A Proposal For Legal Reforms
My learned friends, I would like to present an open resolution for three important reforms before this august house—a house of wisdom, virtue, knowledge and integrity; a house that supported the rule of law during the lawyers’ movement; a house that stood for the rule of law whenever dictators or usurpers tried to abridge the Constitution or infringe upon the fundamental rights of our fellow citizens. I feel honoured to be a member of the legal profession.
I acknowledge and admire the sacrifices for the rule of law and the independence of the judiciary. I look up to your wisdom and invite your gracious attention to the following issues:
Legal profession of young lawyers
The training of our young lawyers, underpinning their professionalism and performance is not adequately prioritized by our bar associations, our law colleges and universities and our government. Let us resolve to play an active role in the capacity building of young lawyers via continuous legal education, a national law clerkship programme and more extensive pro bono legal aid work.
A young lawyer in Pakistan faces a dilemma: either to start practicing without proper on-the-job professional training, or face long-term financial constraints working with senior members of the bar. There are only a few law firm jobs that pay a young lawyer enough to raise a family. So the bar needs to be concerned about younger members. Our young members are petted as heroes in any movement for the rule of law and the independence of the judiciary. However, during normal times, they are deprived of proper mentoring and professional support. So I urge senior members of the bar to support our younger members and channel their energy into the mainstream of the profession.
It may be appreciated that many young lawyers do not have flagship degrees but they are the backbone of this profession. The grassroots lawyers in Pakistan have the ability and desire to make things happen. So let us focus on the capacity building of young lawyers through continuous legal education including organized short courses in bar councils, judicial academies and law schools, as well as their engagement with the Supreme Court, High Courts, District Courts, Attorney General and the Advocate General’s office under a national law clerkship program. Employing young lawyers with senior members in research, drafting and arguments on a division-of-work/fee basis will help them and the profession at large. Moreover, the bar councils may amend Pakistan Bar Council Legal Education Rules, 1978, and Pakistan Bar Council Free Legal Aid Scheme, 1998, and generate special funds to put these ideas into practice seeking additional support from government and international organisations.
Strengthening the higher judiciary
We suffer from the perception that we have a weak judicial system. Let us resolve that we will strengthen our judicial system by making the appointment processes within the higher judiciary more transparent via providing a double-ended constitutional mechanism for the nomination of judges first by High Courts and then through the Judicial Commission of Pakistan.
The World Justice Project (WJP) Rule of Law Index 2015 ranks Pakistan at 98 out of 102 countries factoring the state of corruption, order and security, fundamental rights, civil justice and the criminal justice system, etc. The recent judgment of the Supreme Court on military courts further indicates the need for improvements in the system. Therefore, we need to prioritize reforms in the judiciary. We may appreciate that the independence of the judiciary depends, not only on the letter of the law but on public confidence. For the sake of public confidence and institutional integrity, Article 175-A of 1973 Constitution may be amended providing a dual constitutional mechanism for the nomination of judges. Composition of the Judicial Commission may also be reconsidered as the present composition is itself a result of constitutional reforms that may not stop any time soon. In many countries, judicial appointments are a collaborative process without any concerns about sacrificing the independence of the judiciary. If we strengthen our higher judiciary, it would eventually influence the performance of the district judiciary as well. It is proposed that the judges in both the higher and the lower courts may be provided training in case management, etc. Furthermore, trained staff facilitating in the management and disposal of cases should be provided to the judges. We have a good judiciary, however, on balance, our judicial system seems to fail in the steering of an ever-increasing workload. So it is high time to learn from other jurisdictions and use these lessons in reforming our judicial system.
Reforming the bar councils
There is a perception that our bar councils have become politicized. Let us resolve that. We will make our bar councils effective regulatory bodies focused on monitoring legal services. Through the bar councils we will introduce strict requirements and procedures for entering and continuing in the legal profession. That would require taking uncompromising measures in order to enforce professional standards.
In furtherance of achieving professional excellence, the bar councils may learn from other professional bodies, such as the Law Society of England which is fully focused on administering professional standards. With regards to bar politics, we should condemn lavish expenditures on canvassing for votes i.e. feasts and semi-commercial advertisements. Being the members of a learned profession, we should embody good values in order to guide national politics, therefore we should demand a fixed ceiling on expenses by amending Rule 10-A and Rule 31-A of the Pakistan Legal Practitioners and Bar Council Rules, 1976. Indeed, this will save the hard-earned money of lawyers, allowing them a fair opportunity to contribute to the legal profession.
Having stood on the shoulders of historical giants like Mohammad Ali Jinnah and Allama Mohammad Iqbal, our profession has immense potential. Every day we stand and speak for the frail and fragile members of our society. But this is not enough. We must show our potential to make changes in our own law and practice to support the legal profession in Pakistan. These changes will also promote the rule of law, democracy and good governance in the country.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.