The legal system in Pakistan causes frustration at the best of times. As with everything else in the country, in many aspects it is simply found lacking and is in dire need of reform. To this end, following discussions with various stakeholders within the legal system, we have identified several major problems relevant to court proceedings.
In our opinion, improvement in the current legal system and in particular, in court proceedings, will require a complete overhaul of the current system which extends from the Lower Courts to the High Courts. This will be a very time consuming and costly process, however, after our initial discussions with various stakeholders, we are of the opinion that the challenges faced by the current legal system require introduction of technology based reforms. The process of use of technology has been initiated in the legal system throughout Pakistan. However, this process is still in its infancy and its potential is as yet unrealised.
We have identified several key areas in the procedural elements of the current legal system which can be improved through the use of technology (or otherwise) via the following methods (a detailed discussion is provided later in this article):
A. Transcription of Court Proceedings;
B. Installation of Cameras in Court;
C. Centralised Online Database for All High Court Judgements (Reported or Otherwise);
D. Judicial Internship Program; and
E. Centralised Online Filing System and Database.
(A to E above may be collectively referred to as “The Proposed Reforms”).
THE PROPOSED REFORMS
Detailed analysis of the Proposed Reforms is provided below:
A. TRANSCRIPTION OF COURT PROCEEDINGS
I. Within the current court system, it is impossible to maintain a complete record of submissions, arguments and observations of all parties to a hearing (including judges) in their entirety. This has created a loophole which is oft-exploited by lawyers to contest decisions in Appellate proceedings; resulting in prolonged litigation which is time consuming, a drain on resources (of all parties involved) and most importantly, adversely effective on the rights of litigants. Within the current court system, judges in Appellate proceedings cannot draw definite conclusions from the record available, which makes it very difficult for judges to decide on matters with conviction.
ii. In the current court system, cross-examination proceedings are recorded in the following manner:
Witness is asked a question (in Urdu or English) → Witness responds to the question (in Urdu or English) → The Presiding Officer or the counsel asking the question dictates the answer provided by the witness → The answer is recorded by the Presiding Officer as per the dictation / translation provided by the counsel.
The cross-examination loses its value as a consequence of the procedure explained above. The purpose of a cross-examination is to extract answers from the witness in his own words, which depict his true version of the events. However, within the procedure explained above, it is possible that the final recorded version can be distorted or worse, tampered with, easily and hence does not depict the true statement of the witness. This, resultantly, has a huge effect on the final impact of a case.
iii. During court proceedings, counsels usually adopt delaying tactics by taking up the court’s time with irrelevant pleadings. This is a strategy that is often employed with the intention to have a case adjourned (as a case delaying tactic). Because of the high volume of cases, judges are usually reluctant to record every submission made in every case (the judge currently records everything by hand) due to the impracticality of such a practice. In order to save time and to allow for sufficient time for all cases on the daily list, judges usually call for an adjournment of proceedings when such tactics are employed by counsel, therefore prolonging litigation and hence affecting the rights of the litigants.
Introduction of a system that records transcripts of all court proceedings, which will entail the following:
a) State-of-the-art audio recording system linked to a central database;
b) Employment and training of at least two (2) court recorders for every courtroom. The court recorders will be professional typists (properly trained) who will record everything on a desktop computer that is linked to a central database; and
c) Establishment of a central database that will store transcriptional records (audio and text) of all court proceedings for a specified period of time (to be determined after consultation with stakeholders); after which they will be archived.
i. Improves efficiency of the courts;
ii. Brings transparency to court proceedings;
iii. Reduces the cost of litigation; and
iv. Dual transcription systems (audio and text) will ensure a strong check and balance system.
B. INSTALLATION OF CAMERAS IN COURT
i. Security inside courtrooms is a major issue. Although there are cameras installed externally for the security of the court buildings, courtrooms (inside) are not equipped with cameras.
ii. The maintenance of proper decorum in courtrooms is a challenge to the court administration. Decorum in the courtroom is often maligned by counsel and parties to proceedings via the continuous use of mobile phones, whispering and general rowdiness.
iii. Judges are reluctant to take disciplinary action against the acts stated in (ii) above because of a lack of substantial evidence available (because there are no cameras installed in the courtrooms) and also because of the possibility of a potentially escalated backlash from the Bar Association.
iv. Judges in the Districts and Sessions Courts (Lower Judiciary) are often found absent or late in their courtrooms, due to which precious time of parties to a case is wasted. This also creates an opportunity to seek adjournments without sufficient cause.
