Heart of the legal system: speedy justice
Practice of disrupting court proceedings in the form of strikes or protests needs to end immediately
The writer is a lawyer and can be reached at komal_anwar@hotmail.com
1,805,887 cases are pending before the Supreme Court, the Federal Shariat Court, high courts and district courts as per the official statistics published by the Law and Justice Commission of Pakistan in February 2019. The pendency at the Sindh High Court stands at 88,972 and at the Lahore High Court at 165,202.
Recently, lawyers disrupted the proceedings of the Model Criminal Trial Courts established in a metropolis in line with a decision of the National Judicial Policy Making Committee.
The reason given for the disruption was that the proceedings were being conducted 'hurriedly' by these courts without fulfilling the legal formalities of the process of trials and justice. Such an act by the lawyers should be strictly condemned given that judges are best placed to ensure that the requirements of due process are complied with.
The issue of speedy justice has long been talked about and till date has not brought any fruitful results. Clearly, there is a systemic failure which needs to be addressed through ways that are practical and not simply rhetorical.
Before dealing with the possible solutions for speedy justice, it is necessary to understand what is meant by this term. Speedy justice does not refer to disposal of cases hurriedly in an attempt to get rid of the massive backlog of cases in courts. Instead, the term denotes justice being served fairly and timely by following the due process of law.
Unlike the popular misconception that judges are solely responsible to address the issue of delays in delivering judgments, this writing argues that both lawyers and judges play a major role in ensuring speedy justice. The best approach to deal with delays is through adopting strategies that are suited to the culture of courts in Pakistan as opposed to generic strategies inspired from courts worldwide.
Firstly, the practice of disrupting court proceedings in the form of strikes or protests needs to end immediately. Law-enforcement agencies such as the police should take swift action against any persons causing disturbances inside the courts’ premises.
On 18th April, 2019, the Sindh Bar Council decided to observe a strike and boycott court proceedings in response to the policy decisions on Section 22-A and 22-B of the Code of Criminal Procedure. Such suspension of court work should be declared illegal. In India, for example, the Supreme Court in the landmark case of Hussain v Union of India on March 11, 2018 observed that “suspension of work or strikes are clearly illegal and it is high time that the legal fraternity realises its duty to the society which is the foremost…judicial service as well as legal service are not like any other services. They are missions for serving the society. The mission is not achieved if the litigant who is waiting in the queue does not get his turn for a long time.”
Secondly, judges should strictly adhere to Article X of the ‘Code of Conduct for Judges of the Supreme Court and the High Courts’ which requires judges to take all steps to decide cases expeditiously. In this regard, the recent initiative by the Supreme Judicial Council under the chairmanship of Chief Justice of Pakistan Asif Saeed Khosa to proceed against judges over charges of inefficiency is a much welcome step.
Thirdly, the shameful trend of lawyers taking endless adjournments to prolong the stay orders given in their favour or to delay cases that seem to go against them should be penalised by the judges. An adjournment policy should be formulated whereby lawyers are required to give strong reasons in advance for not being able to appear before the court.
Any contravention should be penalised by the judges proceeding the matter ex-parte which means that the matter can proceed in the presence of one party’s counsel only.
Former chief justice Mian Saqib Nisar in a judgment reported in 2015 Supreme Court Monthly Review 1550 observed that “in quite a large number of cases it has been experienced that the cases are adjourned for the arguments for umpteen, indefinitely numerous occasions, therefore to curb this menace the Judges of the District Judiciary and the special forum throughout the country while pronouncing their judgments should record a note at the end/bottom thereof, as to how many times the case was listed for hearing of the arguments and was adjourned so that the high courts which have supervisory authority over the said Judiciary must stay abreast of the performance of the judges; the causes of the delay and should take measures and the steps to rectify the causes and the reasons in this behalf…no lethargy or casual attitude is tolerable and the times have come to take appropriate stern and positive actions for speedy justice, rather simple rhetoric.”
Fourthly, the roster system needs to be revised in a manner such that the judges who have heard more than fifty per cent of the arguments by the counsel of both the parties should be bound to declare the judgment on that matter instead of a new bench listening the case afresh. Even though the power to regulate the sittings of the court is an administrative power and does not afford any basis for regulating the mode of hearing of a case by a bench properly seized of it.
However, such an administrative exercise should be carried out efficiently with the objective of cases being disposed of promptly. This is in line with Article 37(d) of the Constitution which states that the state shall ensure inexpensive and expeditious justice.
Finally, the filing of frivolous cases to gain media publicity should be curtailed and judges should not entertain any cases that can be settled outside court.
Unnecessary litigation consumes significant judicial resources and serves very limited purpose. The Cost of Litigation Act 2017 implemented in Islamabad to get rid of frivolous litigation and lodging of false cases should be implemented in other provinces as well.
