State and Majority Will of the People (5)

                   

In the previous parts of this article https://secondriseofislam.blogspot.com/2018/05/normal-0-false-false-false-en-us-x-none.html and https://secondriseofislam.blogspot.com/2018/05/state-and-majority-will-of-people-4.html we have seen that Pakistan’s system of justice has to be reformed to bring it in line with general and religious expectations of the people. We have discussed some deficiencies found in the system of justice and possible ways to remove those deficiencies. In the succeeding lines, we would discuss another obstacle found in the system of justice; this obstacle pertains to laws/ rules/ regulations governing the system of justice, and plays an important role in depriving the people of cheap and speedy justice. 

Unfortunately, the present system of adjudication gives too much weightage to procedures. Fair and speedy adjudication is buried somewhere, once entangled in unnecessary judicial procedures. In fact, procedures are implemented as scrupulously as laws are meant to be implemented. No doubt the procedures were devised to ensure fair adjudication, but now the procedures themselves have become a hurdle in the way of fair and speedy adjudication due to their length and complexity. These judicial procedures need to be simplified.  

Another aspect of the issue, that is pertaining to civil laws, is that procedures and laws are not separable; laws and procedures are combined while enacting  Civil Law Acts. Laws are those which contain legal notions whereas Procedures are actually a tool to implement laws but, in case of civil laws, procedures have been legislated as laws and given the status of laws. Such an unnecessary combination of laws and procedures makes the laws unduly complex. Once procedures are separated from the civil laws, the civil laws would become automatically simple. The author is not suggesting that civil laws should be completely separated from the procedures; some procedures are having such a vital importance that they should not be separated from the body of laws, but most of the procedures have been made unduly the part of laws, and it is quite feasible to separate them from the body of laws. Such a separation of procedures from civil laws would also enhance the acceptability of civil laws among the people. Most of the legal notions adopted in civil laws are in line with Islamic concepts of law, and as such can be readily accepted by the people. These are the lengthy and unnecessary procedures attached with civil laws which are giving un-Islamic color to the civil laws. Once procedures are separated from the civil laws, people would welcome the existing notions of civil laws as Islamic laws. However such civil law notions which are repugnant to Islamic concepts may be modified accordingly. The author does not think it is an easy task to separate procedures from laws; a well -focused effort is required for the purpose.

 Once procedures are separated from the civil laws, the courts may be given discretion asto how meticulously procedures are to be implemented in each individual case. SOPs may also be framed in this regard in order to avoid the possibility of misuse of discretion. It may be appreciated civil laws notions are not so many; civil laws are always based on these notions. It means, once separated from the procedures, civil laws would become automatically quite brief. In order to implement such a brief body of civil laws, we have to forego the system of adjudication we inherited from the British, in which procedures are made a part and parcel of the civil laws; instead of British system, we may adopt a system of adjudication in which procedures may be implemented only according to requirements, and may be ignored, when not necessarily required. 

We may conclude that in order to bring our state institutions in line with peoples’ general and religious aspirations, we need to reform our institutions not only structurally and procedurally but also legislatively. The objective of every system of justice is to impart justice but we are imparting injustice in the name of justice and spending annually billions of rupees for a failed cause. If we can reform our justice system by spending more on it so that it is enabled to meet the very objective it was established for, nothing would be better than it.