Ministry of Law and Justice

Presentation on Legal Reforms

Dr. Farogh Naseem

Barrister Maleeka Bokhari
November 2018
 Proposed Legal Reforms by Ministry of Law & Justice

A. The Civil Procedure (Amendment) Bill, 2018

B. The Legal Aid and Justice Authority Bill, 2018
C. The Enforcement of Women’s Property Rights Bill, 2018
D. The Letters of Administration and Succession Certificates
Bill, 2018
E. The Whistleblower Protection and Vigilance Commission
Bill, 2018
F. The Service Tribunals (Amendment) Bill, 2018
G. Mutual Legal Assistance Bill, 2018
H. Action Plan for Women and Girls in the Legal System 2
 A. The Civil Procedure (Amendment) Bill, 2018
1. Two Tier System
• Major cause of delay in our civil litigation system is that when a
party files a suit accompanied with an injunction/stay
application, the main suit does not proceed. The Court only then
focuses on the stay application which takes many years to decide
the stay/injunction. The main suit remains in a state of inertia.
• A new concept of a two tier-system has been proposed. Two
different judges will hear the entire suit. In the 1st Tier, the main
case would be heard by one judge without interruption till
finalisation of the proceedings. Stay and other miscellaneous
applications would be heard in the 2nd Tier by another judge.

3
A. The Civil Procedure (Amendment) Bill, 2018 (cont’d)

• The proposed change is a radically evolutionary step in

our civil litigation system, completely unique and
different from other jurisdictions such as India,
Bangladesh, United Kingdom etc.; one that will
ameliorate the civil litigation practice and will become a
precedence for other countries to follow.
• It is safe to say that such a change will reduce 30/40
years period of civil litigation to maximum of 2 years or
a little more including Appeals.

4
A. The Civil Procedure (Amendment) Bill, 2018 (cont’d)

2. Spot Checks

• In civil litigation, especially in matters relating to land, property and

revenue disputes the decisions are based on inspections including
physical demarcations effected by Patwaris, Mukhtiakars, lower grade
revenue officers who often manipulate or give false reports which
results in appeals and applications by aggrieved parties being stuck in
litigation for years.

• A new concept of spot checks has been proposed where the judge
conducting the trial would be able to conduct spot inspections for a
just adjudication of the case. This would not only reduce corruption
but also render a more accurate judgment, since nothing beats
personal first-hand knowledge of the judge.

• At the same time this will not only lessen unnecessary and protracted
litigation but it shall enhance accuracy and be destructive of delays.

5
A. The Civil Procedure (Amendment) Bill, 2018 (cont’d)

3. Process of summons/notices to be simultaneous

and modern devices be utilised for affecting service

• There are different stages/steps in effecting service

of notices and summons which causes inordinate
delays. Similarly the bailiffs are also instrumental in
hampering judicial process by intentionally effecting
service of notice/summons on wrong persons or
sometimes deliberately not causing the service at
all, while generating false reports and also by
delaying the matters service by causing service on
the last day.

6
A. The Civil Procedure (Amendment) Bill, 2018 (cont’d)

• The proposed amendment gets rids of all steps of

service so that all modes of service such as personal
service, service by post, electronic service through
mobile or any other electronic medium, affixture
and newspapers are done in one go.
• The proposed amendment also binds the process
server or bailiff to record factum of the service by
taking photographs of defendants, any person
receiving on defendants’ behalf and the place at
which summons/notices are delivered. CDR may
also be used for such purpose.
7
A. The Civil Procedure (Amendment) Bill, 2018 (cont’d)

4. Recording of Evidence through Commission

• Under the current Code of Civil Procedure, the

evidence/statement of a witness is mainly recorded
orally by Judges, who in many cases being overburdened
with backlog of litigation either avoid to engage in
recording of evidence, prioritizing other cases, or in
many cases witnesses tend not to appear for many years
which hampers the judicial process.

• Under the proposed regime, evidence/statement is

going to be recorded through Commission comprising
advocates/retired judges who will complete the process
not later than ninety days.
8
A. The Civil Procedure (Amendment) Bill, 2018 (cont’d)

• Also under the new regime, it shall be compulsory to

record evidence and proceedings electronically
through audio and video recording.

