THE proceedings in our courts are not recorded. There is no transcript prepared of the arguments presented before the court. The only account of what transpires in the courtroom is the order or judgement rendered by the judge.

That order, though, may be highly deficient. This is particularly the case in proceedings before the civil and district courts, which are referred to as the lower judiciary in Pakistan. This description may appear to some as apt in view of the quality of orders issued, which are often seen to be below par or defective.

This deficiency is there for two reasons. One, the judge may not have understood the contentions of a party to a dispute. The lawyer may have argued X but the judge may have understood Y. Two, the judge may not even have recorded the contentions of the lawyer. It is as if the argument was never made.

A judge in Pakistan, as a result, has carte blanche to record the arguments (or not) in whatever shape or form he considers fit. There is no other record of the hearing, itself, to keep the judge accountable in what he actually records in the order. There is no transcript prepared, no audio-recording, or video-taping.

And this leads to multiple problems. If a judge completely misses the point, misunderstandsthefactualandlegalcontentions, or intentionally misrepresents a lawyer`s argument in his order, the only remedy that the lawyer has before her client is to swear by God that she did her job in court. Other than this oath, there is no way for a lawyer to prove that an argument was actually made, or made in a particular manner.

And this has a flip side too. The lawyer may present to her client, after a hearing, that she argued the case as the client directed her to, even when the lawyer may not have actually done so. In either case, the litigant loses.

This problem is worsened because of the codified doctrine that attaches the presumption of truth to official and judicial documents. Such a presumption, codified in evidence law and embraced wholly by our judicial system, is hardly necessary. Has this presumption been earned? If an argument was actually made and not recorded, or if it was made entirely differently than as recorded in the judges` orders, then the judicial system works to ensure that the judges` words prevail. With the judge on one side and the lawyer on the other in a he-said she-said situation the lawyer is naturally going to lose out.

This would have been a problem evenif Pakistan`s judicial system was considered one of the best, manned with people of integrity and honesty. This lack of accountability would remain problematic even if angels sat asjudges because honest mistakes can be made. But Pakistan`s judicial system has never been known to be an exemplar for the rest of the world to emulate.

The solution is so easy it`s hard to see how everyone has missed it in their general apathy with justice, even when, ironically, self-serving constitutional amendments, in the name of judicial reform, were passed at lightning speed just recently. There has to be a recording of the proceedings before the judge. Every word needs to be recorded, either typed by the stenographer, audio-recorded with the help of AI, or recorded on camera. A lawyer should be able to point out to her client, and to the appellate forum, that an argument was made but was not recorded, or an argument was completely different from what appears on the ordersheet.

This will fix another major problem rampant in our courtrooms. Many lawyers lie with impunity: they lie about the facts, the law, and what the other side has argued. Overworked and overburdened judges somebright, others not so bright; some honest, others not so much may not have the requisite bandwidth or the relevant concern to putin the effort to reach the right and fair result. The liars are not called out, even as decisions are rendered in their favour. Recorded proceedings would show who lies and who doesn`t.

What is being proposed was done in the Supreme Court. The proceedings were streamed online. It was a step in the right direction. It exposed our judicial system, the quality and integrity of our judges, even justice Qazi Faez Isa who introduced the livestreaming.

It also exposed the quality of the lawyers` arguments.

But this is a much bigger issue in our `lower` courts, where anything goes.

The least we can do is to make the procedures followed in the avenues where justice is supposed to be dispensed a bit more transparent. • The wnter is a lawyer based in Islamabad.

The views expressed are his own and not those of his firm.