TOPIC
The major causes of delays and obstacle in the civil justice system of Pakistan, and the propositions to reform the system of civil justice in Pakistan in the light of proposals for reform in other countries.
Outlines Introduction Civil justice system of Pakistan The present condition of civil justice system of Pakistan The major causes of delays and obstacles Propositions to reform in other countries The Propositions for the reform of civil justice system in Pakistan Conclusion References
Introduction
Justice is the concept of moral
rightness based on
ethics,
rationality,
law,
natural 1
law, religion, fairness, or equity, along with the punishment of the breach of said ethics. In all societies, cultures and religions, justice has played an undeniably important rule in the growth of human civilization. The importance of justice can well be judged by the following words of Sir Winston Churchill “The whole history of the world is summed up in the fact that, when nations 2
are strong, they are not always just, and when they wish to be just, they are no longer Strong” . From Hammurabi to present day countless jurists, constitutionalists and lawmakers have tried their level best to make sets of rule in accordance with the virtues, norms and values prevailing in their societies and cultures, in order to make a distinction between good and evil and to provide relief to one who is deprived. Nonetheless, a fine set of rules and laws are no more than mere words if not implemented in time. No matter how rationale and logical is the outcome but is of trivial importance if the decision by the Justice provider is delayed ,which can be best described as “ The reason one goes to court is to get justice, and Justice Delayed is Justice 3
Denied".
1
James Konow, "Which Is the Fairest One of All? A Positive Analysis of Justice Theories." Journal of Economic Literature 41, no. 4 [2003] page 1188 2
Winston S. Churchill: his complete speeches, 1897-1963 Volume 1 ,edited by Robert Rohodes James , published by Chelsea House Publication, 1074, p,5721 3
Magna Carta, clause 40
Civil justice system of Pakistan
In terms of Article 8 of the constitution any law inconsistent with or in derogation of 4
Fundamental Right are to be treated as void . Right to speedy and expeditious disposal of cases is part of the right to life and liberty. The State as a guardian of the Fundamental Right of its people is duty bound to ensure speedy trial and avoid any excessive long delay in trial of any kind of cases that could result in grave miscarriage of justice.
5
Speedy trial is in public interest
as it serves social interests also. Presently the entire judiciary of Pakistan is facing a huge backlog of almost 1.359 million cases 6
of different nature. the breakup of pending court cases in the Supreme court of Pakistan is 20,539, Federal Shariat Court 1,812, High court of Punjab 129800, Sindh 39461, Khyber Pakhtunkhwa 18283, Balochistan 5662 and Islamabad High Court 6139. Accordingly, also in the 7
District courts of all four provinces 11,34,119 cases were pend ing in the year 2011.
4
Constitution of Pakistan,1973 American Bar Association Journal, July 1976, vol 62, p.862 th 6 http://www.pakistantoday.com.pk/2011/03/judiciary-facing-backlog-of-1-35m-cases/(Last visited on 30 December, 2012) 7 Ibid 5
The major causes of delays and obstacles
Lack of proper court management, deficient case processing, shortcomings in the system of legal education and judicial training, non-utilization of alternative dispute resolution mechanisms, 8
archaic laws, and inflexible procedures are some of the factors for delays and backlogs amongst 9
many others , a few are narrated below:
Delay on the part of the judge once, case is reserved for orders, in writing decision and announcing the same within reasonable time on account of lack of writing skills of judge as most of them especially at the lower strata are d ependent on their staff.
Filing of written statement, framing of issues, filing and or oral recording of evidence, and lengthy cross-examination, oral/written arguments etc due to lack of knowledge of court managerial techniques and methods.
Lack of adequate facilities like library, books, steno etc. resulting in delays in disposal of cases.Unawareness of the most of judicial officers with the modern tools of information Technology.
Lax and incompetent judge who seem to be unable to reach decision after proceedings has been held, possibly because the issues and evidence are too complicated and not summary in nature.
The issues are multifaceted, however, the most prominent and also covering the scope of my work is the issue of sufficient courts and judges, inadequate training to judicial officers, a feeble capacity building system which procreate judicial officers equipped with vintage tools, methods st
and techniques of 21
10
century A.D
, culminating into a court mechanism, enormously
incapable of providing fair and speedy justice.
8
Irshad Hasan Khan Ex - Chief Justice of Pakistan, „The Judicial System of Pakistan Measures for Maintaining Independence and Enforcing Accountability‟ Edited by Rudolf V. Van Puymbroeck, pu blished in the report Comprehensive Legal and Judicial Development Toward an Agenda for a Just and Equitable Society in the 21st Century p,257. th 9 http://www.pakistanlaw.net (Last visited on 30 December, 2012) 10 American Bar Association Journal Oct 1970 , Volume 56. P.929.