• This would not only reduce burden on the Courts as

they would be able to focus on other proceedings, at
the same time it would also curb allegations of fraud
and fabrication of statement by parties. Also the
demeanour of witnesses will become part of the
record to be assessed by any judge who is adjudicating
the case later in time.

• The Commission will also engage and employ many

lawyers.
9
A. The Civil Procedure (Amendment) Bill, 2018 (cont’d)
5. Abolition of Multiple tiers of Appeals

• Presently, the Civil Procedure Code contains 2 appeals

and a Revision up to the High Court after which a further
mechanism is given for appeal to the Supreme Court,
which is a major cause of excessive and inordinate delays
for conclusion of the proceedings.

• The proposed amendment gets rid of multiple tiers of

appeal along with a Revision and provides for 1 appeal
to High Court and 1 final civil petition to the Supreme
Court. This change alone will cut down the delays by 3 to
5 years.

10
A. The Civil Procedure (Amendment) Bill, 2018 (cont’d)

6. Costs

• The proposed amendments revolutionize the

concept of costs, taking into account other prevalent
legislation on the point and improving them.

• According to the new concept of losing side shall pay

the winning side the cost of litigation along with
compulsory “Adjournment Costs” of Rs.5000 for
seeking adjournment as well as “Special Costs” if any
party is found of abusing the process of the court
through frivolous litigation or by relying on false
averments. 11
A. The Civil Procedure (Amendment) Bill, 2018 (cont’d)

7. Way forward

• Similar amendments may be brought about by

legislatures of Punjab, KPK, Sindh and Baluchistan, as
the present proposal in for the ICT.

12
 B. Legal Aid and Justice Authority Bill, 2018

1. The purpose of this Bill is to establish a Legal Aid and Justice

Authority (“Authority”) which shall provide legal, financial or
other assistance and access to justice to the poor and vulnerable
segments of the society in criminal cases.

2. Those who are unable to afford legal representation or pay for

bail amounts or penalties/fines in criminal cases, except those
charged with heinous offences, will rank for legal aid.

3. As the law is applicable to criminal cases, it shall apply to the

whole of Pakistan.

4. Women, children and transgenders in respect of “sexual gender

based violent offences (SGBV)” will be given preference.

13
 B. Legal Aid and Justice Authority Bill, 2018 (cont’d)

5. The Authority will have a Board that will administer the Authority.
The Board will have representation of the Federation and all the
provinces and will mainly consist of:

• Federal Minister of Human Rights

• Attorney General of Pakistan and Advocate Generals of each
province
• Secretary, Ministry of Human Rights
• Secretary, Ministry of Finance
• Secretary, Ministry of Law and Justice
• Vice Chairman, Pakistan Bar Council
• one prominent female social worker; or
• representatives of the above.
14
 B. Legal Aid and Justice Authority Bill, 2018 (cont’d)

6. The day to day affairs and any functions assigned by the Board of
the Authority will be managed by an appointed Director General.
The Director General will be a person who has been or is qualified
as a High Court Judge.

7. The Authority is empowered to raise awareness in the society

about their legal rights and to provide legal aid to the ones who are
unable to retain a lawyer for themselves.

8. A charged criminal offender (except those charged with heinous

offences) can apply for legal aid.

9. Disadvantaged women and children will be given preference,

especially in case of “sexual gender based violent offences (SGBV)”.
15
 B. Legal Aid and Justice Authority Bill, 2018 (cont’d)

10. The eligibility criteria to apply for legal aid will be defined from
time to time.

11. If the Authority comes to the conclusion that any documents

submitted by an applicant are said to be false, then the Authority
will have the power to revoke the aid for that specific applicant.

12. A panel of advocates including the Free Representation Unit, as is

available in the UK, will be monitored by the Authority, and will
work in all the districts in Pakistan.

