ifs and buts” in its response to the Supreme Court’s verdict to recast the Anti-Terrorist Act.

Activism In Aid Of The Oppressed:

Perhaps the brightest side of Pakistan’s tryst with judicial activism is the increased relief being provided to common citizens in the shape of Public Interest Litigation and suo moto notices. Justice Nasir Aslam Zahid provided relief to thousands of illegally incarcerated youth during 1993-1996. He also stood up against the building mafia. He provided sue moto relief in the famous Feroza Begum case when he ordered the release of a tortured MQM worker, whose mother was being forced to change her party loyalties.

The Bright Side:

Judicial activism is the last refuge against an arbitrary and irresponsible government A vigilant judiciary upholds the constitution, confining the legislative and executive to their constitutional spheres. It acts as a check against the privileged power abusers of the society i.e. the building, crime and drug mafias, corrupt parliamentarians and the influential ‘law molders.’A benevolent judiciary alleviates the agony of the underprivileged by providing suo moto relief.

The Dark Side:

However, if judicial activism is hijacked by individuals for personal aggrandizement and not for the common man, then it can bring to a standstill the whole government machinery. This was witnessed recently. Because of the whims and caprices of one man, the judiciary, instead of asserting itself for upholding the constitution, became the center stage of confrontation. Contempt cases and political dueling became the order of the day. Mercifully, the crises was resolved amicably.

However, it was instructive. Judicial activism was well received and admired when it was exercised in public interest. However, when activism was turn into a personal vendetta even after the five judges had been appointed to the Supreme Court, public opinion decidedly tilted against the Chief Justice.

Conclusion:

It is heartening that judicial activism has come to stay in Pakistan. However, we still need to remove constitutional lacunae that impinge on the freedom of the judiciary.

Conscientious judges can be dumped in the Federal Shariat Court. Benches of “troublesome” High Court judges can be changed by executive fiat. All these provision need to be removed from the constitution. Also, we need to expand the judiciary to dispose off the backlog of pending cases.

One must be grateful of the fact that strong democratic traditions are taking roots in our political system. A strong judiciary increases the faith of the common man in the system. It also leads to political stability and constitutional harmony.

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INDEPENDENCE OF JUDICIARY THE FINAL FRONTIER

INDEPENDENCE OF JUDICIARY THE FINAL FRONTIER

 divorced from the Judge's own personality. I understand that in some parts of the civilized world despite a great fanfare about independence of judiciary Judges are selected and appointed to the hierarchy of courts including the apex court with particular reference to their known conservative or liberal approach towards the national or moral issues. With great respect I consider such a practice to be nugatory to impartiality of judiciary and I can only sympathise with the litigant taking his case to such a Judge when he knows in advance that the Judge openly holds and is expected to express a view other than that which the litigant is about to canvass before him. A Judge, howsoever independent he may otherwise be, is not independent enough if his impartiality is clouded by his personal views and perceptions. This is what I mean when I include independence from yourself as a part of the final frontier.

 

The second aspect of the final frontier that I want to talk about is independence of an individual Judge from the undue pressures of his peers and from some unnecessary or unwarranted controls of his institution. There is no doubt that in his capacity as a Judge a person performing judicial functions is necessarily a part of his institution, i.e. the judiciary and ordinarily his functioning is to be in line with the over all policy and scheme of the institution. However, the problem comes when the institution's independence is itself under cloud because of extraneous factors and an individual Judge starts abdicating his decision making before the dictates of the institution or conversely when the institution starts excluding an individual Judge from decision making in sensitive matters because that Judge is not likely to tow the line of the institution. Both such factors, which may be unthinkable in the civilized world but may unfortunately be real possibilities in some other parts of the world, completely undermine the notions of independence of judiciary. Apart from that concentration of powers in the hands of the head of a judicial institution regarding constitution of Benches, allocation and distribution of cases amongst Benches, attaching of priority to different kinds of cases and geographic transfer of Judges is an issue which has raised eyebrows in the past and can also resurface in the future. A possible misuse of such powers by the head of a judicial institution can effectively render the independence of an individual Judge to be of no practical utility or benefit to the citizens at large. /Such a threat to independence of judiciary has its origins within the judiciary itself and any degree of independence of judiciary painstakingly achieved through all the other stages mentioned above can effectively be neutralized through some machinations from within the judiciary itself. In this context I feel that independence from judiciary in the above mentioned areas may be a sine qua non for reaching the final frontier of independence of judiciary.

