THE HIGH COURT OF THE FUTURE

Hassan Niazi

Hassan Niazi holds an LL.M. from New York University where he was a Hauser Global Scholar. He is currently a Senior Associate at Axis Law Chambers and also a Visiting Faculty Member at the Lahore University of Management Sciences. 180 Law Review [Vol: IX

ABSTRACT

In 2016, the Lahore High Court celebrated 150 years since its creation. This milestone should be used as a moment of reflection for the institution to brainstorm over how it can improve to become a model institute of justice in the country. This essay examines how, through the use of case management systems and technology, the Lahore High Court can strive to overcome the inefficiency that plagues our justice system. Furthermore, it argues for the Lahore High Court to embrace diversity and dissent as values that are essential features of a model institute of justice. The paper, although not strictly legal, aims at identifying certain areas in which the Lahore High Court is deficient, and then suggesting viable solutions to these problems. It asks that we now set our sights on the Lahore High Court of the future, and aim to make this institution more efficient, more diverse, more open-minded and finally more just.

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WHERE PAST MEETS PRESENT

Besides the long stretch of road called the Mall, in the shadow of Anarkali and the General Post Office, lies the hub of ’s legal community. Its majestic red brick etched with history, the Lahore High Court is a grand sight. Walk inside and enter one of its many courtrooms and you will watch the intersection of past and present come alive before your eyes. While the courtrooms may be built in the old architectural style that peppers most government structures in Lahore, you can still see the incremental changes brought to it through the passage of time. New courtrooms have been added, floors have been redone, and new faces sit dispensing justice while the portraits of former judges look on from the walls. It is difficult to avoid the past while standing in the present when one is in this Court. Yet, the current Lahore High Court must look towards the future as well. Its grandeur cannot be maintained by mere architecture and history alone. Having celebrated 150 years since its creation in 2016, the Court needs to sharpen its understanding of what the future needs from it, if it is to be considered one of the best institutions of justice in the country. This paper comments on what the Lahore High Court should strive to achieve in the future. It looks at the existing state of affairs and points out improvements that can be made with regards to them. Due to lack of space, it does not focus on substantive law issues, but rather on improving the court’s role in being a model institute of justice through methods such as, inter alia, case management and the use of technology. This paper strives to show that through the implementation of these ideas the Lahore High Court can become a model court of justice for this country.

I. CASE MANAGEMENT

When asked about the problem with the justice system in Pakistan, any random individual on the street will most probably answer with one word: delay. 182 Pakistan Law Review [Vol: IX

A shocking example of delay in our court system is shown by an anecdote narrated by Professor Osama Siddiqui.1 While interviewing litigants with pending cases before the courts in Lahore, one respondent shared his experience by saying: ‘Let me give you an idea of how long my case has been running. As a child, I used to accompany my grandfather when he came to the court to pursue this case. I am a grown man now and the case is still undecided after over 30 years of litigation.’2 Through meticulous research, Professor Siddiqui gauged the experience of litigants before the courts in Pakistan with regards to delay. The resulting statistics were far from optimistic. One common factor many people identify as the cause of delay is that the two procedural codes governing the law in Pakistan - The Code of Civil Procedure, 1908 and the Criminal Procedure Code, 1898 - are outdated relics of our colonial past that no longer serve any purpose in modern times. It is said that the two codes merely add to the delay of cases and are in dire need of reform. In some respects, it is true that procedural codes need reform. The United Kingdom, after all, reformed its procedural codes on the basis of the recommendations of Lord Woolf, while Pakistan keeps to its old ways. However, the constant delays faced by litigants in Pakistan are not solely due to the procedural codes. That is too reductive a reason. The existing legislation under, for example, the Code of Civil Procedure, 1908 and the High Court Rules, does contain solutions to chronic delays. The real problem is that these solutions are not enforced the way they should be by the courts.3 An example of this can be seen in Order IX of the Code of Civil Procedure, 1908, which contains detailed provisions regarding the appearance and consequences of absent parties. At a glance, it seems that this provision, if followed, provides adequate safeguards regarding the ‘adjournment’ culture that pervades litigation at all levels of the court hierarchy4. The final report of the 8th Judicial Conference recently held in