13. A fund for the Authority will be created and will be financed by
the government, or contributions from local or international
institutions or corporations or other sources. 16
 B. Legal Aid and Justice Authority Bill, 2018 (cont’d)

14. The Women in Distress and Detention Fund Act, 1996 (XV of 1996)
being inadequate shall stand repealed.

15. The Authority shall replace the deficient mechanism of judges and
bureaucrats assessing/dispensing legal aid.

16. Through the proposed law, a focused central authority with proper
guidelines and purposes will be created.

17
 C. Enforcement of Women’s Property Rights Bill, 2018

1. This Bill aims to protect and secure the rights of ownership and
possession of women in properties and this Bill will extend to the
whole of the Islamabad Capital Territory.

2. Under the new law already existing institutions of Women

Ombudsman will be utilized.

3. The powers of Ombudsman under this Bill are going to be the same
as the powers given to the Ombudsman under the Protection
against Harassment of Women at the Workplace Act, 2010 (III of
2010).

18
C. Enforcement of Women’s Property Rights Bill, 2018 (cont’d)

4. The Ombudsman has the power to receive

complaints of women deprived of ownership or
possession of properties and has the authority to
pass corrective orders envisaged under this bill as
deemed fit.

5. If the Ombudsman after a summary enquiry finds

that the complainant has been illegally deprived or
dispossessed of her property, he/she shall direct the
Deputy Commissioner or any private person or state
functionary including the police to restore the
possession or ownership. 19
C. Enforcement of Women’s Property Rights Bill, 2018 (cont’d)

6. If the matter requires an in-depth enquiry, investigation or

detailed recording of evidence or intricate adjudication, the matter
shall be referred to the concerned Civil Court preferably within
sixty days. This will save women themselves from filing cases in
Civil Courts.

7. The complaints could be made by women directly or by her

representative or NGOs or the Ombudsman can take suo moto
notice.

8. As this law is being made for the ICT, other provinces are required
to follow suit.

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D. The Letters of Administration and Succession Certificates
Bill, 2018
1. The proposed law provides for an efficacious and speedy
mechanism for issuance of Letters of Administration and Succession
Certificates aimed at preventing identity fraud and forgery by
NADRA.

2. Under the proposed law, either the whole law or part thereof, for
the time being, shall extend only to Islamabad Capital Territory and
will come into force on such dates as are notified by the
Government.

3. NADRA shall be authorized to issue Letters of Administration or

Succession Certificates to the legal heirs of a deceased in respect of
immovable or movable properties, in accordance with Family
Registration Certificates maintained by NADRA, where there is no
“dispute” amongst the legal heirs. In case of a dispute, the matter
will be decided by the civil courts. 21
D. The Letters of Administration and Succession Certificates
Bill, 2018 (cont’d)
4. “Dispute”, for this purpose has been defined, inter alia, as an
objection by legal heirs or by any claimant of legal heirship, any
complication which may arise in establishing the identity of legal
heirs or any situation, matter or event requiring adjudication or
recording of evidence or where at least one of the legal heirs is a
minor.
5. NADRA shall establish or notify any of its offices, domestic or
abroad, as Succession Facilitation Unit(s) (SFU) for the purpose of
receipt, processing and assessment of applications and issuance of
the Letters of Administration and Succession Certificates.
6. The SFU shall receive, process and assess the applications by way
of a summary enquiry and in case of any dispute amongst the legal
heirs, decline to assess the applications for filing afresh before the
appropriate forum in accordance with the provisions of 22 the
Succession Act, 1925.
D. The Letters of Administration and Succession Certificates
Bill, 2018 (cont’d)

7. Unless NADRA declines to process an application for issuance of

the Letters of Administration or Succession Certificates by the legal
heirs, jurisdiction of the courts will been barred.
8. Prior to issuance of Letters of Administration or Succession
Certificates, NADRA shall issue a notice to the general public on a
web portal and daily newspapers of wide circulation.

9. NADRA is also required to obtain bio-metric verification of the

applicant and all the legal heirs before issuance of the letters of
administration or succession certificates under the proposed law.

10. NADRA while conducting verification of legal heirs and applicants

will be permitted to resort to all available modern devices
including biometric verification.
23
D. The Letters of Administration and Succession Certificates
Bill, 2018 (cont’d)
11. Any person who knowingly makes any false statement or furnishes
any false information shall be punishable with rigorous
imprisonment.

