..::Justice at Groos-Root Level in Pakistan

JUSTICE AT THE GRASS-ROOT LEVEL: The rejuvenated Supreme Court of Pakistan, in a spirit to pay back the sacrifices of the people of Pakistan during the movement for the restoration of the superior judiciary, seems to be leaving no stone unturned in eradicating the constitutional and legal clutter that has marred this country since its inception. In this context, the proactive approach of the Supreme Court in declaring National Reconciliation Ordinance and 3rd November, 2007 actions of the Musharraf regime as unconstitutional; taking up the grievances in the eighteenth amendment; unearthing corruption scandals; overseeing the working of the various government departments; and taking suo moto actions on grave violations of the human rights throughout the country, most recently in Karachi, is courageous as well as laudable.

However, this singular focus on the ‘bigger picture’, how commendable and valuable it may be, has not been able to cater to the heightened expectations of the general public that the restored judiciary would be able to dispense speedy, inexpensive and quality justice at their door steps. No doubt, the afore-mentioned measures taken by the worthy Supreme Court are going to benefit the ordinary citizens in the long run, but a simultaneous attention on the miseries of the hapless litigants, who are made to run from pillar to post for decades in order to seek justice, is the need of the hour.

Apart from performing judicial functions in the Supreme Court, it is the underlying duty of the Chief Justice of Pakistan as the administrative head of the judiciary to streamline the overall justice system in the country with the able assistance of the Chief Justice of the High Courts and the government. Perhaps being reminded of these administrative functions, the National Judicial Policy Making Committee (NJPMC), which comprises of the Chief Justice of Pakistan as its chairman and the Chief Justices of the four provinces, came up with a National Judicial Policy (policy) in 2009 with an aim at “a year for the focus on justice at the grass root level”.

This policy, as a whole, focuses on the expeditious disposal of the cases — neglecting the quality of justice, after observing that around 1.5 million cases in the lower Courts and over one hundred thousand cases in the superior Courts were pending adjudication; to add to this, there has been no proper implementing mechanism of the policy since its announcement a couple of years ago. These figures do not include the number of pending cases in the administrative tribunals including Inland Revenue tribunal – formerly income tax tribunal, Customs Tribunal, and Service tribunals etc. The Federal Board of Revenue, in this regard, told the public accounts committee of the National Assembly that over 6000 cases involving the alleged tax evaders were pending in the Courts, which collectively relate to a staggering amount of Rs. 100 billion. Thus, there is no cavil in saying that that both the ordinary litigants and the government are in the same corner as far as the dispensation of justice is concerned, even after the announcement of the much-vaunated National Judicial policy.

Given this background, I will briefly discuss some of the recommendations of the National Judicial conference, punctuated with my own observations and suggestions to make the judicial system more efficient and effective.

The first and foremost proposal relates to the standards of legal education and entry into profession, along with the training and disciplining of the lawyers. A common perception in the society is that a student who fails in other professions ends up becoming a lawyer. This perception is partly due to the modest entry standards for the legal education, unlike for other disciplines like medical and engineering where students compete for each seat. Thus, the criteria for admission in Bachelors in Law (L.L.B) should be beefed up, i.e., obtaining a certain percentage of marks in the previous degree, and/or an entry test accompanied by an interview. Moreover, in order to make our L.L.B degree acceptable to the legal systems worldwide and to help in the dispensation of justice within the country, we should have an updated and uniform legal curriculum, with a special focus on clinical legal education, including but not limited to the use of case method, mock trial, moots etc. for the law students.

