Perplexities of Law

A law is valuable, not because it is a law, but because there is right in it.

(Henry Ward Beecher)

For centuries there has been a debate between natural lawyers and legal positivists regarding what law is, and what law ought to be and this “is/ought” discussion has raised many questions not only in mind of legal jurists but also in the minds of public at large.

To view law from the perspective of Pakistan, we have seen many landmark judgments of which the most contentious part is judgments regarding Martial Law under the regime of Iskander Ali Mirza, where for the first time in the history of Pakistan a concept of “doctrine of necessity” was introduced. To be aware of background, a Constitution is the supreme law and any other law for time being in force is either in consonance with the Constitution or it is not in conflict with the parameters set by it. Constitution, if could be suspended by the “doctrine of necessity” then a question straight away hits the mind as what would be the impact of subservient law, and if the law is causing official arbitrariness or public is not delighted from the contents of law.

According to Al Jazeera an article was published on 24 April, 2019 which states that approximately 1.9 Million cases are pending in Pakistan. Government has taken a step for the formation of model courts for the disposal of pending cases through fast track system. The step is Jubilant but lacks empirical remedy for speedy trial of cases. One of the most important stumbling block towards dispensation of justice is an often call of strike by the Lawyer community which leaves the struggle of months in vain. Many a times Judge is on leave and there is no alternate solution to look forward towards disposal of regular cases. To put it in this way that if a Judge is on leave, justice is also on leave.

Procedural laws in Pakistan are disingenuous towards dispensation of justice. Law Jurists and Parliamentarian should come up with a better solution to ease the pain of litigants and to redeem the anguish of public towards our legal system. One of the basic factor on which our legal fraternity must work is regarding use of artificial intelligence. In order to know more about artificial intelligence this link will be very useful,  https://www.youtube.com/watch?v=Xcucq8qMpx0. Most of our court’s work is manual especially in civil court and sessions court and this is one of the factor that our justice system is slow. Keeping pace with time is need of hour and our legal fraternity must introduce modern means to dispense justice expeditiously.

One of the other important factor in delay of justice is lack of sufficient presiding officers to deal with every day cases. One civil judge on average is dealing with 150-200 cases per day. It is not humanly possible for a judge to justly deal with all 200 cases a day. This will by default reduce performance of the Judges. Government must induct more judges in order to overcome this unfortunate problem.

Unnecessary litigation is another factor which has not only overburdened our judiciary and  legal fraternity but has also created uncertainty in our Public. Many a times court do observe that the cases, applications and criminal proceedings are fictitious, frivolous and with ulterior motives but lamentably, there are no strict sanctions against aforementioned litigants. There must be a special institution to which must act on instructions of courts against the litigants with frivolous motives, that institution must r inspect and  impose heavy fines and sanctions on culprits who did not approach the Court with clean hands..

Being a student of law this question has always confused me that when two parties contest the litigation against each other, produce their testimony and the court find one party right and the other one wrong. What about the testimonies and witnesses of the party to whom the court has declared wrong. There must be a special law which must deal with these mischief and miscreants. This is another factor which fuels the delay in justice.

Last but not the least law is not all about statutes and judgments. It is also the intrinsic values of the people, to be disciplined, well mannered and optimistic. Institutions are created for the protection and not to harass. Our coordination with legal agencies is very important for dispensation of justice. Law must be to what in HLA Hart’s terminology internalized by the people.

The views expressed in this article are those of the author and do not necessarily reflect the views of Law Recorder Pakistan.

By: Mian Sohail Shoaib

Author is a practicing Lawyer and Advocate High Court. He is a graduate of University of London.