1OSAMA SIDDIQUI, AN ALIEN JUSTICE: PAKISTAN’S EXPERIENCE WITH FORMAL LAW (Cambridge: Cambridge University Press) (1st ed. 2013). 2Id., at 121. 3JUSTICE (R) FAZAL KARIM, ACCESS TO JUSTICE IN PAKISTAN, 363 (Lahore: Pakistan Law House) (1st ed. 2003). 4The number of pending case was estimated at 1.7 million in 2015: Rizwan Shehzad, How Adjournments Adjourn Justice, The Express Tribune, 26 October 2015, https://tribune.com.pk/story/979052/how-adjournments-adjourn-justice. By early 2018 the number had reached 2 million: ‘as per the latest statistics of the Law and Justice Commission of Pakistan (LJCP), there are 38,539 cases pending with the SC, 293,947 with the five high courts and 1,869,886 cases with the subordinate judiciary of the four provinces and the federal capital’. Malik Asad, Over 1.8

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Islamabad seems to sing to the same tune when it made the following suggestions: ‘Judges must actively avail the powers granted to them under various laws to curb delays. For example, the maximum duration of stay orders, or the submission of documents within a given time period, must be strictly followed. Frivolous applications and appeals should be disposed at the earliest opportunity and strongly discouraged’.5 A belief in the people of the country that the courts will not give them justice within a reasonable amount of time will have negative consequences for the overall legal system. As Justice Fazal Karim puts it, the loss of faith in the civil justice system has led to the complete lack of tortious litigation in the country.6 Faith in the judiciary is evoked in the people through the realization of effective, speedy and just remedies. One possible method to minimize the constant delays in litigation is to implement a more effective system of case management. The United Kingdom was able to implement such a mechanism after the 1995 ‘Access to Justice Report’ prepared by Lord Woolf. The emphasis of the report lay in the nature of the adversarial system of litigation that is prominent in common law jurisdictions and its problems in creating delay. This system allows lawyers to dictate the pace of litigation in courts. The solutions proposed by Lord Woolf involved, inter alia, giving a more interventionist role to the courts. The courts would assess the nature of each case and then arrange a schedule of litigation accordingly. The Lahore High Court can work towards such a reform agenda, given that under Article 202 of the it can make rules regulating its own practice and procedure, as well as any court subordinate to it. The Access to Justice Inquiry led Lord Woolf to realize that certain ‘codes of practice’ were needed for ‘pre-action conduct…for common types of disputes that were often low value but which were frequently litigated.’7 These codes of practice would become Lord Woolf’s ‘Pre-Action Protocols’. The chief objective of these protocols was to act as catalysts for the early exchange of information about the claims being disputed in court and encouraging the parties to move towards Alternative Dispute Resolution million Cases Pending in Pakistan’s Courts, The Dawn, 21 Jan 2018, https://www.dawn.com/news/1384319. 5Law and Justice Commission of Pakistan, 8th Judicial Conference, Islamabad, 5-6 May 2018, Press Release, Group III, Page 2, Point 6, http://ljcp.gov.pk/nljcp/ assets/dist/news_pdf/f0ec2-ljcp-islamabad-declaration-dated-5th-of-may.pdf 6Id. 7THE WHITE BOOK SERVICE, CIVIL PROCEDURE, I (London: Sweet and Maxwell) (2012) 2563. 184 Pakistan Law Review [Vol: IX

(ADR). The eventual aim of the protocols is to make litigation in court a matter of last resort. According to Lord Woolf the pre-action protocols ‘are intended to build on and increase the benefits of early but well-informed settlements which genuinely satisfy both parties to disputes.’8 How is this to be achieved? One method is that parties are expected to ‘explore alternatives to court proceedings and settlement thoroughly’9 before initiating proceedings in court. Courts have the power to dismiss proceedings ‘if a more appropriate means of resolving the dispute is available’.10 Most importantly, the courts are expected to work towards ‘defining and narrowing the issues before proceedings are issued so that the case can be allocated to a ‘track’, a timetable set for the disclosure of evidence and the trial at an early case management stage’.11 The reference to a ‘track’ is interesting here. The Reforms envision different ‘tracks’ for different cases, and this is something in the control of the judiciary. Cases categorized as ‘small claims’ will mean that these cases will be allocated to a track where the full formalities of a formal trial are not required, and hence, faster resolution is available. Similarly, certain cases are allocated to the ‘Fast Track’ which has a set time-limit for trial (no more than 30 weeks). The pre-action protocols are thus a fascinating way of dealing with litigation. Essentially, they look at the conduct of the parties before litigation even begins. This conduct is then used as a reference point by the court during the case, as well as, when it is giving its final decision. Thus, for example, the pre-trial conduct of the parties can have a direct effect on the eventual cost award given by the court in its final judgment on the matter. The Civil Procedure Rules of the United Kingdom state in Part 3 (The Court’s Case Management Powers), that the court, when giving a direction in a case may take into account whether or not a party has failed to comply with a pre-action protocol.12 Furthermore, a court may order a party to pay a sum of money into court if a party has, without good reason, failed to comply with a rule, practice direction or a relevant pre-action protocol.13