The next step is to restructure the entry into the legal profession, apart from developing a mechanism to impart practical training to the new lawyers. The current system of examination and the subsequent interview do not stop the incompetent, dishonest and otherwise unfit candidates from becoming lawyers. If we add to this the insufficient and ineffective apprenticeship, which mostly happens on paper only, for a period of six months with a senior lawyer and the lackluster attitude of the seniors and the judges towards the young lawyers, we will not be able to hone the young talent. Furthermore, there is an urgent need to have an impartial and apolitical system to hear the complaints against lawyers engaging in professional misconduct; instead of the present system whereby elected representatives in the bar council cannot take any actions against these lawyers due to political and social considerations. It is quite unfortunate that a combination of all the afore-mentioned factors only end up producing the kind of lawyers that we see on T.V engaging in frequent bouts of incivility, apart from resorting to unabated strikes at the expense of the litigants.

Secondly, the government should allocate enough funds, preferably a certain percentage of the G.D.P, to bring about modernization and infrastructure building in the judicial system of the country. There ought to be proper Court premises with adequate parking facilities and Court rooms with all the required paraphernalia, i.e., the furniture, computers, helping staff, and other facilities like Air conditioners, UPS, generators which are required due to the prevailing situation of electricity in the country. It is heartening to see some of these facilities in the lower Courts of Lahore, but the rest of the country is far behind in this regard. In the absence of these amenities, all the three stakeholders, the judges, the lawyers and the clients cannot function properly, ultimately leading to the miscarriage of justice.

Another measure for the speedy disposal of the cases is to increase the number of judges, investigating/police officers and public prosecutors, so that each gets the number of cases he can handle in a day without, in any way, disturbing the quality. Presently, a lower Court judge in Punjab has to deal with a cause list of over 1400 cases in a day, which is humanly not possible. This is further substantiated by the fact that owing to political considerations, High Courts have not been allowed to work at their full strength for last many decades. Presently in the Lahore High Court, the appeals filed during the year 2006 to 2008 are being heard, whilst the later-instituted appeals might be presented before the Court in next three to four years, thus adding to the anguish and sufferings of the litigants. More disheartening is the fact that even now, a great number of seats are lying vacant in the four High Courts.

Furthermore, the process of appointment of judges/investigating officers/police officers/public prosecutors and the terms and conditions of their service, including training, should make sure that not only independent, honest and competent people enter into the field, but they also remain so till they retire. Above and beyond, a strong accountability system for the judges/police/prosecutors should be in place in order to check the corrupt practices.

Above all, we should remember that if there were no litigants, there would have been no demand for the lawyers and the judges. Accordingly, the slogan “Litigants first” should be made an indispensable part of a lawyer’s education and professional ethics. In this regard, apart from getting due respect from the judges and the lawyers, who attend to their cases in a timely manner, the clients, as well as the witnesses, should be provided with comfortable waiting area including provision of drinking water and access to toilets.

The third proposal for dispensation of expeditious and quality justice is that the existing Court procedures and records should to be computerized/automated and made user friendly for the lawyers, judges and the litigants. Hence the Case Management Systems that provide all the stakeholders required information, like cause lists, fixation of Cases in Courts, development of Court Calendar etc, on timely basis should be brought into use. Besides, the process of Service to parties to a case should be made electronically to Parties via Email, and SMS etc, instead of the time-consuming postal servicing and advertising in the print media. Additionally, there should be developed a mechanism for Electronic Filing (e-filing) of Cases, apart from developing an online complaint registration system on the main website of each Court against the judges and the lawyers. Moreover, use of projectors, laptops, video-conferencing in the Courtrooms ought to be explored for the speedy and effective disposal of the cases. The efficacy of the online systems is already appreciated by the users of a couple of online libraries that contains all the updated judgments of the superior Courts.

Fourthly, the tactics adopted by the lawyers in order to prolong the litigations should be curbed. The motives for delaying could be financial, personal, or client-motivated. For this purpose, two methods are used, i.e., seeking adjournments and filing of frivolous applications. The procedural code allows adjournments only if a sufficient cause is shown by either parties or their lawyers, besides providing for the costs of the adjournments to be paid by the party seeking adjournment. These provisions of law are, however, rarely followed by Courts, thus leading to undue delay of the cases. The lawyers or their juniors usually seek adjournments on minor, and often untrue, pretexts that they are busy in other Courts; they are out of city due to other engagements; they are not feeling well; there is a general strike of the lawyers; and I am just engaged; kindly give me time to prepare the case, etc.