12. Letters of administration or succession certificates issued under

this law shall be in favour all legal heirs of deceased with details of
their respective shares as provided in the personal laws of such
legal heirs.

13. Any aggrieved person may seek remedies available under the law
against the issuance of Letters of Administration or Succession
Certificates by the Authority.

14. NADRA is also required to maintain an online portal providing for

updated record of the Letters of Administration and Succession
Certificates issued under the proposed legislation. 24
D. The Letters of Administration and Succession Certificates
Bill, 2018 (cont’d)

15. NADRA may also charge fees or other sums for its services
including sums incurred on publication of public notice. All the
charges or sums so collected shall then be credited to the NADRA
Fund.

16. Nearly 20% litigation in every civil court is with regard to issuance
of Letters of Administration and Succession Certificates. Out of
these, some 90% of cases are undisputed which are clogged in civil
courts and later up to 7/8 years for resolution of simplest of cases.
Through the proposals, for the undisputed cases ranging up to 90%
shall be resolved within 15 days or so. Apart from providing ease
and expedition to the litigants proposal shall relieve up to about
20% burden on civil courts.

25
D. The Letters of Administration and Succession Certificates
Bill, 2018 (cont’d)

17. Under proposed legislation, letters of administration or succession

certificates could be issued within 15 days.

18. NADRA authorities have given their consent in this regard.

19. The proposal is for ICT. Other provinces need to pass similar laws.

26
 E. The Whistleblower Protection and Vigilance Commission
Bill, 2018

1. Under the proposed statute a whistle blower could provide

information to an independent Commission regarding corruption
and corrupt practices. The Commission, after assessing the
information, would forward the same to the NAB, FIA (including
complaints regarding money laundering), SECP (pertaining to
public listed companies), Federal and Provincial anti-corruption
departments.

2. The Commission will become the complainant before the

authorities, mentioned above, keeping the identity of the whistle
blower confidential with a view to afford protection to the whistle
blower.

27
 E. The Whistleblower Protection and Vigilance Commission
Bill, 2018 (cont’d)
3. The confidentiality aspect of the whistle blower is a step in the
direction towards witness protection and such identity will not be
disclosed unless the whistle blower himself desires his identity to
be made public.

4. In case any recovery is effected in view the information provided

by the whistle blower, he would get 20% of the recovered amount.

5. In case the recovery is made on account of information provided

by more than one whistle blower then the 20% reward amount
shall be shared equitably apportioned between the whistle
blowers in terms of the contribution each whistle blower,
information would make in effecting the recovery
28
 E. The Whistleblower Protection and Vigilance Commission
Bill, 2018 (cont’d)
6. Under the new law the whistle blower will be offered protection
from dismissal or removal from office, disciplinary proceedings,
threat, intimidation etc.

7. Anonymous whistle blower information shall not be entertained.

8. The Commission shall have all the powers under the Civil
Procedure Code and the Criminal Procedure Code with a view to
obtain information form any office, authority, department or
person for the purposes of the new law.

9. In case of submitting any false information, the informant shall be

visited with imprisonment of two years and fine up to two lac
rupees or with both 29
 E. The Whistleblower Protection and Vigilance Commission
Bill, 2018 (cont’d)

10. In view of the new statute the Public Interest Disclosures Act, 2017
legislated by previous government is proposed to be repealed
because under the Act of 2017 the information could only be
provided to the head of particular department or institution and it
would be left to his sole discretion so as to proceed with any
complaint or otherwise.

11. Under the KPK statute with regard to whistle blowers kindly note
that the law is only intended with regard on-going investigations.

12. Since the present law is with regard to corruption and corrupt
practices, which is a special matter under the criminal law, the
present law shall be a federal statute, and hence it is proposed that
the KPK law may also be repealed 30
 E. The Whistleblower Protection and Vigilance Commission
Bill, 2018 (cont’d)

13. Members of the Whistle Blower Commission shall be appointed by

the Government.

14. The eligibility criteria for the appointment of members is given in

section 4(4) of the new statute, which reads as follows:-

“No person shall be recommended for appointment as a Member

unless that person is known for his integrity, expertise, eminence
and experience for not less than ten years in any relevant field
including industry, commerce, economics, finance, law,
accountancy, public administration, or service of Pakistan.”