8Id. at 2563-65. 9Id. 10Id. 11Id. 12Id. 13Id. 2018] The Lahore High Court of the Future 185

The Lahore High Court can also look to control the pace of litigation ‘by establishing meaningful events, setting scheduled dates and time frames’.14 Especially with regards to matters that occur prior to trial. One proposal to accomplish this would be for the Lahore High Court to implement the pre-action protocols that Lord Woolf proposed, and which are in play in the United Kingdom. The protocols seem to have been a success with an 80% drop in litigation after they came into being.15 It is also encouraging to see that something at the Government level is moving in this direction. At the end of the latest Judicial Conference, organised by the Law and Justice Commission of Pakistan, it was recommended that: ‘An effective Alternative Dispute Resolution (ADR) mechanism be instituted: ADR should be made a compulsory part of the dispute resolution process and should be enforced through effective legislation and encouraged by the courts. It is also important for the parties to follow Pre-Action Protocols/Pre-trial procedures, by meeting beforehand in an attempt to settle their issues, before bringing their case to the court. As a whole there is a need for an effective ADR program to reduce the burden of litigation from courts’.16 On a similar note, the conference further calls for a curbing on frivolous adjournments: ‘Unnecessary adjournments sought by counsel should be discouraged. Adjournments should only be allowed in exceptional circumstances. There is, furthermore, a dire need for reduction of strikes in the courts. It is of utmost importance that the communication between the Bar Councils and Bar Associations is enhanced so that neither unnecessary adjournments are sought nor granted by the courts’.17 Another change advocated at the end of the Conference is that: ‘a Case Management System be introduced in order to keep track of cases that as a consequence will help in reducing backlog by speedy disposition of cases’18. While such methods of case management will undoubtedly be a great step forward for the Lahore High Court, any proposal for reform must not exist in isolation. Input on reforms needs to come from people other than

14Raza Ullah Shah, Shadi Ullah Khan & Sumera Farid, Causes for Delay in Civil Justice in Lowers Courts of Pakistan: A Review, 6 Pakistan Journal of Criminology 47, 52 (2014). 15The White Book, supra note 15. 16Law and Justice Commission of Pakistan, supra note 5, Group III, Page 2, Point 2. 17Id. at Page 2, Point 3. 18Id. at Page 2, Point 4. 186 Pakistan Law Review [Vol: IX

those in the legal profession. As Professor Siddiqui points out, due to their particular ethos, perspective, and training: ‘the reform proposals from the legal community concentrate overwhelmingly on reforming the judiciary and the court system by increasing the number of judges or staff of the judiciary’.19 However any reform agenda must take into consideration the myriad social, economic, cultural and political constraints20 that affect people in this country. The entire crux, after all, of giving the Lahore High Court the power to make changes to the procedural codes was so that it could indulge in contextual assessments of different areas of the Province and make amendments accordingly. So, if certain areas of Punjab face different or unique problems regarding litigation, these issues need to be taken into consideration by the Lahore High Court in its reforms. We must understand the present to make a better future.