Sir Francis Bacon, the British Lord Chancellor of his time, started his essay Of Truth with the following words: "What is truth said the jesting Pilate and did not wait for an answer." The same can be said about justice as well. Justice is an abstract notion and true justice can be done only if totality of the facts are known. According to the Holy Qur'an when Khizar (PBUH) killed a minor boy for no ostensible reason Moses (PBUH) found that to be unjust and he protested against such an unjust murder but subsequently Moses (PBUH) was satisfied when Khizar (PBUH) explained the will and wisdom of Almighty Allah in that regard on the basis of facts which were not known to human beings till then. Thus, even a Prophet of Almighty Allah apparently faltered in the matter of justice on account of lack of knowledge of the totality' of facts. Unfortunately all that we fallible and mortal Judges in this world have before us is a few papers containing half-truths and some self-serving statements of the parties and their partisan witnesses. Almighty Allah, the Maker of us all, knows our limitations and that is why at many places in the Holy Qur'an we have been ordained to decide according to the onus, quantum and standard of proof prescribed for various offences. In some cases where an allegation is levelled in the absence of the prescribed quantum and standard of proof the person levelling the allegation is required to be punished even if his allegation may in fact be true. The essence of this is that the emphasis is not upon making sure that the culprit does not go unpunished but the focus is on punishing him only if he is proved guilty in accordance with the legal requirements. It is, thus, evident that we have been ordained to administer justice only in accordance with the law and not in accordance with our own subjective appreciation or understanding of what might have happened and on the basis of our own subjective sense of justice. Even the Star Chambers and the Court of Equity in England had to be wound up because it was soon felt that equity had started varying with the size of the Chancellor's foot and justice being administered was becoming more and more whimsical and subjective. It is in the background of such accumulated wisdom that the oath of office of a Judge in our country requires him to dispense justice only in accordance with the law. Let me explain this issue through an example. We all know what a fake police encounter is. A fake police encounter is where a notorious criminal, a menace to the society, is apprehended by the police and knowing that no sufficient evidence is available against him to prove his misdeeds before a court of law the police officer decides to rid the society of that menace and kills that person by fabricating and faking a police encounter. The motives of such a police officer appear to be just to him and he feels convinced that by ridding the society of that menace he is doing a service to the society but the law considers such a killing to be nothing but a cold-blooded murder. Please allow me to say that if a Judge passes a sentence of death against a notorious person or upholds such a sentence only on the basis of his own subjective sense of justice in the name of good of the society with scant regard for the law or the standard of proof then I see no difference between the above mentioned police officer and the Judge. A fake judicial encounter is as bad and condemnable as a fake police encounter. I strongly believe that jurisdiction conferred by law can in no circumstances be exceeded by a Judge in the name of justice because such an approach completely negates the concept of rule of law. How can a Judge violating the law in the name of justice be treated more charitably than any other criminal who violates the law deliberately? Let me broach this subject from another angle. A Judge is like an umpire in a game of cricket. hi a tense and emotionally charged cricket match being played between India and Pakistan at Lahore Sachin Tendulkar hits the ball for a six and the ball is caught by a Pakistani fielder outside the boundary rope and the entire Pakistani team rises to its feet with an appeal to the Pakistani umpire with a question `How is that?'. According to the rules of the game Sachin is not out and the Pakistani umpire cannot say that although according to the rules of the game the batsman is not out but I would give him out because it is in the interest of my country. Such a decision of the umpire based upon a perverted and subjective sense of justice would surely be the last decision in that gentleman's umpiring career. Like an umpire in a game of cricket a Judge's function in the justice system is to decide only and only in accordance with the law and not according to his own subjective sense of justice or fairness. It is the law which is to take care of justice and a Judge should never try to be wiser than the law. People come to a court of law after exhausting the other avenues of justice. They want to get the legal position declared by the court and the court should not shy away from it. In a misdirected and abstract pursuit of justice the law is not to be relegated to the status of or condemned as mere technicalities. Such an attitude amounts to destroying the very basis and the very fabric of the entire legal and judicial system. The very purpose of having such so-called technicalities, i.e. the law is to establish an order in the society through known and codified standards. A Judge ignoring the said code or the standards may be trying to do justice to one party according to his own subjective standards which may not necessarily be correct and sure but by doing that he is throwing the entire society into chaos by violating the agreed and settled code and standards. It must never be lost sight of by a Judge that he has no mandate from the society to be an apostle, a cavalier, a reformer or a missionary and the only mandate given to him by the society is to administer justice according to the law of the land. A judge must understand that the warrant of his appointment is not a proclamation of his coronation as a king who is above the law. Even for a king it now stands settled that "howsoever high you may be the law is above you". It is but obvious that a Judge, on account of the nature of his job, is more bound to obey and follow the law than any other citizen. A Judge trying to do justice by ignoring or disregarding the law does so at the peril of shaking the very foundation of the judicial system itself as such an approach destroys certainty and predictability of judicial response. This in turn gradually cuts across and erodes public confidence in the judiciary which is so important for maintaining and safeguarding its independence. The final frontier for independence of judiciary, therefore, is that the Judges should shake off every other consideration from their minds and should decide the matters placed before them in accordance with the law and nothing but the law. This I believe is what would be the ultimate cutting edge in our quest for independence of judiciary.