A practical example of these delaying tactics could be seen in the NRO implementation case before the August Supreme Court. The government, which is procrastinating in implementing the verdict of NRO, firstly sought adjournment that the law secretary who was supposed to appear before the Court has resigned; secondly, when the government lawyer, Mr. kamal Azfar proceeded abroad; thirdly, when Kamal azfar was hurriedly made a government advisor on a Sunday, and was replaced by another advisor Mr. Latif Khosa, who on appearing before the Court, straight away sought adjournment on the pretext that he had just been engaged last night, so he required time to study the case. In between, a lot of other excuses were honed in order to seek adjournments.

The second, time-tested method for delaying the cases, is filing frivolous applications in the case, so that the focus shifts to the related application instead the main case. In this relation, the most used application relates to the restoration of a case, after it has been let to dismiss due to intentional non-appearance before the Court. Another provision of the Procedural code that is misused is that relating to a review of the decision on the basis that it may have been brought about due to fraud, misrepresentation and lack of jurisdiction – Section 12(2) C.P.C. Thirdly, and most notoriously, the unmitigated right to file appeal on every decision of the lower Court upto the Supreme Court consumes decades before a judgment could be implemented. Therefore, the use of these applications and appeal options should be alertly and assiduously monitored by the judges, and any application intended to prolong the case should be dismissed forthwith.

A joke in this regard is very famous among the legal circles. A father asks his lawyer son to seek adjournment before a Court, because he himself could not attend due to other engagements. The son, instead of seeking adjournment, argues and finally wins the case. However, the father instead of being happy, scolds him off with the observation that this case had managed all his financial requirements up till now including his schooling, and now this source of funding has been destroyed forever.

Other reasons for using delaying tactics could be in order to circumvent the execution of the orders. In this respect, I would narrate a case which was engaged by my senior in the mid 80’s, and which is currently being handled by me, encompassing a period of over 25 years. In this case, the civil Court, district Court, High Court and the Supreme Court had all decided in my client’s favour, but even then the decree has not yet been executed owing to the use of delaying tactics and filing of frivolous applications by the respondents.

Lastly, the Court procedures ought to be simplified, along with implementing other already present remedies in order to reduce the burden before the Courts. Accordingly, the procedure for recording of evidence, methods of service, and execution procedures should be simplified. Evidence through local commissions and affidavits should be encouraged; a special servicing agency could be introduced who is provided adequate training, with a special focus on substituted methods of service, like Email, fax, telephone and SMS etc; and the requirement to file a separate application for the execution should be dispensed with.

Moreover, a certain time on the day of hearing should be given to each case, so that the lawyer and other interested parties do not waste their time in the Courts in order to wait for their turn, as is the norm presently. The parties or the lawyer not appearing on the time should be fined, and as a last measure their case could be dismissed. Further, the Courts should dismiss frivolous litigation with costs as envisaged in the procedural codes, apart from referral by the judge to alternative dispute resolution at a certain stage of the case.

The short and long of the whole discussion is that no doubt that the focus of Supreme Court on the ‘high profile’ cases is praiseworthy, but there is a need for a parallel spotlight on the working of the lower judiciary as well. The proponents of the expeditious disposal of the cases rely on the axiom that “justice delayed is justice denied”, while their counterparts contend that “Justice hurried is justice buried”. The afore-mentioned recommendations and proposals drive a middle ground between both schools of thought, for they focus on the dispensation of speedy as well as quality justice. Therefore, the implementation of these suggestions, in their letter and spirit, can go a long way in making the dream of providing quick and effective justice to the common people a reality. For this purpose, the government, judiciary and the lawyers should proactively play their respective roles.

By:

NAUMAN QAISER Advocate High Court