II. DIVERSITY

At present, the Lahore High Court has two female judges.21 In March 2016 it removed its only Christian judge from the bench. Without entering into the merit of the removal, it is appropriate to note here that as of right now, the Lahore High Court is made up of no non-Muslim judges. This lack of diversity should concern us, because on a general level diversity is an important asset to virtually all institutions and agencies. ‘It affects the direction and effectiveness of any organization by encouraging richer debates and more thoughtful reflection and discussions within the organization. Diversity facilitates the expansion of an organization’s agenda and broadens its perspective.’22 As Justice Powell stated: ‘People do not learn very much when they are surrounded only by the likes of themselves.’23 An exchange of ideas

19SIDDIQUI, supra note 1, at 433. 20Id. 21The Lahore High Court, http://data.lhc.gov.pk/judges/sitting_judges/40 (Data as per record on 14th Sep, 2018). 22Edward M. Chen, The Judiciary, Diversity, and Justice for All, 10 Asian Am L.J. 127. 23Regents of the University of California v. Bakke, 438 U.S. 265, 312 (1978). 2018] The Lahore High Court of the Future 187

within the judiciary with more women, and more members of religious minorities can only enhance the discourse within it. When we want to think about the Lahore High Court of the future, we want to think about an inclusive and diverse group of people, who bring the pluralism envisioned in the Constitution on full display24. More representation of women in the judiciary will evoke a sense of trust within the women of Punjab that their concerns will not only be heard but will also be understood. Nobody would doubt how the debate on the rights of women was enriched in the United States when Justice Ruth Bader Ginsburg joined the Supreme Court, and when it comes to the rights of minorities, no one would deny the extent to which the cause for African American rights found its champion (especially in the context of voting rights) in the person of Justice Thurgood Marshall. In a tribute to Justice Marshall, Justice O’Connor25, ‘recounted Justice Marshall’s fondness for sharing personal stories with the other justices in conference in order to emphasize legal points, including stories about Ku Klux Klan violence, jury points, defending an innocent African American wrongly convicted of rape and sentenced to death, and the many indignities of racial segregation he personally had endured’.26 Wouldn’t the Lahore High Court of the future equally benefit by having such individuals on the bench? The lack of representation in the judiciary of minority groups can have drastic detrimental effects such as the perpetuation of stereotypes ‘continuing the myth that certain groups are inherently incapable of attaining certain accomplishments or performing certain jobs’.27 Diversity seeks to counteract such stereotypes. It provides role models28 for those who have been historically underrepresented in society. Furthermore, a diverse judiciary will enhance the quality of judicial decision making.29 ‘In addition to analysing and applying the law, judges have to make determinations that draw not so much upon legal acumen, but on an understanding of people and of human experiences.’30 Since the Lahore High Court appoints the judges of the lower judiciary, a diverse High Court will lead to a diverse

24Preamble, Art. 4, 25, 26, 27, 28; Constitution of Pakistan, 1973 and successive Amendments. 25Sandra Day O’Connor, Thurgood Marshall: The Influence of a Raconteur, 44 Stan. L. Rev. 1218-1219 (1992). 26Edward M. Chen, The Judiciary, Diversity, and Justice for All, 10 Asian Am L.J. 127. 27Id at 134. 28Id. 29Id at 135. 30Id. 188 Pakistan Law Review [Vol: IX

lower judiciary. The diversity within the lower judiciary will lead to judges using their practical knowledge and experience at trial and in evidence, for example, in assessing a witness’s testimony. Whichever way one looks at things, race, culture, religion, and gender do matter. They matter because they shape our way of looking at our life and our identity. If members of the public do not see people who are remotely close to their identity in public office, they slowly lose faith in that office. People thus need to see their shared identity in the Lahore High Court, otherwise they will lose faith in the court.31 This is the last thing that the judiciary of our country would want. Life experiences are shaped by a person’s race, culture, religion and gender. So is their perception of the world around them, along with their ideas. These aspects of life are vital to the shaping of personality. and the creation of individuality. It would be absurd for a judiciary, priding itself for upholding constitutional values of inclusiveness, to be blind to these ingredients in determining its own composition. All of these factors lead to the conclusion that the Lahore High Court of the future must be far more diverse than it is now. This is vital for the enhancement of its decision making, for developing more confidence in the underrepresented in Punjab. Furthermore, it will lead to a more diverse lower judiciary that will be able to use its varying life experiences to better adjudicate cases. This would allow the Lahore High Court of the future to be one of the best judicial institutions in the country.

