Pakistan Law Commission S Annual Report 2001

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Pakistan Law Commission’s Annual Report 2001

We are pleased to publish the first Annual Report 2001 of the Pakistan Law Commission. The Report contains essential information about the Commission, its composition, functions and performance during the year.

Systematic and periodic review/reform of the law is essential to keep it in tune with changing times, emerging realities and requirements of the society. It is also necessary to introduce, from time to time, reforms in the administration of justice and implement measures for expeditious resolution of disputes and dispensation of justice to improve governance. The Pakistan Law Commission is mandated to achieve such objectives. It is required to play a key role to ensure that the law and its administration meet the needs of the community. In this respect, the Commission has so far approved and published some 35 reports (Appendix IV of the Report) containing law reform proposals. All such reports were forwarded to the Government for further necessary action/implementation. Copies of these reports may be obtained from the Commission’s Secretariat on nominal charges.

The Report also contains a list of published material (Appendix VI) on issues/problems of public concern/interest. The purpose is to disseminate information on legal matters and make the society law-conscious. Copies of the material may be obtained, free of cost, from the Secretariat. The public may also contact the Secretariat to obtain any further details or information on these or other legal/judicial issues.

The Report further provides a list of law reform proposals currently pending before the Commission. The Commission interacts with individuals, professional groups and research bodies on issues of legal/judicial reform. It welcomes views, comments or suggestions on pending matters or new proposals for legal/judicial reform. Comments/suggestions, if any, may be communicated to the Secretariat through phone, fax or email.

Dr Faqir Hussain

Secretary

PAKISTAN LAW COMMISSION

Annual Report 2001

OVERNMENT OF PAKISTAN

PAKISTAN LAW COMMISSION

SUPREME COURT BUILDING

CONSTITUTION AVENUE

ISLAMABAD

CONTENTS

Foreword

Developed societies are built on the foundation of good governance. It is so because good governance furnishes impetus for investment, trade and commerce, so very essential for economic growth and progress. Good governance implies besides other factors, the preservation of rule of law, adherence to due process procedure and expeditious, fair and impartial dispensation of justice under an effective legal system.

It is the endeavour of every government to ensure access to justice to all segments of the population, in particular, the deprived and under-privileged classes and people living in remote areas. This is a laudable objective and important goal, having far reaching consequences. When realised, it will certainly contribute to national cohesion, consolidation and creating congenial atmosphere for growth and advancement. Such goal in order to be realised, require, inter alia, the presence of a modern legal system and competent judicial administration, having the confidence of the people, so that people may come forward to avail the system for securing justice, resolving disputes and getting redress of their grievances.

The Pakistan Law Commission is a permanent statutory institution, mandated inter alia, to study and keep under review the legal and judicial systems of the country, with a view to making to the Federal Government and provincial governments, appropriate recommendations for reform, modernisation and improvement thereof. This body, while formulating its recommendations, considers relevant societal factors such as the prevalent socio-economic and political conditions and constitutional norms and principles are adhered to.

The judicial system of Pakistan is currently faced with the problem of huge backlog and consequential delays in resolution of conflicts and disputes. There are reasons for this state of affairs including increasing litigation in society, shortage of judges, inadequate infrastructure facilities and defects in laws/procedure. It was with a view to streamlining the procedural law that the Commission recently approved 4 draft statutes. These drafts were published for eliciting public opinion. Having received feedback from the general public and, after thorough deliberations/consultations with the relevant government departments, serving/retired judges of superior/subordinate courts, bar councils/associations, law teachers and concerned citizens, the drafts were revised and finally approved on 17 March 2001. The drafts have since been forwarded to the Government for processing and implementation.

The above mentioned draft statutes include:

1-The Small Claims & Minor Offences Courts Ordinance 2001, which provides for the establishment of such courts at the tehsil level with a view to making justice easily and cheaply accessible to the masses. These courts will resort to bringing about a mutually acceptable solution of the disputes through conciliation and mediation, and in case any such compromise is arrived at, the same shall be enforced as a decree of the court. In the event of failure of a compromise however, the Court, through specified summary procedure, shall seek to settle the dispute within a period of sixty days. A simplified procedure for execution of decree has also been prescribed. It is expected that with the establishment of these courts, bulk of the petty disputes will be resolved quickly and at the lowest cost to the parties. This will reduce burden on other courts and delays in disposal of cases shall be minimised.

2-The Family Courts (Amendment) Ordinance 2001, also aims at establishing such courts at the community level with emphasis on conciliatory proceedings for settling disputes between spouses. In the event of disagreement however, the Court shall resolve all disputes pertaining to divorce, dower, dowry, maintenance and custody of children, etc in specified period of four months. The family courts are further being empowered to grant interim maintenance to wife and/or children during the pendency of trial proceedings.