i. Installation of cameras at every courtroom at every level, with the following ancillary mechanisms:
a) Establishment of a court monitoring department. This department will consist of monitoring and recording staff and will also comprise of security personnel
b) This system will have a live feed which is transmitted directly to the court monitoring department; and
c) A central database will be established to keep record of all court proceedings for a specified period of time.
ii. This camera system has been implemented by the Lahore High Court in all its courtrooms (at every level).
i. Transparency in court proceedings;
ii. Improvement to courtroom security;
iii. Provides both the judges and the counsels with solid evidence in instances of infractions;
iv. Ensures attendance of the lower judiciary; and
v. Allows the judges to take disciplinary action against threats to court decorum.
C. CENTRALISED ONLINE DATABASE FOR ALL HIGH COURT JUDGEMENTS (REPORTED OR OTHERWISE)
i. All High Courts in Pakistan are separate, independent entities. The judgements of each High Court are not binding on other High Courts in Pakistan. At present, precedents can only be drawn from reported judgements, the publishing of which is selective in nature. As a consequence, a high number of important judgements that lay down a principle of law are often not included in the reported judgements; and are not available to lawyers, judges and the general public for reference.
ii. It is often the case that reported judgements which are set aside by the Supreme Court of Pakistan are not highlighted. As a result, those reported judgements continue to be cited as precedent which becomes misleading for the judges of the High Courts.
i. Establishment of a comprehensive online database which records all judgements of the High Courts (reported or otherwise) comprising of the following ancillary functions:
a) Creation of a website that categorically stores all judgements of the High Courts (equipped with a search engine);
b) Recording of all historical judgements of the High Courts which set a precedent that are still in effect; and
c) Establishment of a monitoring cell which will keep track of reported judgements. Judgements uploaded to this database will be categorised as:
(i) Precedent (upheld by the Supreme Court of Pakistan),
(ii) Set aside by the Supreme Court of Pakistan or
(iii) Precedents yet to be challenged in the Supreme Court of Pakistan.
I. Compilation of all existing precedents established by the High Courts which will be readily available in a centralised database to all lawyers and judges;
ii. Provides an efficient and up-to-date research foundation for both judges and lawyers; and
iii. Ensures that potential maladministration of justice / or misleading of the Court is avoided through the availability of a proper record.
D. JUDICIAL INTERNSHIP PROGRAM
i. Proper research staff is not available to the judges of the High Courts and the Lower Judiciary. This results in judges’ time being wasted on micromanagement of research functions. As a consequence, writing of judgements becomes time consuming and a negative effect is had on the quality of judgements. Furthermore, stakeholders to legal proceedings have to wait for extended periods to receive justice.
I. A paid judicial internship program to be introduced in consultation with the judiciary to address their needs.
I. Allows judges to focus on important aspects of the case as opposed to devoting time to research functions;
ii. Increases the efficiency of the judges;
iii. Reduces time taken to submit judgements;
iv. Ensures speedy case resolution.
E. CENTRALISED ONLINE FILING SYSTEM AND DATABASE
I. Submission of pleadings is currently a very time consuming and costly process.
ii. The existence of red tape and outdated procedural formalities wastes time and resources by creating unnecessary hurdles.
iii. Allows for the possibility of tampering with and the disappearance of the official record.
I. Creation of a centralised online filing system which will allow for the following:
a) Online filing of court fees;
b) Online filing of complete pleadings (including evidence); and
c) Online application system for certified copies of court records, including court judgements.
ii. Creation of a centralised database which will comprise of the following:
a) Complete case record (including pleadings and evidence) available to the court and to parties to a case; and
b) Complete record of procedural formalities.
i. Increases efficiency in court proceedings;
ii. Increases transparency in court proceedings;
iii. Eliminates the possibility of corruption;
iv. Provides for speedy resolution of cases;
v. Saves time and money of the litigants.
POTENTIAL EFFECTS OF THE PROPOSED REFORMS
In our opinion, implementation of the Proposed Reforms listed above will potentially have the following effects:
i. Improvement in the efficiency of court proceedings;
ii. Reduction in the cost and time of litigation;
iii. Transparency in court proceedings;
iv. Maintenance of court decorum;
v. Reduction in frivolous litigation;
vi. Accountability of both the Bar and the Bench through a check and balance system;
vii. Assistance in enforcement of procedural formalities; and
viii. Availability of a proper and up-to-date record.
By Wasim Abid & Rahman Ali Khan
(Partners at Abid & Khan Law)