31The author made a similar point in an Op-Ed piece published in the Express Tribune regarding the lack of representation of women in the legal fraternity. Hassan Niazi, The Lone Star, The Express Tribune, 15 February 2018, https://tribune.com.pk/story/1634991/6-the-lone-star/. In a separate piece, similar views were expressed by the author regarding representation of religious minorities. Hassan Niazi, Apartheid, The Express Tribune, 15 February 2018, https://tribune.com.pk/story/1634991/6-the-lone-star/. 2018] The Lahore High Court of the Future 189

III. DISSENT

Some of the greatest principles that courts lay down have their origins in disagreement. In 1919, the Supreme Court of the United States in Abrams v. United States32 held that leaflets that were being distributed in New York City supporting Russia and calling on workers to unite in a general strike was conduct punishable under the Espionage Act. Oliver Wendell Holmes in dissent would sow the seeds for the ‘clear and present danger’ test in American free speech jurisprudence. However, his dissent also laid out an almost immortal metaphor for free speech. Holmes believed, in his dissenting opinion, that the best test of truth was for it to get itself accepted in the competitive ‘marketplace of ideas.’ Today the ‘marketplace of ideas’ metaphor is one of the most popular phrases used to justify the value of having free speech and has been widely accepted in many free speech cases.33 As Professor Cohen puts it: If there is a more relevant or powerful passage in American law, I am not aware of it. Relevant, because it expressed a universal concept - free trade in ideas - that 125 years after the Constitution was ratified still had not yet taken hold in our democracy. Powerful, because it went beyond legal precepts to a fundamental fact of human existence: We all make mistakes. We all have good opinions and bad ones. None of us are right all the time. All of us at one point or another have to respect what someone else says. And life is an experiment from the moment we wake in the morning until the moment we lay our heads down at night.34 There is power in a dissenting voice; it is after all, one of the pillars of a democratic system-the individual able to criticize the voice of majority in government. Furthermore, the judiciary isn’t just there to decide cases for

32Abrams v. United States, 250 U.S. 616 (1919). 33See American Booksellers Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985) affirmed in 475 U.S. 1001 (1986); Justice White concurring in R.A.V. v. St. Paul, 505 U.S. 377 (1992); Chief Justice Rehnquist dissenting in Texas v. Johnson, 491 U.S. 397 (1989); Justice Brennan dissenting in FCC v. Pacifica Foundation, 438 U.S. 726 (1978). 34Andrew Cohen, The Most Powerful Dissent in American History, The Atlantic, 10 Aug. 2013, https://www.theatlantic.com/national/archive/2013/08/the-most-power ful-dissent-in-american-history/278503/. 190 Pakistan Law Review [Vol: IX

us, it is also there to inform us about the law, the logic and rationale behind its decisions. Openness is important, as it allows us to examine the basis for judicial determinations. By analysing that basis, we are educated or satiated as to the logic of a decision. However, if we believe in what Holmes was getting at when he talked about the ‘marketplace of ideas,’ then true education cannot be achieved without being open to listening to the other side of the debate. This is true for judges and lawyers just as much as it is true for any other individual or calling. It is legitimate to ask here: where are the great dissenting opinions of the Lahore High Court? The ones that stir the soul and make citizens realize, perhaps years later, that a wrong turn was taken in the past. It seems like barely anyone dissents in the Lahore High Court. Of course, the Lahore High Court is not alone when it comes to this. The Supreme Court of Pakistan, barring a few great exceptions,35 is nowhere near the freedom to dissent prevalent in the United States or the United Kingdom. Although numerous Division Benches and Full Benches hear cases every other day in the Lahore High Court, the pesky concept of seniority seems to prevent many judges from writing their opposing views in dissent. Yet, by their abstaining from doing so, the citizens of this country are being robbed of a rich jurisprudence. We are being robbed of being able to see that the courts can take criticism from within, and it is not true that the one with the most years on the court can keep others silent. That is not how the Lahore High Court of the future should function. ‘The practice of dissent is…a sign of strength. The [Supreme Court of the United States] preferred unanimous opinions in its early days because its authority was not yet established, and it sought to present a united front. Only as the court gained confidence (and as the country gained confidence in the court) did the number of dissents grow.’36 Dissents, not only inform, but they also help polish the majority view. As Justice Ruth Bader Ginsburg said about the late Justice Antonin Scalia: ‘We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better