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JUSTICE DELAYED IS JUSTICE DENIED

WHETHER JUSTICE DELAYED IS JUSTICE DENIED

By

Syed Muhammad Kaleem Ahmad Khurshid,

President, Lahore High Court Bar Association

One must learn from the past and refrain from repeating the mistakes. There is a general tendency that the judiciary as well as the lawyers are being criticised and said to be responsible for the delay in the process of justice. The developed societies and overcrowded countries have highly complexed laws, thus, causing delay in the disposal of the cases even then this aspect of the matter has never been held to be the main hurdle in the process of justice. Even in civilized societies the Court system is provided by the States to its citizens for resolving their disputes and in our society the dispute resolving apparatus which the State provides and which we as lawyers serve produces the result which is just proper and if we take the view that justice delayed is justice denied then this view will affect the society and may cause hardships without appreciation of the real matter.

2. In my opinion the time that passes between the arising of claim and disposal of it by a final judgment, can be divided into following periods, namely the arising of the claim, commencement of the proceedings of Court, service of opposite‑party, the trial period, the period between the trial and judgment and disposal of the final appeal. Improper delay may occur in this process as such the reasons for the delay in such circumstances and the remedies for it are different at different stages and the main problem is that delay in not synonymous with the passage of time rather improper delay affects the society and such improper delay amounts to the denial of justice.

3. Lawyers generally take time to process claim and for the drafting of the petitions, suits and complaints, notice to the opposite‑party. Courts allow time for needs which are incidental to the main proceedings, issues are formulated in order to avoid surprises, evidence is collected and complexity of the matter may determine the quantum of evidence and these are sufficient reasons in taking considerable time, as such the time consumed in processing the claim cannot be said to be improper delay. It is the duty of the lawyers to see that the disputes are resolved quickly and this vital service to the society by the lawyers is their paramount consideration.

4. The recent publicity in respect of undue delay in the process of justice is highlighted by the executive but it reflects a long standing failure by the lawyers to inform the public of its judicial purpose, skill and services provided by the legal profession to, the litigants for resolving their disputes.

