Despite the recent series of efforts and good will by the judiciary, the justice system in Pakistan remains frail and far from providing timely and inexpensive justice to the masses. As a result, the sufferers of this injustice, especially the women and other marginalised sections of society, are either forced to remain silent and tolerate the ire of unfairness regularly taking place in their lives, or they resort to the traditional forms of justice that have proven to be quick, but exploitative and regressive, without holding any legal standing or moral justifications.
The question that arises then is, what are the gaps that really obfuscate the process of the timely dispensation of justice, especially in civil cases? The answer is offered by an empirical research study on “Delays in the Delivery of Justice in Civil Cases: Empirical Evidences from Four Judicial Districts in Sindh” conducted by a Karachi-based NGO, Legal Aid Society, and authored by Summaiya Zaidi. The study provides both a qualitative and quantitative empirical insight into the state of proceedings for civil litigation through a sampling off our judicial districts in Sindh i.e. Karachi (Central), Karachi (Malir), Larkana and Sukkur. Though it might be erroneous, its findings could be generalized to depict the status of delivery of justice in civil cases across the country, or at least in Sindh.
The research shows that, similar to other parts of Pakistan, Sindh has been facing a serious issue of a huge pendency of cases. However what is more concerning is the disposal rate of cases in Sindh, which is very low. It stood at 141,625 cases in just the lower judiciary for the month of February 2017. Furthermore, the Judiciary has only been able to break-even in terms of the numbers of cases filed and those concluded within the time frame between October 2016 and February 2017.
A host of issues are identified in the research, which cause such huge pendency and delayed justice. The major among these issues are positioned in the noncompliance of the Civil Procedures Code (CPC), 1908. The CPC lays down procedures and timeline for the different stages of a case, concerning service of summons/notice, filing of objections, and the parties’ appearance in the courts. It’s when these issues and recording of evidence are not followed up properly, that serious problems in the disposal of the cases are caused.
Issuance of notices in principle must be served as soon as possible to make sure that applicants and respondents, along with their counsels, appear in court and the case can progress. However, this usually takes an unreasonably protracted time. The research shows that a case from Malir in Karachi remained pending since 2014, because of this exact problem.
Filing of Written Statement/Objections is another stage which results in delays. The research highlights a case from 2012, from Karachi Central, in which the Written Statement/Objections were filed as late as 2016. This was against the CPC rules, which state that only a period of thirty days is allowed to the defendants, and if they fail to stay within the time limit, the Court may pronounce judgment against them.
The Judiciary has only been able to break-even in terms of the numbers of cases filed and those concluded within the time frame between October 2016 and February 2017
Adjournments are also another serious issue which cause delays in the timely disposition of civil cases. The research exemplifies that in a First Class Civil Suit for Damages filed before an SCJ in Sukkur, the counsel for the applicant filed 45 applications for adjournment, while the counsel for the Defendant filed 25 such applications. Furthermore, the practice of adjournments during the recording of evidence, which remains disallowed by the law, continues to occur despite the fact that laws (clause (2) of Rule 1 of Order XVI ) states that once the recording of evidence has begun, it must continue daily.
At the level of institutional delays, the research found that the judge-to-population ratio was very low. It also found that other infrastructure and human resource deficiencies at the court level contributed to the slow process of disposing of cases.
To conclude, the research put forward a set of recommendations to make sure that speedy justice is delivered in civil cases. First and foremost, the judge-to-population ratio must be put right according to international principles. The judges should also be provided associates who could support them in terms of research and judgment writing. The research further recommended amendments in CPC so as to reform the service process by prescribing that all modes be utilized on the first date after filing. It also recommends that CPC be amended so that judges are more actively engaged in managing a case, which includes pre-action protocols to explore ADR options.
The use of formal Alternative Dispute Resolution (ADR) Mechanism can help reduce the burden on the courts so that cases could be disposed of in a timely manner. In this regard, it is recommended in the research that all parties engaged in the Civil Justice System should be provided with trainings on ADR methods; courts should be required to ask parties in each case to explore the option of ADR; within the Court premises there should be a separate office for ADR/court annexed mediation with trained personnel to assist in this regard; and a proper framework for ADR systems must be put in place, including ensuring quality standards, rules, and procedures. Most importantly, the research suggests that CPC provisions governing the timelines and procedures for the various stages of a trial should strictly be followed up by all stakeholders of the justice system.
The writer holds a Master’s degree in Human Rights and Democratisation from the University of Sydney. He can be reached at [email protected], and tweets @Jamiljunejo
Published in Daily Times, August 5th 2018.