35E.g., Justice A.R. Cornelius’ dissenting opinion in Molvi Tamizuddin Khan v Federation of Pakistan, PLD 1955 Federal Court 240; Justice M. Munir CJ’s dissent in Jibendra Kishore Achharyya Chowdhury v The Province of East Pakistan, PLD 1957 SC (Pak) 9. 36David Cole, The Power of a Supreme Court dissent, The Washington Post, 29 Oct. 2015, https://www.washingtonpost.com/opinions/the-power-of-a-supreme-court- dissent/2015/10/29/fbc80acc-66cb-11e5-8325-a42b5a459b1e_story.html?noredi rect=on&utm_term=.b677340ca677. 2018] The Lahore High Court of the Future 191

than my initial circulation.’37 The Lahore High Court of the future can only be better for encouraging the writing of dissenting opinions. As Professor David Cole writes, ‘majority opinions are exercises in power; dissents are appeals to our better judgment. The majority prevails, but the dissenter’s role is by far the more romantic; it is the work of the individual who, on principle, stands against the crowd.’38 The Lahore High Court judges of the future must be encouraged to write dissenting opinions where they are warranted. Of course, this does not mean that certain judges should have a license to insult others as that is an extreme view. But if for nothing else, it might just make the judges of the Lahore High Court enjoy the craft of judicial writing, as Justice William Douglas put it, ‘the right to dissent is the only thing that makes life tolerable for a judge on an appellate court.’39

IV. TECHNOLOGY

Technology is no longer the future, it is the present. No vision of the Lahore High Court of the future can exist without considering the fact that it must make use of growing technology. Currently, the Lahore High Court is suffering from an incredible lack of technological resources. The judges of the Lahore High Court suffer from a tremendous load of cases; many being fixed after long delays. Yet, there are no records of oral transcripts being prepared for the judges that they could review to save themselves and litigants time. Furthermore, with the growing concern with the environment, it is much easier and reasonable for court records to be stored electronically instead of masses of paper documents being stored by the courts. A system of filing documents before the court through electronic filing mechanisms is not an impossibility, it may become a necessity in the future.

37Elisha Fieldstadt & Pete Williams, Justice Ruth Bader Ginsburg on Justice Antonin Scalia: ‘We Were Best Buddies’, NBC News, 14 Feb. 2016, https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antoni n-scalia-we-were-best-n518671. 38David Cole, supra note 36. 39Id. 192 Pakistan Law Review [Vol: IX

Some of the steps currently being taken around the world in this regard include ‘the introduction of electronic systems for sharing of case documents and access to evidence and bundles’.40 This will require further training of staff to handle such systems. ‘The increasingly complex world of electronic records management requires new skills and approaches to maintaining and preserving court records. This includes greater attention to quality controls; the adoption of standards; assessment of organization capabilities; and, most of all, an approach that is both enterprise-wide and collaborative.’41 The use of technology can also tie in directly with case management. Thus, for example, ‘improved data on case types, length, and delay drivers such as complexity (volume of evidence, number of parties and so on) will enable courts to plan their resources more smartly for future caseloads’.42 A report by a working group of the independent Civil Justice Council in the United Kingdom proposed the setting up of an Online Dispute Resolution platform. The recommendation was that the online portal would first allow for evaluation of a case with the aim of avoiding disputes.43 In its second stage, ‘Online Facilitators’ would ‘bring a dispute to a speedy and fair conclusion without the involvement of judges. Trained facilitators will communicate with the user over the internet, reviewing papers and statements and helping the parties through mediation and negotiation.’44 The report acknowledged that the idea may seem radical, ‘but at a time when an affordable court service and access to justice is ‘under severe threat’ it asks lawyers and judges to ‘keep an open mind’ and ‘embrace a new mind-set’.’45 Furthermore, the report pointed out that it was not dealing with science fiction. It cites a ‘number of established online dispute resolution methods, including that used by eBay, which resolves around 60m disagreements among traders each year’.46 The world is moving towards such mechanisms, and examples of online dispute resolution are all around us. For example, the Canadian Civil