5. Unless and until the delay is not appreciated in its true perspective we cannot say that the justice delayed is justice denied. Generally delay is caused by the Courts due to overwork because the cases are fixed before the benches after many years in such circumstances the executive is responsible for such delay but the delay which is incidental to the proceedings, in order to enable the parties to settle the issue to collect the evidence, cannot amount to improper delay and the time consumed in such matters will not amount to "justice delayed is justice denied". The lawyers are not responsible for improper delay in the process of justice. The working of the Courts, case load, the complexity of the litigation and quantum of evidence is the relevant material for the speedy justice and the decision of cases cannot be equated with treatment of a patient. Thus, without providing full opportunity for the production of evidence to the opposite‑party, the decision of suit in hurry and haphazard manner will amount to denial of justice and the real purposes of administration of justice may be flouted by speedy disposal which amounts to "justice hurried is justice buried". Reliance is placed on PLD'1996 Lah. 210 where concept of hearing has been highlighted.

6. The improper delay can be avoided by simplifying the present procedural laws and legislation can be said to be responsible for improper delay because there are different types of Courts, different types of legislation for different subjects thus resulting in delaying the justice. It will not be out of place to mention here that certain suggestions are given by the Courts to simplify the procedure but the same are not incorporated by the Legislature, thus, causing hardships for the litigants. At this juncture I will refer to PLD 1973 Supreme Court page 619 wherein it was observed by the Supreme Court of Pakistan that the definition of cheating under section 415 requires amendment but the said definition of "cheating." was amended in 1980. There are many other examples in this behalf and the same was amended in such circumstances it can easily be said that when the cases are being decided on hypertechnical issues by the Courts then this may amount to "justice delayed is justice denied". The lawyers are not responsible for such inordinate delay and the legislation and executive can be held responsible for inordinate delay. It is the duty of an Advocate and he is under obligation to assist the Courts in the litigation entrusted to him. The lawyers always took interest that the matter should be settled without undue delay but some instances of delay do not amount to improper delay in such extreme cases. Deliberate delay in the process of litigation may amount to the abuse of the process of the Court but this undue delay can be avoided when the time limit should be fixed within which case of a particular kind may be dealt with and disposed of and the superior Courts should seek explanation from the lower Courts for such delay. The Court must adopt administrative structure and machinery to ensure that litigation is concluded within the stipulated period. The Courts must adopt a structure appropriate to the speedy disposal of the litigation so that the delay should not amount to the denial of justice. In order to achieve this object the number of claims can be fixed being dealt with by an advocate by the Bar Council. Overcrowded professional engagements of an advocate may be one cause of delay in the process of justice. The number of Courts should be increased so that the overworking of the Courts should not be responsible for delay which amounts to denial of justice. Lastly, statutes and the rules made thereunder should be simplified by the legislation and complexity of the statutes is the main reason for process of delay.

7. In order to get rid of this situation that justice delayed is justice denied some proposals are given below:‑‑

(i) Before the framing of issues, the counsel for the parties should be required to submit a summary of the early neutral evaluation and there should be a specific provision for referring the matter to the arbitrator and if this offer is accepted and parties have referred the matter to the arbitrators the parties may be exempted from the payment of court‑fee. This process is more conciliatory, less‑formal and more flexible. The pre‑trial proceedings can be introduced in the civil suits.

(ii) That if the parties are not at variance on facts, question of law should be formulated and reference can be sent to the High Court under section 113, C.P.C. The aforesaid section 113, C.P.C. may be amended and reference may be laid at rest within one month.

(iii) The provision in respect of interrogatories and admission of documents, admissions of facts, discovery, inspection; production, impounding and returning of documents shall be laid at rest before the formulation of issues in order to avoid delays.

(iv) The Constitutional Courts can avoid undue remands if there is uniformity of judgments, thus, delays can be avoided.

(v) Delays can also be avoided when substituted service is adopted simultaneously.

(vi) Written arguments should be asked to be produced and still the party insists to make oral submissions specified time should be allocated for oral arguments in the interim order.

(vii) Parallel judicial system by the Government are creating hurdles in the administration of justice and the time tested present judicial system is fully appreciated by the people and approved by them. The said system also enjoys the confidence of the people, thus, parallel judicial system should be abolished.

(viii)Exemplary costs should be imposed in order to avoid frivolous litigation.

(ix) The number of Forensic Science Laboratories should be increased and serious action should be taken against the persons responsible for undue delays.

(x) Time should be fixed for hearing of the case and frequent adjournments should be avoided.