3-The Code of Criminal Procedure (Amendment) Ordinance 2001, empowers the Session Judges/Additional Session Judge to entertain petitions of the nature of habeas corpus and provide expeditious relief to the aggrieved party. This is indeed an effort to put an end to the abuse of power and arbitrary exercise of authority by the influential and public functionaries by enabling the people, residing in far-flung areas to truly enjoy the benefits of the fundamental right to personal liberty and the right not to be arrested or detained without breach of law.

4-The Code of Civil Procedure (Amendment) Ordinance 2001, provides for amicable settlement of disputes through conciliation and mediation. Courts are further obligated to thoroughly scrutinise the pleadings of the parties with a view to reject, in limine, false, fictitious and frivolous claims and to persuade the parties to reach a mutually agreed resolution of their disputes.

With the approval of the above above-mentioned 4 draft statutes, the Pakistan Law Commission has completed some 35 reports on diverse issues and problems of national importance.

While formulating recommendations, the Commission examines the objective factors and makes a comparative analysis of laws in other countries with a view to making effective and practical recommendations for reform. In the process, the relevant stakeholders including the government departments, professional groups such as bar councils/associations and general public are consulted. Unfortunately, the services of the Commission have not been fully utilised in as much as few references are received from the Government for reformation of laws. Furthermore, the recommendations of the Commission do not receive the urgency and importance that they deserve. The purpose for establishment of the Commission was to making this body an effective, meaningful and useful institution for reformation of laws and development of administration of justice. We cannot ignore the importance of timely reform and modernization of the legal and judicial systems to meet the growing demands of our developing society. Progress and development is possible only when there is good governance in the society and good governance is not possible in the absence of a modern and effective system of laws and their full and effective enforcement. There is, therefore, all the more a greater need to use the services of the Commission and to give due importance and urgency to its recommendations. The Government must, therefore, give serious thought and consideration to all the recommendations of the Commission and, in particular, the 4 draft statutes approved this year.

(IRSHAD HASAN KHAN)

Chairman

Introduction

The Pakistan Law Commission is a permanent Federal Government institution, established under the Law Commission Ordinance (XIV) of 1979. The Commission is headed by the Chief Justice of Pakistan and comprise eleven other members including the Chief Justices of Federal Shariat Court, provincial High Courts, Secretary, Ministry of Law, Justice & Human Rights and four other prominent members.

Functions

The Commission has been assigned wide functions including the reform/modernization of laws, both federal and provincial as well as substantive and procedural, reform in the administration of justice, improving the system of legal education, adopting simple and effective procedure to ensure inexpensive and speedy justice, simplifying laws for easy comprehension and devising steps to make the society law-conscious. Furthermore, the Federal Government or a Provincial Government may refer to the Commission any matter relevant to its function for opinion and advice.

Secretariat

The Commission has a Secretariat, headed by a Secretary and comprising other officers and staff. It is situated on the 2nd Floor of Administration Block of the Supreme Court Building, Islamabad.

Library & Computerisation

The Commission has its own library with a collection of 3670 reference books and law reports. The staff also has access to the Supreme Court library, National Library and library of the Ministry of Law, Justice, Human Rights & Parliamentary Affairs. A computer network has been installed in the Secretariat and all research work and most administrative work is done through computers. Access to Internet is available. The Commission operates its own website The website displays all essential information about the Commission e.g. its composition, functions, reports already approved and pending projects, etc.

Performance

The Commission has so far approved and published 35 reports on different issues/subjects and submitted the same to the Government for consideration and implementation. A detailed list of such reports is given in Appendix (iv). The Secretariat also operates a Legal Awareness Scheme, wherein existing laws/procedures are translated into Urdu and write-ups are prepared on legal issues/problems of public interest and published through the news media. Citizens are encouraged to obtain further clarification and/or advice on legal issues from the Secretariat on telephone, fax, e-mail or b personal visits. A list of such published material is at Appendix (vi). Similarly, several other projects of legal/judicial reform are currently under consideration of the Commission. They are at various stages of completion. A list of such pending projects is available in the Report. The Commission welcomes interaction with research institutions, professional bodies and citizens on issues of legal and judicial reform. Views, comments and suggestions for reform of law, administration of justice and improving the quality of legal education may be forwarded to the Secretariat.

This is the first Annual Report published by the Commission, detailing its performance/activities during the year and giving other essential information. Hopefully, this shall become a regular feature and we shall be able to bring out future issues.

