Economic Rights And The Legal System In Pakistan

ECONOMIC RIGHTS AND THE LEGAL SYSTEM IN PAKISTAN ECONOMIC RIGHTS AND THE LEGAL SYSTEM IN PAKISTAN By Zulfiqar Hameed, B.A.,LL.B. Lahore 1. Society is not merely an agglomeration of persons but is meant to be an organized whole where certain norms, laws and rules should have sway giving it the elements of security, predictability of behaviour and a modicum of organization. The more developed a society the better developed are the systems endowing rights and duties on the members of that society. The primary indicators of such development of a society are the security afforded to the person and property of the members of a society. The protection is given through the laws of the society and can be classified as laws regarding person and laws regarding property. Further sophistication comes in the shape of laws overseeing the economic transactions in the society which ensure predictability in transactions. ECONOMIC RIGHTS 2. The laws relating to property and economic transaction give economic rights. The Black's Law Dictionary defines a right as a power, privilege, faculty or demand, inherent in one person and incident upon another. Jurisprudentially speaking, Salmond has defined a right as an interest which is enforceable by law. "The word "rights" is generic, common; embracing whatever may be lawfully claimed". (U.S. Fidelity & Guaranty Co. v. Borough Bank of Brooklyn, 146 N.Y.S. 870,876 App. Div. 479). In a narrower sense, "The word "right" denotes, among other things, "property." "interest," "power, " "prerogative," "immunity," and "privilege"; and in law is most frequently applied to property in its restricted sense. As an enforceable legal right it means that which one has a legal right to do. (Shaw v. Proffit, 109 P. 584,57 Or. 192, Ann. Cas. 1913‑A,63). 3. For the purpose of our present discussion we shall indentify economic rights as rights affecting the property or economic transactions in the society. These can be classified into rights relating to property, corporeal as well as otherwise, and rights regarding economic transactions. The most sanctity is attached to rights regarding corporeal property and the rights appurtenant thereto are accorded protection through the provisions of the main penal laws of the land. The rights relating to economic transactions are protected through special laws encompassing a particular domain. A world power like USSR fell as under through economic collapse and a family will starve as a result of economic mismanagement. So powerful is the grip of economic rights in modern world. HISTORICAL BACKGROUND 4. The present legal framework was given by the British like most other laws in this part of the world. In certain respects this legal framework was quite forward looking and innovative by the standards of the times. The rights relating to possession and enjoyment of corporeal properties are protected through the provisions in the Penal Code and any violation thereof would give rise to criminal action. The rights relating to economic transactions are protected by the provisions of special laws like The Contract Act, Specific Relief Act, Easements Act, Limitation Act, The Transfer of Property Act, The Sale of Goods Act, The Negotiable Instruments Act and other related laws. The enforcement of rights flowing from these laws is through civil proceedings. Adversarial system of justice is the sheet‑anchor of actual administration of justice in our Courts of civil judicature while entire responsibility of bringing home the guilt to the accused lies on the shoulders of the prosecution. Law of evidence insists on proof of a fact by the party who asserts it. Courts act as silent and impartial spectators, and if some judicial officer displays undue through justified zeal in accelerating disposal of a case, he is dubbed as partial and interested by aggrieved litigant with readily available aid and advice of legal fraternity who are ethically bound to espouse the cause of their clients. A superior Court Judge once paid left‑handed tribute to a renowned lawyer to cut him short in arguments by remarking: "A lawyer of your competence and standing should see the hollowness of your point and ought not to raise it!" The lawyer retorted: "My Lord!" Let us change our places. "Why?" exclaimed the Judge! "Because your Lordship wants me to do the duty cast on you as a Judge under the law". This brings out the oddity of our system of justice. In such a predicament when the Judge, the lawyer and opponent parties are acting in advancement of their own, often conflicting points of view, justice will obviously be sacrificed at the altar of procedural bottle‑necks. PRESENT STATUS OF ECONOMIC RIGHTS 5. The plight of legal framework regarding economic rights is depicted through the scathing criticism by an economist while commenting on the economic fallout of the failure of the legal system. He says, "By far the most important failure that has gone virtually unnoticed is the inability of the political system to devise a legal framework for the conduct of economic business. .... It does not only mean presence on legal books of laws and regulations for governing economic behaviour. Such laws exist in Pakistan ... ... There is a lack of faith in the efficacy of institutional arrangements for dispute resolution ... ... This diminution of confidence in legal framework for conducting economic transactions leads to a vicious circle as more importance is given to development of contacts and 'Sifarish'. Institutions progressively deteriorate. Corruption becomes rampant for the contacts people use for getting favours the bureaucracy usually charge a fee for the services they render. The society pays‑‑in fact, has paid a heavy price for the failure". 6. It is said that the certainty of punishment and not the severity of it serves as a deterrent to crime. In our present legal system the certainty of punishment is almost non‑existent as the conviction rate in economic crimes is abysmally low. The civil proceedings regarding enforcement of economic rights fare even worse as they hang fire virtually endlessly without any concrete outcome. To cite some examples, it is well‑nigh impossible to enforce contractual obligations or to get one's rented property back or to get back the money one may have lent without going through the legal gauntlet. Most people would either try for an out of Court settlement or would just try to, forget about the whole thing as the result cannot be expected from legal proceedings any time soon. 7. There are myriad reasons for this failure of the legal system. Some are the common failings of the criminal justice system while some are peculiar to the nature of economic rights. 8. The biggest problem which besets our legal system and is undermining the efficacy of the system is the inundation of the Courts with cases. The magnitude of legal actions has rocketed to such heights that it has swamped our Courts. The number of Judges at every level is muchless than required. With the separation of executive and judiciary the Judges are overburdened than ever, not only with civil cases but also with criminal cases. 