(xi) Supervisory jurisdiction may be exercised tinder Article 203 of the Constitution of Islamic Republic of Pakistan if the ruling of the Constitutional Courts are not followed by the subordinate Courts then disciplinary actions should be taken and rules should also be framed in this respect.

(xii) Ineffective Supreme Judicial Council is also a hurdle in the administration of justice.

(xiii) The time limit should be fixed within which cases of a particular kind may be dealt with and disposed of by the lower Courts and the superior Courts should seek explanation from the lower Courts for such delay and disciplinary action may be taken against the Courts responsible for such delay.

(xiv) The High Court must adopt a structure appropriate to the speedy disposal of the litigation and the liability of the delay must be fixed.

(xv) The number 'of claims should be fixed by the Bar Councils. Overcrowded professional engagements of a professional are also a cause for the delay in the process of justice.

(xvi) The number of Courts should be increased and necessary funds should be provided by the executive for the disposal of matters within a reasonable time.

(xvii) The complexed procedural laws should be simplified by the legislation and the suggestions by the superior Courts should become part of legislation and if the same are not incorporated in the statutes within six months due to oversight of the Legislature the public should not think that justice delayed amounts to denial of justice.

(xviii) That it is a duty of the Appellate Court to resolve that the decision by the Court or Tribunal is incorrect, mala fide, or based on incorrect assumption of facts and the Appellate Court should be authorised to pass an order to direct the lower Court to pay the costs to the aggrieved persons.

(xix) That unapproved reporting in the Law Journals is also a cause of delay in the process of justice and it creates hardships for the public. Thus, unapproved reporting in the Law Journals is another cause of the delay, thus, undue delay occurring due to the reckless reporting can be avoided.

(xx) The rule‑making‑powers are not being exercised by the High Court otherwise the confusion can be resolved by exercising these powers and interpretation of the rules may result in the speedy disposal of cases.

(xxi) The Bar Councils should be authorised to propose amendments in the Procedural Laws and if the proposed amendments are not incorporated in the statutes by Legislature within six months then the same may be presumed to be the part of rules. Thus, undue hardship to the litigants can also be avoided and nobody can say that justice delayed is justice denied.

(xxii) That evidence in civil case should be recorded through local commission in order to avoid delays in recording of evidence.

(xxiii) Article 163 of the Qanun‑e‑Shahadat may please be amended to this effect that if the plaintiff states on oath that his claim is true and the defendant refuses to make a statement on oath then the suit should be decreed. On the contrary, if the defendant makes a statement on oath and the plaintiff fails to rebut the same on oath the suit shall be dismissed.

(xxiv) That if the denial in the written statement or evidence in this respect is false then the person should be prosecuted for perjury.

In my humble opinion the time consumed for processing the claim and recording of evidence will not amount to improper delay and the same will not amount to "justice delayed is justice denied" rather if the justice is hurried that will amount, to injustice and will cause hardship and it can be said that if the justice is, rushed then the justice is crushed.

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LEGAL AND JUDICIAL EDUCATION

                                             LEGAL AND JUDICIAL EDUCATION

By

Mr. Justice Mazhar Iqbal Sidhu,

Judge, Lahore High Court

It is a matter of honour to speak a few words on the topic of legal and judicial education. It is a matter of immense importance because since the creation, human beings, are disciplined and governed by the laws which may be natural, conventional or customary. It is rightly said that codified laws are the collective wisdom of the society based upon past experiences. Law is also said to be based upon rationality. Before the English Rule, the law was not codified and the people here and the society were disciplined under certain customs and conventions, in terms of personal matters; religious laws were also followed by the most tribes.

2. First of all, the late Sir Syed Ahmad Khan, the great leader of the Muslims felt that unless and until education is not imparted to the Muslim community in Sub-continent, it would be difficult for them to get liberation from the English Rulers, thus, an institution was set up known as Ali Garh Muslim College, later-on upgraded to Ali Garh Muslim University. In this institution, a faculty of law was also established and many of our top notables remained students in that faculty.

After the creation of Pakistan, educational conference was held in Karachi in 1947. Quaid-e-Azam Muhammad Ali Jinnah our great leader made emphasis on the importance of education and rule of law.