The greatest problem in Pakistan is the implementation of the law and guidelines. Thus, the question remains: Will judges and lawyers step up their game to ensure efficient and expeditious disposal of cases?
Published in The Express Tribune, April 20th, 2019.
Recently, lawyers disrupted the proceedings of the Model Criminal Trial Courts established in a metropolis in line with a decision of the National Judicial Policy Making Committee.
The reason given for the disruption was that the proceedings were being conducted 'hurriedly' by these courts without fulfilling the legal formalities of the process of trials and justice. Such an act by the lawyers should be strictly condemned given that judges are best placed to ensure that the requirements of due process are complied with.
The issue of speedy justice has long been talked about and till date has not brought any fruitful results. Clearly, there is a systemic failure which needs to be addressed through ways that are practical and not simply rhetorical.
Before dealing with the possible solutions for speedy justice, it is necessary to understand what is meant by this term. Speedy justice does not refer to disposal of cases hurriedly in an attempt to get rid of the massive backlog of cases in courts. Instead, the term denotes justice being served fairly and timely by following the due process of law.
Unlike the popular misconception that judges are solely responsible to address the issue of delays in delivering judgments, this writing argues that both lawyers and judges play a major role in ensuring speedy justice. The best approach to deal with delays is through adopting strategies that are suited to the culture of courts in Pakistan as opposed to generic strategies inspired from courts worldwide.
Firstly, the practice of disrupting court proceedings in the form of strikes or protests needs to end immediately. Law-enforcement agencies such as the police should take swift action against any persons causing disturbances inside the courts’ premises.
On 18th April, 2019, the Sindh Bar Council decided to observe a strike and boycott court proceedings in response to the policy decisions on Section 22-A and 22-B of the Code of Criminal Procedure. Such suspension of court work should be declared illegal. In India, for example, the Supreme Court in the landmark case of Hussain v Union of India on March 11, 2018 observed that “suspension of work or strikes are clearly illegal and it is high time that the legal fraternity realises its duty to the society which is the foremost…judicial service as well as legal service are not like any other services. They are missions for serving the society. The mission is not achieved if the litigant who is waiting in the queue does not get his turn for a long time.”
Secondly, judges should strictly adhere to Article X of the ‘Code of Conduct for Judges of the Supreme Court and the High Courts’ which requires judges to take all steps to decide cases expeditiously. In this regard, the recent initiative by the Supreme Judicial Council under the chairmanship of Chief Justice of Pakistan Asif Saeed Khosa to proceed against judges over charges of inefficiency is a much welcome step.
Thirdly, the shameful trend of lawyers taking endless adjournments to prolong the stay orders given in their favour or to delay cases that seem to go against them should be penalised by the judges. An adjournment policy should be formulated whereby lawyers are required to give strong reasons in advance for not being able to appear before the court.
Any contravention should be penalised by the judges proceeding the matter ex-parte which means that the matter can proceed in the presence of one party’s counsel only.
Former chief justice Mian Saqib Nisar in a judgment reported in 2015 Supreme Court Monthly Review 1550 observed that “in quite a large number of cases it has been experienced that the cases are adjourned for the arguments for umpteen, indefinitely numerous occasions, therefore to curb this menace the Judges of the District Judiciary and the special forum throughout the country while pronouncing their judgments should record a note at the end/bottom thereof, as to how many times the case was listed for hearing of the arguments and was adjourned so that the high courts which have supervisory authority over the said Judiciary must stay abreast of the performance of the judges; the causes of the delay and should take measures and the steps to rectify the causes and the reasons in this behalf…no lethargy or casual attitude is tolerable and the times have come to take appropriate stern and positive actions for speedy justice, rather simple rhetoric.”
Fourthly, the roster system needs to be revised in a manner such that the judges who have heard more than fifty per cent of the arguments by the counsel of both the parties should be bound to declare the judgment on that matter instead of a new bench listening the case afresh. Even though the power to regulate the sittings of the court is an administrative power and does not afford any basis for regulating the mode of hearing of a case by a bench properly seized of it.
However, such an administrative exercise should be carried out efficiently with the objective of cases being disposed of promptly. This is in line with Article 37(d) of the Constitution which states that the state shall ensure inexpensive and expeditious justice.
Finally, the filing of frivolous cases to gain media publicity should be curtailed and judges should not entertain any cases that can be settled outside court.
Unnecessary litigation consumes significant judicial resources and serves very limited purpose. The Cost of Litigation Act 2017 implemented in Islamabad to get rid of frivolous litigation and lodging of false cases should be implemented in other provinces as well.
The greatest problem in Pakistan is the implementation of the law and guidelines. Thus, the question remains: Will judges and lawyers step up their game to ensure efficient and expeditious disposal of cases?
Published in The Express Tribune, April 20th, 2019.