Ad hoc Law Reform Commissions
The First Law Commission was constituted in 1834. It comprised of four members, namely, Mr. Lord Macaulay, Mr. J. M. Macleod, Mr. G. M. Anderson and Mr. F. Millet. The Commission was asked to enquire into the existing jurisdiction and powers of the courts, judicial procedure, functioning of police establishment and operation of civil and criminal law, both written and customary, and suggest appropriate reforms thereof, keeping in view the distinction of caste and creed. The Commission commenced work on drafting a uniform penal code for British India but its draft could not be enacted immediately. Due to various legal/customary systems in operation in different parts of India, the Commission recommended that part of the prevalent substantive law of England be applied to British India, subject to certain restrictions and safeguards namely, that only such law of England be made applicable as suited the situation of the people and was not inconsistent with the Indian statutes. The Commission further recommended that the rule of equity should take precedence over the rules of English law. The recommendations of the Commission however, were not received favourably by the public, hence were not adopted. The principal achievement of the however was the approval of its draft Caste Disabilities Removal Act 1850 by the Government. The Act provided that renunciation of a religion by a person shall not entail the loss of right to property.
The Charter Act 1853 provided for the Second Law Commission comprising of Sir John Romilly, Master of the Rolls, Sir John Jervis, Sir Edward Ryan, R. Lowe (afterwards Lord Sherbrook), C. H. Cameron, John. M. Macleod and T. F. Ellis. The Commission was asked to review the recommendations of the First Law Commission, and further make suggestions for reforming the procedural law and examine the question of amalgamation of the Supreme Court and Sadar Courts in the Presidency-towns. The Commission recommended that some uniform substantive civil law may be enacted on the pattern of Law of England but having due regard to local conditions. The Commission further suggested the amalgamation of Supreme Court and Sadar Courts in the Presidency-towns. The Commission also recommended a uniform procedure applicable to all courts in British India. Following the recommendations of the Commission and the drastic political changes in 1857 (Crown substituting the East India Company), the Government introduced certain important law codes i.e. Code of Civil Procedure 1859, Limitation Act 1859, Penal Code 1860 and Criminal Procedure Code 1861. The Government further accepted the recommendations of the Commission in respect of the amalgamation of the Supreme Court and Sadar Courts by enacting the Indian High Court Act 1861.
In 1861, the Government appointed the Third Law Commission to enact a uniform civil law for British India. Initially, the Commission comprised of Sir John Romilly, Master of the Rolls, Sir. W. Erle, Chief Justice of Common Pleas, Sir Edward Ryan, Mr. Robert Lowe (Lord Sherbrook), Mr. Justice Willes and Mr. J. M. Macleod. The membership however subsequently changed. The Commission submitted several reports to the Government. In the first Report the Commission proposed the adaptation of the Indian Succession Act 1885, which with minor modifications was adopted by the legislature. Thereafter, the Commission submitted 6 more reports in the area of law of contract, law of negotiable instruments, law relating to specific performance, law of evidence, law of transfer of property and certain amendments to the Criminal Procedure Code. The implementation process was however, slow and the members were dissatisfied with attitude of the Government. Thus, in 1870, they resigned.
Notwithstanding the resignations of members of the Third Law Commission, the process of codification of laws continued and two important codes were enacted, namely, Contract Act and Evidence Act.
The Fourth Law Commission was constituted in 1879 and comprised of Dr. Whitley Stockes, Sir Charles Turner, the then Chief Justice of Madras, and Mr. Rayward West, a Judge of the Bombay High Court. The Commission was asked to consider various bills relating to law of trusts, easements, alluvion and diluvian, master and servant, negotiable instruments and transfer of immovable property. The Commission made important recommendations to the Government in the above-mentioned areas of law reform and as a result, the Government enacted the Negotiable Instrument Act and codes relating to trusts, transfer of property and easements. The Government further revised the codes relating to companies, civil procedure and criminal procedure. The important observations of the Commission was that the process of codification in British India should be broadly on the pattern of English Law but with necessary modifications, suited the local conditions and circumstances, keeping in view the Indian law, local customs and traditions.
After the promulgation of Indian Act 1919, certain important changes were introduced to the system of administration in the country. In 1921 the Government appointed the Statute Law Revision Committee with a mandate to prepare bills for consolidation and modification of law in the area of succession and merchant shipping. The Committee was headed by President of the Council of State namely, Honourable Sir Henry Monerieff Smith and Sir Alexander Muddiman, who had been the President of the Council of State in 1925 and 1930 respectively. The Committee ceased to function following the retirement of the second President in 1932.