In 1868 Punjab University Law College was established by Anjuman-e-Punjab and then later-on it was known as Punjab University Law College. This is how systematically the education of Law commenced pre-partition.

After partition in the homeland formally, colleges, universities have been established in public as well as private.

3. Ladies and gentlemen, it is order of the day to enhance the standard of legal education and to make it compatible with advanced countries.

Therefore, following steps may be suggested:--

(i) The curriculums of legal education should be re-visited for making it more meaningful and objective.

(ii) The legal institutions must be governed and run under strict discipline.

(iii) The teachers should have maximum command over the subjects given to them for teaching.

(iv) The books on the subjects should be comprehensive and the libraries in the institutions should be of such standard that if the teachers or students require some extra curriculum knowledge, then they may not feel difficulties for the same.

(v) The teachers should be committed to their duties and the students should also be seen so dedicated, devoted, committed and concentrated to the knowledge that on the eve of completion of their qualifications by obtaining the degrees of Law, they may not feel difficulties in practicing it in their professions.

(vi) There must be a cross check over the institutions through surprise visits by the Higher Education Authorities so that everybody should remain under the constant watch and the Authorities should remain wakeful incessantly at least up to conclusion of a particular session of the students.

(vii) Teachers should be provided maximum facilities in order to make them devoted and more professional to the education and in this way their remunerations should be of high scales with logistic support.

(viii) The atmosphere of the legal institutions should be congenial, educative and should be of such a high standard that nobody should be permitted to disrupt the continuity of the education come-what may the circumstances including politics.

(ix) In the legal institutions there must be Research Centers, law moots, tutorial groups, and there must be competitive moots on the laws of the land as well as on foreign laws.

(x) In order to enhance the mental faculties of the lecturers, they should be provided opportunities by the institutions, Government/Ministry of Law to visit different countries in order to study the laws there and their implementation to see how the other countries improved their legal system in order to cope with the new situations arising in our country. We should continue to keep abreast with the advancement in law made by the advanced nations in the world.

(xi) The object of study should be of such nature that law should be inculcated in the minds of students and it is the need of time that we should leave cramming and it should be made to get rid from the minds of the students that they had to pass only the examinations and any slipshod method may be used for the same and after the completion of legal education, they had to study, afresh for its practice.

(xii) The legal education should be based upon scientific as well as modernism as that of Engineering and Medical so that every law scholar should feel honoured and proud that he has a valuable degree which can make him rich to enriched.

(xiii) There must be a complete prohibition on the use of guides, notes system, cheating and unfair means and also students should not be permitted to read helping books (not up to the mark) just to pass the examinations.

(xiv) The discipline in the legal institution should be so strict; particularly to be inured the students for studies and to earn at least 80% lecturers for their appearing in the examinations.

(xv) Mushrooms growth of the legal educational institutions in the private sector, particularly in remote areas may be deprecated.

(xvi) Dynamic education should enhance the legal faculties of the students to improve their morale and to build their personalities so that with education, character building of the students should also be developed.

(xvii) More stress may be laid upon modern methods in searching law on a given proposition.

(xviii) It is very essential for students to know that a remedy provided by a substantive law, where and how it is to be redressed. Thus, there is necessity to inculcate procedural laws in the minds of students. This can only be done by faculties of practicing lawyers as well as Hon'ble judges to make and develope a lawyering skill.

4. It has been seen that after a period of about 39 years only improvement made in the LL.B studies is that period of two years has been enhanced to three years and more so LL.B (Honours) classes by Punjab University Law College have also been introduced and it is important to note that now degree of LL.M. as well as PH.D is also awarded by the Law College of University of Punjab.

5. In order to promote the legal education, Pakistan Bar Council also has an effective role to play and in this respect Hon'ble Supreme Court of Pakistan has handed down a celebrated judgment reported in PLD 2007 SC 394 with the title of Pakistan Bar Council v. Federal Government and others. Guidance can be sought of it.

6. Teaching methods should be of scientific nature and be based upon semester systems so that the students and the teachers should remain comfortable.

