IN 1996, after extensive consultations with a law review committee of which he was the head, Lord Woolf, the then second-most senior judge in England and Wales, recommended wide-ranging reform of the civil procedure, with the aim of making civil proceedings cheaper, quicker and easier to understand for non-lawyers.
The British parliament implemented these reforms by enacting the Civil Procedure Act 1997. This act mandated a Civil Procedure Rule Committee and gave it the power to make Civil Procedure Rules, which would govern all civil proceedings. By April 1998, the Rule Committee had made these rules and in doing so had entirely revamped the manner in which civil proceedings were managed in the country.
Whilst the rules themselves minutely cover the various permutations of civil proceedings, it is their `overriding objective` that is of particular interest. The preamble of the objective is simple and self-evident: to enable courts to deal with cases justly. The definition of justice is, however, multi-faceted.
Courts are required to ensure (a) that the parties to a case are on an equal footing, (b) save expense, (c) deal with cases in ways which are proportionate to the amount of money involved, the importance and complexity of the case, the financial position of each party, (d) allot to the case an appropriate share of the court`s resources (taking into account the need to allot resources to other cases) and, (e) most importantly, to ensure that cases are dealt with “expeditiously and fairly”. Eager to take its place in the ranks of the just, the Pakistani superior judiciary often speaks of the importance of and need for expeditious disposal of cases. Taking cue from these speeches, the National Judicial Policy-Making Committee (NJPMC) ensures not only that the National Judicial Policy emphasises the need for quick disposal of cases but also that a working group at the now annually held National Judicial Conference addresses the issue.
Furthermore, the Federal Judicial Academy dutifully arranges courses to educate the lower judiciary in this regard. The lower judiciary in particular, either persuaded, chastised or coerced by these dictates, scurries to dispose of cases pending in their courts, thereby enabling the NJPMC to proudly declare at the next judicial conference that the rate of disposal of cases, particularly at the level of the lower judiciary, has significantly increased.
The efforts of the Pakistani justice system to curb delay, though laudable are not entirely enough, because they do not address the issues inherent in the underlying system. Not only is the civil judiciary fettered by a Civil Procedure Code dating back to 1908 (which has almost never been updated) but also feels an acute sense of powerlessness, derived as much from the attitude of lawyers in the districts as it is from the lack of resources available to them.
The lower judiciary particularly claims to be helpless in the face of lawyers` demands for adjournments (at times due to lack of preparation and more often due to the fact that their clients pay them per hearing) which if not granted are reinforced and reiterated by pressure tactics and in recent times, even violence.
Although there is merit in what the judges say about lawyers` lax approach towards their cases and their newfound aggression, it does not satisfactorily explain why they feel compelled to abdicate their authority quite so completely. Judges and court officials have an inherent power to regulate the affairs of the court, both in the courtroom and otherwise and any alleged abuse of process by the lawyers can only take place, if not with their express or tacit consent then certainly due to their negligence.
However, the judiciary generally and the lower judiciary particularly, seems to lack the conviction that it is in fact the master of the courtrooms and in some measure appears to have fallen prey to valuing self-preservation and appeasement above justice.
A way out of this morass is to support the judges with a mechanism designed to overcome delay. The United Kingdom, Canada, Australia and United States, but also India where the court culture is largely similar to ours, have adopted case management systems whereby judges rather than lawyers set a timetable for the milestones in a case and ensure that the case progresses according to this timetable.
Introducing such a system in Pakistan however, would require a diametric shift in the thinking of the judiciary — which is presently content to adopt a more passive role and to leave the management of a case to the lawyers — as well as the lawyers, who are likely to view this as an encroachment on their rights.
The rationale for such a case management system is perhaps best expressed by Justice M. Jagannadha Rao, a former judge of the Supreme Court of India and a former chairman of the Law Commission of India: it is his view that trial judges waste considerable judicial time by calling out all listed cases even for purely administrative tasks (which may be easily delegated to court officials) and are thereby mentally exhausted by the time they take up judicial work.
The same is true for Pakistan. Here too, the daily cause lists are large and each case is pedantically called out often only to discover that the relevant lawyer, accustomed as he is to his case not proceeding, is either not present or not prepared. Whilst a case management system rigorously imposed will considerably assist in addressing systemic delay in the legal system, it is advisable that such measure may only be adopted after proper investigation as to the most appropriate model for Pakistan and due consultation with the lawyers whose cooperation and understanding is a necessary precondition for the success of any such scheme.
It is important, however, to underscore, that true reform is only possible if the entire legal community not only accepts, in principle, that its overriding objective is to deliver justice without discrimination but also demonstrates the will to bring about the necessary change. Without this foundation, any talk of reform is nothing more than verbiage.
The writer is a barrister practising in Islamabad.