15. From amongst the members, one person shall be appointed as the
Chairman, by the Federal Government. 31
 F. Service Tribunal (Amendment) Bill, 2018
1. Under the present laws, the remedies available to civil servants are
most inadequate and convoluted with the result that for some
types of service disputes the Service Tribunal has the jurisdiction,
while for the others the High Courts under its Writ Jurisdiction, the
Supreme Court in its original Constitutional Jurisdiction and the
Civil Courts have respective jurisdictions.

2. The direct result of the above that there is a state of ultimate

confusion as the courts and lawyers are entangled in subtle and
difficult arguments in respect of jurisdiction of different forums. As
a further consequence of the later, the courts and tribunals are
more engaged with regard to jurisdictional issues rather than the
determination of the actual controversies on merits.

32
 F. Service Tribunal (Amendment) Bill, 2018 (cont’d)

3. At present there are about 30% service cases pending in the High
Courts and once the proposed amendments are passed, the High
Courts will be relieved of this heavy burden and would be able to
focus on other cases.

4. The Service Tribunal also spends years before it could reach

decisions with finality.

5. Under the new amendment we suggest that the service tribunal

may have two divisions. The Original Division shall comprise a
Chairman who has been or is qualified to be a High Court Judge,
and other members.

6. Any action, inaction or service dispute, including induction

disputes would be entertained by the Original Division without
the Civil Servant having the need to file a representation and
waiting for 90 days or more before he could file an appeal.
33
 F. Service Tribunal (Amendment) Bill, 2018 (cont’d)

7. The order of the Original Division will be appealable before an

Appellate Division of the Tribunal comprising of the Chairman
who has been or is qualified to be judge of the Supreme Court.
There will be other members also.

8. Under the new law it is proposed that all matters of fitness to

hold a post including promotion matters be dealt by the tribunal
and not the High Courts.

9. The amendment shall be a Federal statute pertaining to Federal

Civil Servants while it is proposed that the provinces also
legislate similar amendments in relation to Provincial Civil
Servants.

34
 G. Mutual Legal Assistance Bill, 2018

1. This new law was being debated for 9 years or so and now the
present government has proposed this new law, in its first 30 days.
2. The new statute shall regulate the procedure for rendering and
soliciting Mutual Legal Assistance in criminal matters by Pakistan.
3. The main reason for the foreign government not complying with
Pakistan’s requests for asset or foreign asset recovery has been
the non-availability of MLA law.
4. There are statutes such as the NAB Ordinance, FBR laws,
Extradition Act, the SECP statute, the AML dispensation, PECA and
the Anti-Narcotics laws which partly provides for MLA. But the
main complaint of the foreign governments is that there is no
Central Authority which processes MLA requests made by foreign
governments. And because of this lack of reciprocity that the
foreign governments do not entertain Pakistan’s requests. The lack
of a Central MLA Authority is also one of the objections in FATF
regime. 35
5. Now, through the new statute the Federal Government will
appoint the Secretary Interior or any other officer of the
Government as the Central MLA Authority in keeping with the
United Nations Convention Against Corruption (UNCAC) and
United Nations Conventions Against Transnational Organised
Crime.
6. Once the MLA law is passed it shall facilitate the stolen asset
recovery from abroad and shall also remove one of the FATF
objections.
7. The MLA regimes already available under the existing statutes
mentioned aforesaid, shall be kept intact, however, the Central
MLA Authority under the new statute will be focused with regard
to sending and soliciting MLA requests.

