Addressing a seminar organised by the Supreme Court Bar Association in Lahore last week, Chief Justice of Pakistan Mian Saqib Nisar lamented over the miserable state of the dispensation of justice in the country. He identified the delay in the dispensation of justice a chronic malady of the country’s judicial system. “The people lose trust on judges when there is delay in the dispensation of justice”, he remarked. He held the judiciary and lawyers equally responsible for this deterioration of the judicial system and made it clear that the future generation would not forgive us for it. At times, the honourable CJP has expressed his strong intention to thoroughly reform the country’s judicial system. However, we just observed a substantial surge in the number of Suo Motu actions taken by the apex court following the conclusion of Panamagate case in July 2017. So, unfortunately, the ‘judicial activism’ has just overshadowed the much-needed judicial reforms in Pakistan.

A large number of judicial reform commissions have been constituted to make recommendations to improve the state and quality of the dispensation of justice in Pakistan. Moreover, there have also been devised and announced several National Judicial Polices for the same purpose. However, in the absence of required resolution and will, these policies and recommendations have never been serious tried to be implemented in the county. According to Law and Justice Commission of Pakistan, there are more than 1.8 million cases currently pending with the superior and subordinate courts in the country. This year’s Rule of Law Index report released by the World Justice Project also paints a gloomy picture of Pakistan’s judicial system. Currently, Pakistan stands at 106th position in terms of administration of civil justice among the 113 assessed countries. Certainly, it is extremely deplorable. Worryingly, Pakistan’s civil justice system is one of the worsts in the world, and simply the worst in Asia.

“Justice delayed is justice denied”, so goes the common legal maximum. But, sadly, the delay in the dispensation of justice has somehow become the most dominant feature of our civil justice system. So, in this particular context, I usually dub our civil courts as ‘calendar courts’ by drawing an analogy between these courts and a typical yearly calendar. A calendar essentially bears dates, so do these courts. We mostly appear in a civil court on a fixed date only to get the ‘next date of hearing’, and nothing else. The primary activities of both complementary components of this judicial system, the adjudicator and pleader, often keep on revolving around a calendar during the proceedings. The former eagerly displays a calendar on an official table in the court room while the latter always keeps it with him/her in the form of a professional diary.

We can’t exactly imagine the plight of ordinary litigants who usually face countless troubles and constraints while dealing with this judicial system. In fact, our judicial system more supports the wrongdoers than the wronged ones. A hapless litigant often gets nothing despite fighting a lifelong legal battle. Therefore, sometimes these courts look like mere mortar-and-brick buildings all meant for perpetuating injustice rather than dispensing justice.

The Code of Civil Procedure, 1908 is the bible of civil procedure in Pakistan. It essentially divides a civil trial in a number of stages or phases that generally start from instituting a civil suit and precede each other in a fixed and definite order e.g. the service of summons, submission of reply, framing of issues, evidence, arguments, and finally the pronouncement of judgment by a judge. The CPC has fixed the specific time periods within which a civil court is supposed to conclude the intended proceedings of each stage of this civil litigation. It also prescribes a number of penal measures against a party to the suit which fails to act as required by the court during the trial. So, if this procedure is strictly followed by the civil court, a civil case can by all means be disposed of within 6 to 12 months.

Strangely, instead of reforming or improving the colonial-era civil procedure after getting independence, we just chose to interpret and practice it in a manner which eventually led to its decay and deterioration. Indeed, an ‘Anglo-Pakistani garnishing’ to this Anglo-Indian enactment simply proved disastrous. Initially, through various judgements, the superior courts prescribed that the civil courts should decide a case on merits instated of procedural technicalities after affording parties a full opportunity of being heard. However, these judgements have eventually given rise to a novel civil procedure characterised by an unending series of adjournments, thanks to the adjournment-seeking lawyers and adjournment-happy judicial officers. At each stage of the civil litigation, a judge frequently adjourns the proceedings in rather a mechanical fashion to enable the litigants to fully avail the ‘pool of opportunities’— “first opportunity”, “second opportunity”, “another opportunity”, “final opportunity”, “last opportunity”, “absolute last opportunity”, and so forth. Thus, a single stage in the trial sometimes takes years without contributing anything substantial to the judicial record of the case.

All the stakeholder of our judicial system, namely the judges and lawyers, are equally responsible for the current miserable state of this system. Bar politics and the culture of strikes have adversely affected this system. On the other hand, incompetent and unmotivated judicial officers have made things even worse. Perks and emoluments of the judges of both superior and lowers courts have been increased many-fold over the last few years. But regrettably, there has not been any significance improvement in their performance and efficiency. At present, there hardly exists any effective and comprehensive mechanism for the judicial accountability at any level of the judicial hierarchy.

Since our mainstream judicial system has miserably failed in providing “inexpensive and expeditious justice to the masses, the very tool of Alternative Dispute Resolution (ADR) is being portrayed by many as the only significant remedy for the country’s ailing justice system. So, this informal system of dispute resolution is keenly being tried to be introduced and promoted in the country. To ensure “inexpensive and speedy dispensation of justice”, the Alternative Dispute Resolution Act, 2017 was passed and promulgated last year. Under this act, the court can refer, with the consent of the parties, the specified civil matters to a notified “Neutral” who shall dispose of a matter within a period of thirty days. A number of ADR centres have also been made functional in all lower courts throughout Punjab.

Alternative Dispute Resolution is an informal dispute resolution process or technique whereby disagreeing parties comes to an agreement short of litigation. In fact, ADR is an umbrella term for a variety of legal techniques to resolve a dispute, mostly with the help of third party, such as negotiation, mediation, arbitration, and conciliation. Indeed, this is an expeditious and inexpensive method of dispute resolution. Nevertheless, ADR can’t be a substitute for a formal judicial process. The ADR system inherently lacks the capacity to decide a dispute involving some complex legal and factual questions. It can only work if both parties to a dispute agree to settle their dispute through this method. Moreover, a civil suit is usually instituted in a civil court when both parties fail to resolve their dispute through negotiation or mediation. Therefore, when an aggrieved person approaches a court for the determination of his rights or the redressal of his grievances, it should be the duty of the court to expeditiously adjudicate this matter in accordance with the law after hearing both parties rather than advising him to mediate with the very person who has infringed his legal rights. As a matter of fact, the much-hyped ‘game-changing’ ADR system has yet not succeeded in providing any significant relief to numerous litigants in Punjab.

It has been rightly said “The best way out of a difficulty is through it”. Therefore, to ensure a speedy and quality justice to the people, we have no other option except to improve the general state of our mainstream judicial system after plugging the loopholes in this system. Now if we can’t reform this system, we should at least stop shedding crocodile tears over the demise of this judicial system. Indeed, what can’t be cured must be endured.

(To be continued)

 

The writer is a lawyer and columnist based in Lahore.

mohsinraza.malik@ymail.com

@MohsinRazaMalik