In 1947, the subcontinent got freedom from the British government, creating the dominion of Pakistan and India. Both the countries inherited the legacy of colonial laws promulgated in the nineteenth or early twentieth century to rule on the colonies. However, even after the lapse of more than 70 years, Pakistan is largely run under the colonial legal framework. The colonial laws were created in a specific political context and for a specific purpose to regulate the subjects of the Empire. Most of these laws have lost their relevance. But no serious effort is made by our legislature to repeal or revise these laws considering that the people of Pakistan are now free citizens of an independent state.
A quick survey of civil and criminal laws reveals the impact of colonial rules in our legal system. The colonial edifice of laws that are applicable in Pakistan includes the Code of Civil Procedure, 1908 (CPC), the Contract Act, 1872, the Court Fees Act, 1870, the Land Acquisition Act, 1894, the Specific Relief Act, 1877, the Transfer of Property Act, 1882, the Canal and Drainage Act, 1873, the Arbitration Act, 1940, the Guardians and Wards Act, 1890, the Oath Act, 1873, the Electricity Act, 1910, the Banker’s Books Evidence Act, 1891, the Code of Criminal Procedure, 1898 (CrPC), the Pakistan Penal Code, 1860 (PPC), Explosives Act, 1884, Fatal Accidents Act, 1855, Forest Act, 1927, and Ancient Monuments Prevention Act, 1904.
The bulk of these laws carry the date of its commencement from the 19th or early 20th century. Obviously, the colonial masters created laws to regulate the subjects of a colony. So, the very intent of the ruler and the objective of such laws make them unsuitable for a free state. How can citizens of an independent state enjoy fruits of freedom within the legal framework conceived and crafted by a coloniser? How can institutional structures designed by a master foster the dignity, freedom and liberty of slaves? How can modern democracy be promoted under the legacy of colonial laws?
The premises and genesis of procedures and our substantive laws are colonial. For example, Sections 46, 54, 55, and 56 of PPC, Sections 61, 340 of CrPC, and Rules 26.1 and 26.2 of the Police Rules, 1934 describe the powers of the police to arrest a person and rights of the arrested person. However, these laws do not envisage any effective control and accountability over the police officers, that how should they exercise their power to arrest? Similarly, Chapter 4 of the Police Rules, 1934 provides for clothing/uniform and badges of police; however, it does not require the arresting officers to bear a clear identification of their name to facilitate easy identification. Under the existing criminal laws, the arresting officers are neither required to inform the person arrested that he has a right to have a relative or friend informed or the arrest nor to use any standardized language when arresting a suspect. The police officers are also not obliged to explain to the person arrested their right to bail in a non-bailable case.
Thus, criminal laws should be amended to specify as to how, when, where, and in what circumstances the arrest can be made. The practice of arrest can be improved by increased vigilance over the police though monitoring by civil society (e.g. a citizen’s committee), supervision within the hierarchy of police (e.g. review of arrest by officer-in-charge), and by providing penal consequences for the police for non-compliance with the guidelines and mandate of the law. Effective control and accountability of arresting officers need to be established, so that arrest is made only when it is necessary—to avoid harassment and unlawful detention of the citizens of a free State. The law must provide clear and consistent guidance for making an arrest, as it deprives a person of the precious fundamental right to ‘life and liberty.’
The criminal laws need to provide for displaying posters at conspicuous places at the police station in a local language. These posters should provide information as to the legal rights of the arrested person while in prison and also his/her rights of bail. Information leaflets should be provided in the language of the arrested person so that he could understand his legal rights and seek their protection. There must be a mandatory review of the arrest by the officer-in-charge to minimize arbitrary detention and protect the dignity of the citizens. The officer-in-charge of a police station must be made responsible for health and welfare of the arrested person and to monitor the arrested persons regularly to ensure they are not mistreated or tortured for the extraction of evidence or for any other reason. The law must ensure that the right to consult a lawyer is provided to the arrested person before being questioned by the police. The officer-in-charge must be held responsible if this right is denied to the arrested person. Complete information must be provided to the accused and his lawyer to provide him with the right to a fair trial and due process under Art.10A of the Constitution. The vulnerable person like sick, women, and children must be provided additional support at the police station for the protection of their dignity. There should be an effective mechanism for the redressal of complaints against the police, so that arrested person could make a complaint without any fear. A time period may be fixed for the disposal of complaints and the decision of police authorities should be made subject to judicial review.
