ISLAMABAD: The Supreme Court is all set to take up a constitutional petition next week, seeking its directions for improving the capacity and performance of administration of justice.
The petition was moved by five young lawyers – Umer Gilani, Hadiya Aziz, Muhammad Haider Imtiaz, Attaullah Hakim Kundi and Raheel Ahmed – under Article 184(3) of the Constitution, making all registrars of high courts, federal government, provincial governments and others respondents.
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The petitioners submit that being the citizens of Pakistan and legal practitioners enrolled under the Legal Practitioners and Bar Councils Act, 1973, they are personally aggrieved by the lack of enforcement of the fundamental right of access to justice which is the subject matter of their petition.
As members of the legal profession, they submit further, they are aggrieved by the loss of reputation of judicial system in the eyes of the people of Pakistan as the loss is a direct result of the lack of acts and omissions alleged in the petition.
The petition says that access to justice must be considered a fundamental right because it is an essential corollary of all the rights granted under the Constitution.
It is submitted that studies published by eminent social scientists provided evidence that “at present the right of access to justice is being violated in Pakistan in a systematic manner, and all kinds of litigants, seeking enforcement of their rights through courts in Pakistan, face inordinate delays that cannot be reasonably predicted”.
The World Justice Index – a scientific study of 113 countries carried out by a worldwide network of independent researchers – has ranked Pakistan at 106 in terms of Access to Justice, according to the petition.
The World Bank (WB) Ease of Doing Business Survey is a study of more than 190 countries of the world which ranks Pakistan at 147. According to the WB study, the average time taken for enforcement of a contract in the business sector is more than 1,096 days in Karachi and 1,025 days in Lahore – almost three years, says the petition.
Under the guidance of Justice (retd) Jawwad S Khawaja, former chief justice of Pakistan, it was determined that in a case where the parties chose to avail all legal remedies up to the Supreme Court level, it took an average of 25 years to conclude litigation, it says.
The petition submits that under Article 37(d) of the Constitution, it is the responsibility of each and every organ of the state to ensure delivery of “inexpensive and expeditious justice” to all citizens.
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But, it adds, from the general scheme of the 1973 Constitution, it appears that the primary responsibility of enforcing the fundamental right of access to justice is that of “the Judicature” – the organ of state defined in Part VII of the Constitution.
“In other words, the primary responsibility for ensuring access to justice falls upon, inter alia, Supreme Court of Pakistan, the high courts, the courts established through laws enacted in pursuance of Article 175 and the tribunals established through law enacted under Article 212 of the Constitution,” it submits.
The petition goes on to say, “Under Article 203 of the Constitution, it is the duty or obligation of high courts to supervise and control all courts subordinate to [them]. It is relevant to highlight that the word used in Article 203 is ‘shall’ which indicates a job that must be performed. When Article 203 is read together with Article 37(d), it is clear that the high courts are constitutionally bound to take all such steps as are necessary for ensuring that the courts subordinate to them are dispensing inexpensive and expeditious justice.”
The petition raises the question that whether high courts have thus far vigilantly exercised the powers vested in them under Article 202 of the Constitution and Section 122 of CPC for the purpose of ensuring smooth functioning of the courts under their control and for facilitating access to justice.
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For most categories of suits, petitions, revisions and appeals, no time limit has been provided in statutes framed by parliament. The high courts can, through rules, provide timelines for such categories of suits but have yet to do so.
The petition sees the need to frame rules for imposing costs upon parties for engaging in frivolous litigation and dilatory tactics.
“Likewise, rules for conducting Alternative Dispute Resolution (ADR) especially arbitration: while Section 89A, Order X Rule 1A of the CPC and Arbitration Act, 1940 allow courts to refer matters to ADR, the high courts have not yet framed any rules to implement these provisions. Conspicuously missing are arbitration rules, as a result of which arbitration in Pakistan continues to be largely ineffective in saving court time or in minimising shelf-life of cases.
“In order to better enforce the Fundamental Right of Access to Justice, it is absolutely essential to identify the key stakeholders of the justice system and then understand the obstacles causing delay.
“The performance of any court system in the world depends upon the behaviour of seven key players: litigants; witnesses; trial courts; appellate or revisional courts; lawyers representing litigants; service providers of courts, including process servers, record-keepers and oath commissioners; and the people of Pakistan.
“It is therefore humbly prayed that the Supreme Court may issue directions to the high courts to: make fresh rules under Article 202 of the Constitution and Section 122 of the CPC for the imposition of costs; set up a monitoring mechanism to ensure that the rules regarding costs are enforced; and publish data regarding such enforcement.”
The petitioners have prayed that after examining the provisions indicated above and in such other provisions of law as may be relevant, the Supreme Court may kindly declare that all courts are obliged under the law.