It is well saying that "the law makes the sense"

Dear Sir,

So far as the judicial knowledge is concerned, it is in fact the continuity of the legal knowledge, rather both are complementary to each other. Uptill now, we have seen in our legal system that the bars are playing very vital roles in getting relieves for litigants. The learned members of the bars should remain so committed, dedicated and concentrated to their lis and the learned senior members of the Bars should be wakeful to the activities of the new comers in the profession and the new comers should remain faithful, dedicated and respectful to their seniors and to the profession.

Our judges should know the basic laws and it is well said by his Lordship Mr. Justice Shafi-ur-Rehman that law should be on the sleeves of the robe of a judge, of course, it can be accepted, provided there must be commitment by both the pillars of justice i.e. Bench and Bar. It also cannot be ignored that if better or best assistance is rendered to a judge ad barram, obviously, standard, appreciation, the quality of decision becomes marvelous and vice versa.

In this way, in the Bar Rooms certain measures/methods are required to be adopted by the Bar Councils particularly, and Bar Associations generally in order to keep the legal fraternity abreast with the latest legal knowledge.

8. Judges should be provided maximum facilities, particularly, no financial constraints should come across a judge. In absence of legal system, society may not run but can be run by coercion but the same cannot survive because application of law provides facilities to the people, to the society, to the institutions and the proper legal system, ultimately, brings prosperity and advancement.

9. To maintain the rule of law, responsibility basically lies upon the courts. It has been noticed that since years ago and uptil now that executive is bridleless horse but only the courts have made them go on right track.

10. In order to enhance the legal acumen of the judges, it requires that there must be legal discourses, seminars, refresher courses, workshops, judicial conferences of the judges to aware them about the changes/reforms in the existing laws so that while deciding cases they may apply the law by accuracy on the issue. In this connection, legal precedents should be given due weightage and consideration while promulgating new enactments. Law Departments of Federal or Provincial Government are to be activated in this respect.

10-A. The litigants are required to be educated to refrain from falsity. This will definitely foister the cause of justice. In wake of above, now it is high time to make effective and more deterrent, provisions relating to mendacity.

11. For an arbiter, the guidance issued by Hazrat Ali (A.S.), the 4th Caliph of Muslims to Malik Ashtar, the Governor, is the fundamental piece that decisions should not be made through anger, haste and both the parties should be given reasonable chances of being heard.

It has been considered appropriate to describe certain suggestions for betterment of judicial system:--

(i) The learned members of the Bars are required to ensure their appearance in their cases in the courts.

(ii) In order to control and eradicate the element of terrorism, the existing laws are required to be re-visited and suitable amendments must be made therein, particularly in Qanun-e-Shahadat Order, 1984, Code of Criminal Procedure, 1898, and in the Police Laws.

(iii) The Prosecution Branch should be made more effective and efficient in implementing the provisions of the Prosecution Act, 2006.

(iv) For the protection of witnesses and to keep their morale high, a close and safe security may be provided to them.

(v) The Bar Councils as well as Bar Associations should elect most professionals as their representatives so that the grooming of the new corners would commence automatically and they may become professionals.

(vi) For the purposes of investigation, modern devices should be practised to trace the wrong doers, to the justice, especially, in the white collar crimes, cyber crimes and the Electronic Crimes.

(vii) Investigating officers should be provided maximum knowledge/ training to investigate the cases based upon modern devices and should practice minimum conventional method. More so, the investigating officers should remain more dynamic and up-to-date with the law about the matters under investigation.

(viii) Technical Laboratories may be set up at Divisional Level and the existing laboratories may be upgraded by all latest instruments and the experts for their jobs.

(ix) For fair, free and impartial investigations, all types of influences should be taken as major sin. Multiple investigations should be curbed. The investigating officers should be made responsible for the success of case in court of law and if on the basis of investigational failure, a case does not succeed, then the investigating officer may be penalized on the recommendation of the learned trial court.

At the end, ladies and gentlemen I am thankful to all of you. At the conclusion, I pray to the Almighty Allah that he may guide us to remain on right path.

Aamin.

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