(DR FAQIR HUSSAIN)

Secretary

The Commission

The Pakistan Law Commission was established under a statute in 1979. It may be mentioned that the Hamoodur Rehman’s Law Reform Commission 1967 had recommended to the Government to create a permanent law reform body for regular and systematic reform of the legal system in the country. The Commission stated that no society in the world could remain static, thus it is necessary, that the legal system should keep pace with the changing times and emerging realities. It further observed that the setting up of a permanent body would be a valuable assistance to the Government by ensuring that out-dated laws were deleted and new provisions introduced. The Commission thus suggested a permanent statutory body for law reform. Accordingly, the Government constituted under an Ordinance (XIV of 1979), the Pakistan Law Commission in 1979.

The Commission is vested with powers under the Pakistan Commission of Inquiry Act 1956. All executive authorities in Pakistan are bound to assist the Commission in discharge of its functions. The Commission has a permanent Secretariat headed by a Secretary. (Names of former Chairmen, Members and Secretaries of the Commission are at Appendixes (i and ii).

Functions

The functions of the Commission, listed in Section 6 of the Law Commission Ordinance, are as follows:

Section 6. Function of the Commission.-

(1)The Commission shall study and keep under review on a continuing systematic basis the statutes and other laws with a view to making recommendations to the Federal Government and the Provincial Governments for the improvement, modernization and reform thereof and, in particular, for. –

(i)making or bringing the laws into accord with the changing needs of the society consistent with the ideology of Pakistan and the concept of Islamic social justice;

(ii)adopting of simple and effective procedure for the administration of laws to ensure substantial, inexpensive and speedy justice;

(iii)arranging the codification and unification of laws in order to eliminate multiplicity of laws on the same subject;

(iv)removing anomalies in the laws;

(v)repealing obsolete or unnecessary provisions in the laws;

(vi)simplifying laws for easy comprehension and devising steps to make the society law conscious;

(vii)introduction of reforms in the administration of justice; and

(viii)removing inconsistencies between the laws within the legislative competence of Parliament and those within the legislative competence of a Provincial Assembly.

(2)The Commission shall study the present system of legal education and make recommendations to the Federal Government for improving the standard of legal education.

(3)The Federal Government or a Provincial Government may refer to the Commission any matter relevant to its functions for opinion and advice.

Composition

The Commission consists of the Chief Justice of Pakistan, being the ex-officio Chairman, ten members, appointed by the Federal Government on the recommendation of the Chairman and the Secretary to the Government of Pakistan in the Ministry of Law, ex-officio member.

Chairman

MR.JUSTICE IRSHAD HASAN KHAN

Chief Justice of Pakistan

Law graduate from University Law College, Lahore. Enrolled as Pleader in 1959, Advocate, High Court West Pakistan in 1961, Supreme Court of Pakistan in 1966, signed the Rolls of Senior Advocate, Supreme Court in 1979. Visiting Professor at the Himayat-e-Islam Law College from 1975 to 1979. Served as Deputy Attorney General for Pakistan from 1979 to 1981.

* After gaining distinction in the legal profession and as Deputy Attorney General for Pakistan, was elevated as Judge, Lahore High Court in 1981;

*Served as Secretary, Ministry of Law, Justice and Parliamentary Affairs from 1984 to 1988;

*Appointed as Ad hoc Judge, Supreme Court in October 1994;

*Served as Acting Chief Justice, Lahore High Court, from June 1995 to April 1996;

*Appointed permanent Judge, Supreme Court in April 1996 and Chief Justice of Pakistan on 26 January 2000;

*Ex-officio Chairman, Supreme Judicial Council, Chief Justices’ Committee, Pakistan Law Commission, Federal Judicial Academy [an institution for training of judicial officers/ court staff], Al-Mizan Foundation [body for the welfare of the retired Judges of the superior courts, retired/serving judges of subordinate courts and court staff] and Judicial Policy Body [responsible for strengthening of institutional capacity for judicial and legal reforms].

*Patron, Commonwealth Judicial Education Institute, Halifax, Nova Scotia, Canada;

*Is on the Panel of Arbitrators, International Centre for Settlement of Investment Disputes, Washington D.C., U.S.A.;

*Was Member of the Committee appointed by the Supreme Court of Pakistan on Independence of Judiciary and Separation of the Judiciary from the Executive;

*Was Member, Sharia’h Academy, International Islamic University, Islamabad, Member, Syndicate, Bahauddin Zakariya University, Multan and Syndicate, University of Engineering and Technology, Lahore; Member, Board of Governors, International Islamic University, Islamabad;

*Participated in the Conference of the Attorneys General for Asia and Pacific to commemorate 100 years of the Office of Attorney General at Colombo (Sri Lanka);

*Participated in the Seminar on Role of Government in the Industrial Relations at Sydney (Australia);