Ensuring an efficient justice delivery system
Masood Ahmad Khattak
As the famous maxim goes, justice delayed is justice denied. Yet the common perception about our civil justice system is one of chronic delays which plague our system to diminish and extinguish any sense of justice being done. Persistent and thorough reforms are a due need of the system. However, understanding the underlying causes of delay in our justice system is necessary to bring about any meaningful change.
Of the plethora of issues which contribute to the problem of delays, the foremost is perhaps the archaic and complex procedural code. The Code of Civil Procedure, promulgated in 1908, has seen few amendments over the past century. Procedures provided by the Code are often lengthy and cumbersome. An instructive example is that the very first stage of the summoning of the defendants can take up to five months on average. Upon non-appearance the Court repeats the process of summons through different modes of services and newspaper publications, before finally proceeding against the defendants in their absence. Of course, throughout this period, the process of summoning is also subject to standard delays caused due to strikes, absenteeism and various other factors which we shall discuss herein below. Summoning of the defendants is just one of the seventeen stages of a standard civil suit, from institution till final adjudication.
Another factor is the insufficiency of the number of existing judicial staff members Islamabad, at present, has sixty-three judges in the District Courts. In February this year alone, 9,148 fresh cases were filed in addition to the 39,567 cases already pending. Assuming this is the fixed number of cases filed each month, there are about 109,716 cases filed in a year. On average, it takes a civil suit anywhere between 2-7 years to be decided.
Thus, each judge is responsible for over 1,000 disputes in a month. This number is far excessive for a single judge to handle. This inevitably causes delays, adding to the backlog of cases, and decreases the quality of the justice dispensed.
The lack of effective case management also means that lawyers, particularly senior lawyers, often face diary clashes. While adjourning cases, courts have no way of ascertaining whether the counsel in a particular case have prior engagements. Thus, cases are often adjourned to dates when the lawyer is already engaged before different forums which prevent him from appearing in court.
Delays are also perpetuated by the collective failings of the legal community in ensuring competence and service standards. Civil Judges and young lawyers are ill-equipped for the challenges of their jobs due to improper and insufficient training. Resultantly, the bar and the bench have both been exposed to decrease in efficiency and quality.
Litigants too have a fair part in perpetuating delays in the civil justice system. Thus, it has become commonplace for litigants to file frivolous cases, applications, objections to vex the opponents through the process of the courts. The maximum court fee levied on civil suits in Islamabad is Rupees 3,450/-, and Rupees 15,000/- in the provinces which has proven to be insufficient to deter frivolous litigants. Similarly, the penal costs for causing delays are imposed too infrequently to create a sufficient deterrent against delaying tactics.
Our justice system is in dire need of broad based institutional reform. Recently , transitional steps to tackle the backlog of cases pending before the Courts in the form of model courts, which are mandated to dispose of cases expeditiously were taken. This initiative is a promising interim measure to address delays. However, thus far, model courts have only been constituted for criminal trials. It is hoped that a similar initiative will be taken for civil trials soon.
The Supreme Court has also recently rendered a detailed judgment 2019 SCMR 389 to improve standards of legal education.
This, coupled with the realization of falling standards has also led the Pakistan Bar Council and the provincial bar councils to take measures to ensure better testing of prospective lawyers. Similarly, the legislature and the executive have passed legislations such as the Cost of Litigation Act to penalize parties for delaying proceedings.
However, the attempts on all fronts, remain ad hoc. For prompt disposal of the cases legislation from parliament is required. Furthermore, the High Courts under Article 202 of the Constitution of Pakistan 1973 are empowered to make their own rules, regulating their own procedure and the procedure of the Civil Courts. The legislature, executive and the judiciary need to work in tandem to introduce transitional as well as long term measures to address the root causes of delay. For unless delays are eliminated, justice will continue to be denied to litigants.
The writer is lawyer.