The Government constituted the Civil Justices Committee in 1923 to suggest measures for eliminating delays in disposal of civil suits. The Committee was headed by Justice George Clause Rankin, then a Judge of the High Court of Judicature at Fort William in Bengal. The Committee submitted its report in 1925 and the Government implemented some of its recommendations through amendments in the Code of Civil Procedure and the High Court Rules.
Commission on Marriage and Family Law 1956:
In 1956, the Government of Pakistan constituted the Commission on Marriage and Family Laws to suggest suitable reform thereto. The Commission was headed by Mr. Justice Abdul Rashid, former Chief Justice of Pakistan and comprised of Dr. Khalifa Shuja-ud-Din, Dr. Khalifa Abdul Hakim, Maulana Itehsham-ul-Haq, Enayat-ur-Rehman, Begum Shahnawaz, Begum Anwar G. Ahmad and Begum Shamsunnihar Mahmood, as members. The Commission submitted its report in 1958 by suggesting various reforms to the existing laws governing marriage, divorce and provision of inheritance to the orphaned grandchildren. The recommendations were duly incorporated through the adoption of the Muslim Family Law Ordinance 1961.
After the formation of one Unit called West Pakistan, the Government appointed a Commission headed by Justice Sheikh Abdul Hamid of the West Pakistan High Court to examine the judicial system, prevailing in Quetta and Kalat Divisions, so as to bring it inconformity with the rest of the country. The Commission recommended that there should be one regular system of laws for the territories of Quetta and Kalat Divisions, on the pattern of laws prevalent in other parts of the Province. The Commission further recommended that Special Areas in the two Divisions should be abolished, but if for some reasons it is not possible, then the jurisdiction of the High Court and Supreme Court should be extended to these Areas. The recommendations were however, not accepted by the Government.
The Government set up the Law Reform Commission of 1958 under the Chairmanship of Mr. Justice S. A. Rahman, then a Judge of the Supreme Court of Pakistan. The terms of reference were quite comprehensive including subjects like the hierarchy of courts and their powers, judicial appointments, improvement of legal education as well as legal profession, reform of civil law, criminal law, and law of evidence. The Commission submitted its report in 1959. The recommendations provided for appropriate amendments in the Code of Civil Procedure and the Registration Act. Some such recommendations were enacted through amendments in 1962 in the Code of Civil Procedure however, such changes were did not receive favourable response from the litigants public as well as members of the bench and the bar, and consequently the Government constituted a Committee to reexamine the said amendments, and on the recommendations of the said Committee, most of the amendments were withdrawn in 1962. Some of its recommendations in the Criminal Procedure Code were carried out. An important observation of the Commission was that radical changes were not desirable in the existing judicial system because the people by and large had become accustomed to the technicalities to the existing procedure, followed by the courts.
In 1967, the Government set up another Law Reform Commission with a mandate to examine the prevailing legal and judicial systems of the country and submit appropriate recommendations for eliminating delays in litigations. Justice Hamood-ur-Rehman, then a Judge of the Supreme Court of Pakistan who later on became its Chief Justice, headed the Commission. The Commission completed its assignment in 1970 and submitted a fairly comprehensive report to the Government. The Commission listed its recommendation under three categories, namely, recommendations for amendment in statutes, strict application of existing laws/rules and the administrative action involving financial expenditure on recruitment of additional judicial officers, ministerial staff and provision of adequate facilities such as court-rooms, libraries and equipment to courts. Most of its recommendations pertaining to reform of civil and criminal laws were accepted and implemented, however, Its recommendations pertaining to increase in number of judicial officers and provision of appropriate facilities to courts were ignored.
This High Powered Law Reform Committee was set up in 1974. It was headed by the then Law Minister and included the Attorney General for Pakistan, a Judge of the Supreme Court, Chief Justices of the High Courts and the Law Secretary. This Committee gave its recommendations with respect to increase in the number of judges, provision of adequate number of court rooms and proper accommodation to judicial officers and improvement in the working of investigation and prosecution agencies.
This Committee constituted under the Chairmanship of Mr. Justice S. Anwarul Haq, the Chief Justice of Pakistan, included the Attorney General for Pakistan and the 4 Chief Justices of the High Courts as members. It suggested recommendations for speedy disposal of litigation and for this purpose recommended, inter alia, increase in the number of judicial officers, provision of adequate number of court rooms and accommodation for judges, provision of adequate ministerial staff and stationary to courts and facilities for the training of judicial officers. Its recommendations requiring legislative action were accepted and implemented through an Ordinance (i.e. Ordinance X of 1980). However, its suggestions with regard to increase in number of judicial officers, provision of courtrooms and accommodation for judicial officers, etc were ignored.