In short, there should be step-by-step guidance for the police on how to make an arrest as it is a matter of liberty of the citizens. The arresting officer must satisfy a ‘specified criteria’ before causing an arrest and must be made to explain the arrest to officer-in-charge and the lawyer of the arrested person. There should be a strong monitoring and accountability mechanism in place to ensure that fundamental rights of the arrested person are protected (subject to reasonable restrictions imposed by laws i.e., prison regulations).
The laws promulgated in the 18th/19th century also have lost their relevance and efficacy. The Code of Civil Procedure, 1908, provides a procedural mechanism for the trial and adjudication of the matters of civil nature. A civil trial begins with the filing of a civil suit before a civil court of competent jurisdiction. Under Order 5 of the CPC, the court then issues summons to the party against whom the suit is filed. Sometimes, it takes months before the service of notice is affected. The mode of summoning has obviously become outdated as it requires service of notice through conventional means such as the staff of the court and courier etc. It is to be appreciated that we have entered into a digital age when a more efficient mode of service of notice through social media channels is available. In Punjab, some amendments have been made (Section 27 A) in the CPC allowing service of summons through an electronic device; however, service through social media channels is not specifically provided. Some amendments provide timelines for filing pleadings, producing evidence and written arguments, which are appreciable. But these amendments appear to be a patchwork considering the overall scheme and span of the CPC. In fact, a thorough review of the CPC is needed with the consultation of civil procedure experts like Justice (R) Aamer Raza A. Khan from Pakistan and renowned juristic from other countries. Despite recent amendments, Order 9 of the CPC requires physical attendance of both the parties and their counsels on each date of hearing with consequences for non-appearance such as the dismissal of the suit or ex-parte proceedings. The conclusion of a trial generally takes years. Thus, the stringent requirement of physical appearance on each date causes inconvenience to the parties or their counsels. The electronic filing of pleadings and the conduct the proceedings through video link etc. can be adopted by amending inefficient court procedures.
Similarly, laws pertaining to powers of civil servants such as the Police Rules, 1934 and the architecture of civil service were constructed by colonial masters to subjugate the population of a colony. The very foundation of civil service is erected on the premise of ‘master and servant’. The civil service of the Britsih India was meant to stifle the basic rights of the ‘colonized’ people. Unfortunately, we carry on with such a legal framework and institutional structures that are colonial (hence, oppressive) in nature. The civil servants in Pakistan largely enjoy impunity for their actions taken in ‘good faith’. The term ‘good faith’ is essentially vague and grey. It provides protection from the consequences of unlawful and unfettered actions. Therefore, the civil service needs to be effectively regulated and reformed for the protection of the fundamental rights of the people.
We are essentially continuing the laws and policies of 1947 when the Government of India Act, 1935, was adopted by Pakistan as the main instrument for governance. Since then sporadic efforts have been made to upgrade some laws; however, a consistent, systematic and comprehensive approach in this regard is lacking. To move forward as an independent State, the plethora of laws embraced in 1947 need to be reviewed with a thorough deliberation of the legislature and the members of the legal fraternity.
The global legal landscape is fast changing. We need to come out of our colonial past and accommodate change in laws and our legal system. All the existing laws in Pakistan are required to be critically examined and updated appreciating the jurisprudential and institutional developments worldwide, advancement in international commerce and business relations, dynamics of social, civil, political, and economic rights and liberties, and innovation in science and technology. New laws could be promulgated afresh like the Pakistan Code of Civil Procedure, 2020, the Pakistan Code of Criminal Procedure, 2020, and the Pakistan Penal Code, 2020. In short, to strengthen the justice system of Pakistan, a robust project of legal reforms needs to be initiated and supported by the legislature, the executive, and the judiciary.
The writer is an advocate in the Supreme Court of Pakistan