Wednesday, February 7, 2018

Business Recorder editorial Feb 7, 2018

A dysfunctional justice system

The federal cabinet, in a meeting chaired by Prime Minister Shahid Khaqan Abbasi, has approved the promulgation of the Costs of Litigation Act 2017 to ensure dispensation of inexpensive justice to litigants. The Act will come into force on March 1, 2018. High and unaffordable costs of litigation are but one facet of our justice system, which for all intents and purposes may be described as dysfunctional. A study conducted by the Supreme Court (SC) on the orders of former Chief Justice of Pakistan (CJP) Jawwad S Khwaja has revealed the startling fact that it takes an average of 25 years for a case to be decided. That revelation is bad enough but the other day a report stated that the SC had finally disposed of a case after 100 years! The findings of the SC study quoted above became the foundation for a joint petition by several lawyers before the apex court asking the National Judiciary Policy Making Committee to revise the national judicial policy and devise new rules for the lower courts to expedite citizens’ access to justice. Another study by one of these petitioners discovered that in Punjab’s civil courts, a case on average takes over three years and 58 hearings to be finally resolved. The petitioners have requested time limits be imposed on the lower courts to decide suits, petitions and appeals and activation of the high courts’ oversight role in ensuring access to justice. Independently of this, the Khyber Pakhtunkhwa government has started a campaign of advertisements claiming civil cases will henceforth be concluded in maximum one year. Our broken legal system compounds and prolongs the misery of litigants, not to mention exacerbating the costs of pursuing cases. It is also corrupt and inefficient, with the situation in the lower courts being described as dire. With over two million pending cases, out of turn taking up of cases with political hues by the courts using suo motu powers makes the denial of justice because of unconscionable delays that much worse. The strength of judges in the judicial system has failed to keep pace with a growing population. As a result, overburdened judges prefer to adjourn cases to avoid extended hearings. Lawyers on the other hand seek endless continuances. All this discourages petitioners and hikes up the costs of cases beyond affordability. Protracted court proceedings can also sometimes pose safety and security risks for petitioners and witnesses. This chaotic picture of our judicial system suggests a thorough overhaul is long overdue.

An insight into the complicated and fraught nature of the task of such an overhaul was provided by remarks by the outgoing Chief Justice Mansoor Ali Shah of the Lahore High Court (LHC) during a full court reference on Justice Shah being elevated to the SC. He said change or reform always runs afoul of the vested interests of an internal mafia in support of the status quo. The example he quoted was that of a pending Punjab Information Technology Board offer to develop a case management system that he accepted on taking over as the chief justice of the LHC. He revealed that although the Punjab government independently awarded a Rs 380 million contract for the purpose, some elements started a propaganda campaign that the contract had been unfairly given to a relative of Justice Shah. This revelation merely serves to underline how the present judicial system, with its built in interminable delays, adjournments and even stay orders that assume permanence, offers opportunities and openings for vested interests to reap the low hanging fruit of corrupt practices. Apart from the plea of the petitioners with which this editorial began, it is necessary for the superior judiciary, executive and, where necessary legislature, to put their heads together to reform the creaking judicial system along modern lines and ensure that the maxim ‘justice delayed is justice denied’ no longer can be applied to what our litigants and citizens have to suffer at present.

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