36
 H. Action Plan for Women and Girls’ in the Legal System

• The Action Plan for Women and Girls’ in the Justice System is a
comprehensive proposal for the advancement and protection of
rights of women across Pakistan.
• It is pertinent to note that despite the constitutional guarantees
protecting fundamental rights and the continuing evolution of the
availability of Pakistan’s legal framework to improve the women
rights paradigm, the justice system continues to evade women.
• Moreover, there are significant gaps between the extensive legal
framework and women and girls’ experience of the justice system.
• Consequently, the Action Plan sets out a number of key legislative,
administrative and policy measures to improve the existing
weaknesses/gaps which inter alia include the following:

37
 H. Action Plan for Women and Girls’ in the Legal System (cont’d)

a) Enactment of New Legislation

b) Delegated Legislation

c) Administrative/Policy Reforms

d) Capacity Building on violence against women and girls

legislation

e) Awareness Campaign

38
 H. Action Plan for Women and Girls’ in the Legal System (cont’d)

a) Enactment of New Legislation

Criminal Laws
• Acid and Burn Crime Bill, 2018
• ICT Protection of Women Against Domestic Violence Bill
• Domestic Violence (Protection and Prevention) Bill, 2018 for KPK
• ICT Prohibition of Employment of Children Bill, 2018
• Criminal Law (Amendment) (Offences in the name or under the Pretext of
Honor) Bill, 2018
• Prohibition of Corporal Punishment Bill, 2018
• Torture, Custodial Death and Custodial Rape Bill, 2018
• Legal Aid and Justice Authority Bill, 2018
39
 H. Action Plan for Women and Girls’ in the Legal System (cont’d)

Civil Laws
• Amendment of Child Marriage Restraint Laws across Pakistan after
consultation with the Council of Islamic Ideology

• Amendment to the Muslim Family Laws Ordinance, 1961 after

consultation with the Council of Islamic Ideology

• Christian Marriage Bill, 2018

• Christian Divorce Bill, 2018

• Enforcement of Women’s Property Rights Bill, 2018

• Parsi Marriage and Divorce Statutes will be debated

• Laws prohibiting forced conversion and remedies in relation

thereto are to be debated 40
 H. Action Plan for Women and Girls’ in the Legal System (cont’d)

b) Delegated Legislation

• Notify rules under Hindu Marriage Act, 2017

• Notify rules under Juvenile Justice Act, 2018

• Notify rules under the National Commission on the Rights of

Child Act, 2017

• Notify rules under ICT Child Protection Act, 2018

• Implementation of Witness Protection Laws across Pakistan

41
 H. Action Plan for Women and Girls’ in the Legal System (cont’d)

c) Administrative / Policy Reforms

• Establishment of Gender Based Violence Courts at district level.

• Provincial Governments to carry out an audit of women/female

desks at police stations in collaboration with the Provincial and
National Commission on the status of Women.

• Prime Minister to form taskforces at Federal and Provincial level to

initiate and implement Action Plan for Women and Child Abuse

• Medico Legal Reforms

• Notify national guidelines for investigation , prosecution and trial of

Sexual and Gender Based violence Offences

• Abolishment of Practice of Two Finger Test by Medical Practitioners

42
 H. Action Plan for Women and Girls’ in the Legal System (cont’d)

d) Capacity Building on Violence against Women and Girls Legislation

• Public Prosecutors

• Investigation Officers

• Medico Legal Officers

• Lawyers and Judges

• Probation Officers

• Legal training of Nikkah Registrars

43
 H. Action Plan for Women and Girls’ in the Legal System (cont’d)

e) Awareness Campaign

• Distribution of literature on women protection laws, juvenile rights

• Existing Provincial as well Federal Governments Departments and

Organizations dealing with General public may be utilized for
distribution of literature on women protection laws, juveniles’
rights.

• Offices of Provincial Commissions on Status of Women and

Government owned hospitals, Rural Health Facilitation Centres and
community centers shall be involved for effective awareness
campaign.
44
 H. Action Plan for Women and Girls’ in the Legal System (cont’d)

• Federal Government to direct private TV channels to broadcast

awareness programmes on Women protection laws, juvenile
justice, child protection, child marriage.

• Ministry of Human Rights in collaboration with Ministry of Law and

Justice will arrange a National Conference of Federal and Provincial
Law Ministers, representatives from Education Departments and
Higher Education Commission, Secretaries and Federal/Provincial
Judicial Training Academies to review the Schools Curricula and Text
Books (from elementary to college level) and Training Manuals of
Judicial Training Academies to recommend incorporation of specific
chapters on the rights and protection of women in Pakistan.

45
Thank You