40Thomson Reuters, The Future of the Courts, A White Paper, available at http://static.legalsolutions.thomsonreuters.com/static/pdf/the-future-of-the-courts- whitepaper.pdf. 41Id. 42Id. 43Catherine Baksi, The Court of the Future is Online, Solicitors Journal, 16th Feb, 2015, http://solicitorsjournal.cyberduck.net/news/management/technology/court- future-online. 44Id. 45Id. 46Id. 2018] The Lahore High Court of the Future 193

Resolution Tribunal which is an online tribunal which provides an alternative ‘pathway to the traditional courts for resolving small claims’47 and deals with claims under 25,000 Canadian dollars.48 Similarly, the United Kingdom has a ‘Traffic Penalty Tribunal’49 which provides an online portal which ‘enables appellants to appeal, upload evidence and follow cases and hearings under one evidence screen and account. Likewise, each authority has a dashboard showing current cases, enabling them to submit evidence, comment, and follow progress of hearings and decisions.’50 The 8th Judicial Conference recommendations do not ignore the need to use modern technology to address the issue Pakistani courts are confronted with. Its final report considers ‘imperative that the use of information technology is implemented in different aspects of our justice system, in areas such as registration of electronic FIR, electronic record of case documents, case scheduling and judgments’.51

V. LOOKING TO THE FUTURE

It is said that the best way to predict the future is to create it. The Lahore High Court has that opportunity in its hands-especially since it was recently headed by Chief Justice Mansoor Ali Shah who was showing great initiative to create change in the court. Case management and the use of technology are vital aspects that need to be looked at to create true change in the court’s work. Furthermore, the Lahore High Court has the power under the Constitution to make certain changes to the procedural codes. It should thus look to using this power by learning from the best features of the

47Civil Justice Council, Online Dispute Resolution for low value claims, available at https://www.judiciary.gov.uk/wp-content/uploads/2015/02/Online-Dispute-Reso lution-Final-Web-Version.pdf. 48Id. 49See http://www.trafficpenaltytribunal.gov.uk. 50Civil Justice Council, Online Dispute Resolution for low value civil claims, Feb 2015, 16, available at https://www.judiciary.gov.uk/wp-content/uploads/2015/02/ Online-Dispute-Resolution-Final-Web-Version.pdf. 51Law and Justice Commission of Pakistan, supra, Group III, Page 2, Point 5. 194 Pakistan Law Review [Vol: IX

reforms being undertaken in other common law systems, like the United Kingdom, while still being mindful of the concerns raised by Professor Siddiqui i.e. that it should not drift too far from our country’s context. Neither should the reform agenda be monopolized by those in legal practice. The more ideas that are presented from different backgrounds, the better. Furthermore, the Lahore High Court of the future needs to diversify its ranks. It needs more diversity in gender, religion, ethnicity, culture and race. So many courts in the world are criticized for being monopolized by old, elite men in robes. The Lahore High Court should strive to become something better than this, something stronger. Not only will diversity give a better image of the court to the people of this country, but it will benefit the court itself through a richer exchange of ideas in both the Lahore High Court, as well as, the lower judiciary. This rich exchange of ideas can be enhanced by the encouragement of dissenting opinions by the Lahore High Court. Dissent helps educate and polish a legal system’s jurisprudence and also portrays an image of the Lahore High Court that is open-minded and brimming with ideas. It is a testament to the power of argument and the fallibility of human logic. It allows for the judiciary to let an idea eventually ripen without the specter of precedent hanging over it. While the final document of the 8th Judicial Conference is a ray of hope that something is being done to initiate work towards such a future, it is clear that there is much more that can be done as there is much that the future holds. Yet, with the implementation of some of these ideas the citizens of Pakistan can look at the Lahore High Court of the future with hope for a better system, a better institution and above all a better avenue of justice.