Propositions to reform in other countries
The concept of speedy trial has been incorporated into the laws of various countries. The right to speedy trial is recognised as a common law right flowing from the Magna Carta in UK, USA, Canada and New Zealand. A variety of international conventions have also endorsed the significance of the right to speedy trial, including Article 14 of the International Convention on Civil and Political Rights, 1966. The propositions to reform in England
Lord Woolf had identified three key interrelated p roblems facing the civil justice system in England and Wales: delay, cost and complexity. According to Lord Woolf's cost, delay and complexity are three inter-related problems. The approaches adopted by Lord Woolf were:
To encourage early settlement of disputes through pre-action protocols, information and use of alternative dispute resolution processes.
To unify the procedures between high court and county court.
To allow court to allocate cases into either small claims track, fast track, and multi-track.
To enable court to manage cases with strict time-table and penalty for unreasonable delay. Accordingly, the unification of the two procedure rules, lord Woolf said, would make the process 11
simpler rather than being daunted b y legal jargon. The propositions to reform in India
The Indian experience should be of special interest to all of us because of the similarities between our systems. In October 1994, the former Chief Justice of India, Judge Ahmadi, initiated dramatic reforms in the handling of all matters pending before the Supreme Court of India. A comprehensive computerization programme was instituted; a uniform classification system, according to subject matter of cases field, was created; and filing, listing, classification and
11
Access to Justice, Interim report, Ch 4, [4].
allocation tasks in the Indian Supreme Court Registry were computerized. These initiatives dramatically reduced the Supreme Court caseload from approximately 1,20,000 cases in October 1994 to 28,000 cases in September 1996. Encouraged by the success, he duplicated these efforts 12
in the High Court and subordinate courts.
The Propositions for the reform of civil justice system in Pakistan The Judicial officers
It is important that a system be put in place to give the newly recruited judicial officers substantial training in judicial reasoning and discretion. This will go a long way in helping them dispense justice satisfactorily. The provision of basic legal information such as updated statues and case reports are necessary for the judicial officers to effectively do his or her job in 13
dispensation of fair and speedy justice to people. . Court Personnel and Support Staff of the Judiciary
For any judiciary to function efficiently it is necessary for the judges to be well versed in the law and its operations and it is equally important for the staff who support the judicial officers to be trained so that they have the required skills that will enable them to discharge their responsibilities effectively.
14
Increase in number of judges
There is a chronic and pervasive shortage of judicial officers and ministerial staff in the courts. The strength of judicial officers is not in consonance with the workload of courts. Mostly, due to financial constraints, new vacancies are not being created and the existing ones are not being timely filled. Therefore, there is dire need of a good number of judges in the country.
12
Mr. Justice Tasadduq Hussain Jilani, Delayed justice a nd the role of A.D.R. P. 5 American Bar Association Journal Oct 1970 , Volume 56. P .929. 14 Ibid 13
Modernisation and Computerisation of Courts
In this era of globalization and rapid technological developments, which is affecting almost all economies and presenting new challenges and opportunities, judiciary cannot afford to lag behind and has to be fully prepared to meet the challenge of the age. Inter-court and Intra-court communication facilities, developed through use of Internet not only save time but also increase speed and efficiency. Day-to-day management of Courts at all levels can be simplified and improved through use of Technology including availability of Case Law and administrative requirements. Training for the Media
It is important that programs are established to teach the media the principles underlying a well functioning judiciary. Elite members of the media need to understand the principles and processes of an independent judiciary and they need to know the standards the community has the right to demand of its judiciary so that they can scrutinize, monitor, and report accurately on the degree of attainment of these standards .
15
The provision of good infrastructure and sufficient facilities
The consecutive reports of different Law Reform Committees have pointed out the nonavailability of enough number of court rooms and related facilities, like adequate requisite equipments, e.g. typewriter and stationary, etc. This concern has to be addressed as well and should be resolved through building of ample number of court rooms and provision of the associated amenities.
15
Ibid
Conclusion
In a rule of law society, ordinary people should be able to resolve their grievances and obtain remedies in conformity with fundamental rights through formal institutions of justice in a peaceful, effective and fast manner. Civil justice requires that the system be accessible, affordable, effective, impartial, and culturally competent. Accessibility includes general awareness of available remedies; availability and affordability of legal advice and representation; and absence of excessive or unreasonable fees and hurdles. Impartiality includes absence of arbitrary distinctions, such as social and economic status, as well as decisions that are free of improper influence by public officials or private interests. Effective civil justice also implies that court proceedings are conducted in a timely manner and judgments are enforced without unreasonable delay. To sum up, it is concluded that, it is a proven observation that if a government ensures that it has an effective system of personal rights laws, and other elements of a comprehensive legal system being effectively, impartially, and cleanly administered by a well-functioning, impartial, and honest judicial and legal administration then it guarantees a system of good governance. Therefore, knee jerk actions have to be taken for the implementation of the reforms proposed variously regarding the civil justice system of Pakistan.