9. Due to judicial activism and the failure of the civil administration in redressing people's problems a Much larger number of people is resorting to the Courts. The erstwhile practice of not entertaining cases unless they were prima facie genuine had the advantage of not only reducing the work load of the cases but also discouraged frivolous litigation. Since Courts, specially the superior Courts, are not refraining from entertaining. Cases on the ground of lack of jurisdiction therefore the number of cases has increased phenomenally. When bureaucracy does not do justice in its own domain and parliamentarians are interested elsewhere than is law‑making then naturally judiciary has to extend its soot to enforce Constitutional obligations on their part. 10. There is a tendency among the litigants, specially in civil cases, of trying to delay the disposal of the cases. The delay generally suits the side which has an advantageous position in a case and is enjoying the benefits of the status quo. Such parties try to postpone the disposal of the case even though it is to the detriment of the other side. The Judges being themselves overworked, prefer to give adjournments partly due to overwork and partly due to necessity of paying attention to more important and represented cases. 11. Since our legal system puts the burden of proof on the person making an assertion and makes him responsible for the production of documentary or other evidence, most of the civil cases cannot be proved in the Court of law. Our economy being mostly informal and the transactions being most of the time undocumented, the claims cannot 'be substantiated through legally admissible evidence. As a result most of the claims are disposed of as not proved even if they were otherwise genuine. Similarly there is no social compulsion regarding giving of evidence as a citizen. Rather it is the other way round and people do not come forward to give evidence either due to a fear for their life and property or are deterred by the cumbersome procedures of the Courts. This has become the bane of our legal system, both on the civil and the criminal side. 12. Most of our laws regulating the financial transactions are arcane by today's standards. There are many areas in which there is no adequate legislation. These are the times of electronic money transfers, plastic money and conducting of millions' worth of business in minutes through computers. The new and the novel cannot be controlled through the old and the archaic. We need new legislation and new regulatory mechanisms which can cater to the needs of today and tomorrow. 13. There is an urgent need to completely overhaul the whole system. However the following steps need to be taken urgently: (i) The manpower and facilities in the Courts should be enhanced on an emergency basis. This means that not only the number of presiding officers be increased but the number of process‑serving staff and their logistical facilities be also enhanced considerably. This would not only increase the ‑disposal of cases but would also remove the procedural bottle‑necks which result in delays in the disposal of cases. (ii) The laws governing economic rights and transactions should be immediately revised with a view to bringing them in accordance with the requirements of the times. The second priority should be the curtailing of the cumbersome procedures of the legal proceedings. This can be done by stipulating time periods for disposal of cases and strict monitoring so that cases are disposed of within the laid down limitation. (iii) The remedies of appeal, revisions and second appeals should be reduced considerably and confidence in judicial and bureaucratic recruitment be raised through promotion and adoption of merit at every stage. Normal cases should end up with High Courts and Supreme Court should be spared to perform the duty of laying down law in highly complicated and Constitutional cases certified to be fit by High Courts or by Supreme Court, irrespective of whether they are civil, commercial, criminal or Constitutional. (iv) For cases involving a small amount or cases of petty nature having no documentary proofs, a system of local "Panchayat" style Courts can be set up. In India the experience of "Lok Adalat" (Courts of the people) has been quite successful. It can be quite helpful in disposing of people's small claims at the local level with a minimum of expense and legal work. (v) Certain cases like rent matters and family matters are supposed to be summarily tried and disposed of. Due to lack of effective supervision and load of work they are also not being disposed of summarily. The supervising authorities, specially the High Courts, should ensure that such matters are disposed of within a given period of time. Cases of a certain small denomination can also be included in this category for quick disposal. (vi) Changes in laws and procedures should be effected to ensure two things. Firstly that no party can manage to postpone the disposal of cases for long. This can be done by limiting the number of adjournments that can be granted in a case and by disposing of cases ex parse if unnecessary delay is being caused. Where a case has been disposed of ex parte it should nut be subjected to revision or reversal except when the affected party can show very convincing reasons for not appearing in the lower Court. Secondly, that frivolous litigation is discouraged by awarding exemplary penalties in cases where the Judge thinks it fit. For this purpose certain criteria can be laid down. At the initial stage those tests should be applied to see whether the case is genuine or not. In situations where the case is not genuine, exemplary penalties should be imposed to deter frivolous litigation. (vii) There are increasingly high number of lawyers in our country. There are representative Bar Bodies in official and non‑official domains. By and large all lawyers and their elected representatives are conscientious, patriotic and highly skilled in their own spheres of practice. Solicitor system prevalent in U.K. and U.S. should be promoted to associate them with dispensation of justice and whatever lawyers of contesting parties decide mutually should be conclusive, binding and enforcible except for cases of misconduct or corruption, occasion of which will seldom arise. Extra‑load piled up during a year should be got disposed of during summer and winter vacations by ad hoc appointments to be made out of old, retired and reputedly honest lawyers and judges. Likewise, teachers of law faculties, colleges and universities be named to fill those ad hoc appointments during vacations. (viii) Law of arbitration is already in force in our country. Its machinery should be resorted to in all civil, commercial and compoundable or non -compoundable cases Retired Judges of Supreme Court, High Courts, District and Sessions Judges, Civil Judges, Magistrates and Special Court Judges can be requested to help in this regard. The need of the hour is to give people confidence in the legal system so that they should be sure that their rights are not non‑existent but are well -protected.