This Committee comprising of the Secretaries of Cabinet Division, Interior Division, Law and Justice Division and Finance Division was set up in 1978 to examine the recommendations of the earlier Law Committees for recommending measures for speedy disposal of litigation. The Committee scrutinized such reports and submitted in its report in 1979, wherein it generally approved the earlier recommendations of various committees.
A four Members Committee headed by Justice (Retd) Salahuddin Ahmed and comprising of three other members was set up in 1980 and was asked to formulate proposals for simplifying the present legal procedures, law of evidence and other allied matters to bring these inconsonance with the injunction of Islam. The Committee suggested various proposals for reform of the civil justice system. It emphasized on the need for imparting training to judges and the provision of due facilities to courts. The Committee further suggested some structural changes to the system of administration of justice including inter alia that the present adversary system should be replaced by amicus curia system, courts discretion in matters of frequent adjournments and remand of cases be curtailed, alternative means of disputes resolution be adopted, judgment should be announced immediately after conclusion of hearing and should be brief, etc.
The Pakistan Women’s Rights Committee was set up in 1976. It was headed by the then Attorney General of Pakistan and comprised of 13 other members. The Committee was asked to examine the laws in respect of women and suggest appropriate amendments thereto, so as to enhance their status in the society. It submitted its report the same year and recommended several reformative measures through legislative and administrative measures for eliminating discriminatory legal provisions and harmful customary practices. Soon after the presentation of the report, there occurred a change of Government; hence its recommendations were not implemented.
The Government constituted in 1983, the Commission on the Status of Women, headed by Begum Zari Sarfraz and comprising of 15 other members. The Commission was asked to make suggestions for effective safeguards of women rights and to suggest ways and means for improving their prospects in acquiring education, health care and employment. The Commission presented a fairly comprehensive report in 1985 suggesting inter alia several legislative steps and administrative measures, so as to reintegrate women in the main stream of national life.
This Commission was headed by the Chief Justice of Pakistan and comprised of the 4 Chief Justices of the High Courts. It was assigned the task of recommending provision for reform of the civil litigation. This Commission also, more or less, reiterated the views expressed by the earlier commissions/committees and stated that the existing procedural laws/rules were generally sound and needed no major surgery. The Commission blamed the successive governments for the apathy and neglect of the judiciary and lack of adequate resources for improving the system of judicial administration in the country. The Commission however did point out certain defects/shortcomings in laws/rules/procedure and suggested appropriate measures for reform thereof. The Commission, accordingly, recommended measures for reform of the Civil Procedure Code 1908, including thorough scrutiny of pleadings, alternative means of service processing, reducing the period for submission of written statement, the system of continuous hearing, reduction in number of appeals and enhancement in the jurisdiction of Small Causes Courts. Most of its recommendations were accepted and incorporated through an Ordinance (Ordinance XXXIII) of 1993, which was later on enacted into an Act of Parliament (Act XIV of 1994). The Commission's recommendations with regard to the creation of a federal judicial system increase in number of judicial officers and provision of better facilities for courts were not implemented.
The Commission of Inquiry for Women was constituted by the Government in 1994 and asked to review all existing laws with a view to remove discrimination therefrom and to suggest appropriate measures for improving the status of women in the society. Justice Nasir Aslam Zahid, a Judge of the Supreme Court of Pakistan, headed the Commission, which had 10 other members. The Commission presented its report in 1997, recommending inter alia for repeal of certain discriminatory laws, amendments to others and setting up institutions for monitoring the enforcement of laws and deciding incidents of gender discrimination.
From the narration of above account, it would appear that procedural laws/rules in the country have been reviewed, from time to time, and appropriate recommendations suggested to the Government for reform law reform and reform of the civil/criminal justice system, with a view to ensure speedy disposal of cases. It is obvious that the successive governments were not very enthusiastic in accepting the recommendations of various commissions/committees.
The Hamoodur Rehman Commission Report 1967 recommended to the Government that a permanent law reform commission should be created for regular and systematic reform of the legal system in the country. The Commission stated that no society in the world could remain statistic, thus it is necessary, that the legal system should keep pace with the changing times and emerging realities. It further observed that the setting up a permanent body would be a valuable assistance to the Government by ensuring that out-dated laws were deleted and new provisions introduced. The Commission thus suggested a permanent statutory body for law reform. Accordingly, the Government constituted a statutory body called Pakistan Law Commission in 1979.