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BIBLIOGRAPHY

PRIMARY SOURCES

LEGISLATION

1. Constitution of Pakistan, 1973

CASES

Pakistan

2. Jibendra Kishore Achharyya Chowdhury v The Province of East Pakistan, PLD 1957 SC (Pak) 9. 3. Molvi Tamizuddin Khan v Federation of Pakistan, PLD 1955 Federal Court 240

United States

4. Abrams v. United States, 250 U.S. 616 (1919) 5. Ass’n v. Hudnut, 771 F.2d 323 (7th Cir. 1985) 6. FCC v. Pacifica Foundation, 438 U.S. 726 (1978) 7. R.A.V. v. St. Paul, 505 U.S. 377 (1992) 8. Regents of the University of California v. Bakke, 438 U.S. 265, 312 (1978) 9. Texas v. Johnson, 491 U.S. 397 (1989)

SECONDARY SOURCES

BOOKS

10. JUSTICE (R) FAZAL KARIM, ACCESS TO JUSTICE IN PAKISTAN, (Lahore: Pakistan Law House) (1st ed. 2003) 11. OSAMA SIDDIQUI, AN ALIEN JUSTICE: PAKISTAN’S EXPERIENCE WITH FORMAL LAW (Cambridge: Cambridge University Press) (1st ed. 2013). 12. THE WHITE BOOK SERVICE, CIVIL PROCEDURE, I, (London: Sweet and Maxwell) (2012)

196 Pakistan Law Review [Vol: IX

ARTICLES FROM JOURNALS

13. Edward M. Chen, The Judiciary, Diversity, and Justice for All, 10 Asian Am L.J. 127 14. Raza Ullah Shah, Shadi Ullah Khan & Sumera Farid, Causes for Delay in Civil Justice in Lowers Courts of Pakistan: A Review, 6 Pakistan Journal of Criminology 47 (2014) 15. Sandra Day O’Connor, Thurgood Marshall: The Influence of a Raconteur, 44 Stan. L. Rev. 1218 (1992)

ARTICLES FROM NEWSPAPERS AND OTHER ONLINE SOURCES

16. Andrew Cohen, The Most Powerful Dissent in American History, The Atlantic, 10 Aug. 2013, https://www.theatlantic.com/national /archive/2013/08/the-most-powerful-dissent-in-american-history/27 8503/ 17. Catherine Baksi, The Court of the Future is Online, Solicitors Journal, 16 Feb. 2015, http://solicitorsjournal.cyberduck.net/news/ management/technology/court-future-online 18. Civil Justice Council, Online Dispute Resolution for low value claims, https://www.judiciary.gov.uk/wpcontent/uploads/2015/02/ Online-Dispute-Resolution-Final-Web-Version.pdf 19. David Cole, The Power of a Supreme Court dissent, The Washington Post, 29 Oct. 2015, https://www.washingtonpost.com/ opinions/the-power-of-a-supreme-court-dissent/2015/10/29/fbc80ac c-66cb-11e5-8325-a42b5a459b1e_story.html?noredirect=on&utm_t erm=.b677340ca677 20. Hassan Niazi, The Lone Star, The Express Tribune, 15 February 2018, https://tribune.com.pk/story/1634991/6-the-lone-star/. 21. Hassan Niazi, Apartheid, The Express Tribune, 15 February 2018, https://tribune.com.pk/story/1634991/6-the-lone-star/. 22. Elisha Fieldstadt & Pete Williams, Justice Ruth Bader Ginsburg on Justice Antonin Scalia: ‘We Were Best Buddies’, NBC News, 14 Feb. 2016, https://www.nbcnews.com/news/us-news/justice-ruth- bader-ginsburg-justice-ant onin-scalia-we-were-best-n518671 23. Law and Justice Commission of Pakistan, 8th Judicial Conference, Islamabad, 5-6 May 2018, Press Release, http://ljcp.gov.pk/nljcp/ assets/dist/news_pdf/f0ec2-ljcp-islamabad-declaration-dated-5th-of- may.pdf 24. Malik Asad, Over 1.8 million Cases Pending in Pakistan’s Courts, The Dawn, 21 Jan. 2018, https://www.dawn.com/news/1384319 2018] The Lahore High Court of the Future 197

25. Rizwan Shehzad, How Adjournments Adjourn Justice, The Express Tribune, 26 October 2015, https://tribune.com.pk/story/979052/ how-adjournments-adjourn-justice/ 26. The Lahore High Court, Sitting Judges, October 2018, http://data.lhc.gov.pk/judges/sitting_judges/40 27. Thomson Reuters, The Future of the Courts, A White Paper, available at http://static.legalsolutions.thomsonreuters.com/static/ pdf/the-future-of-the-courts-whitepaper.pdf