KARACHI: A variety of litigations — from the civic violation to marriage and divorce, property ownership to intellectual rights — might cost the contesting parties less than ‘one-time meal’ costs at a dhaba.

However, what still makes thousands of the litigants suffer are the heavy fees charged by legal professionals coupled with the additional ‘chae-pani’.

So is the case of 54-year-old litigant Rehmatullah Shaikh, who recently died of cardiac arrest inside the courtroom of the Sindh High Court, where he had filed a constitutional petition against alleged fraudulent sale of 25 acres of land situated in Surjani Town to him by a private person.

The deceased claimed to have spent Rs10m over the two or three years of litigation for the property worth Rs3m

On Dec 18, as the ageing litigant sat in the courtroom, waiting for his case to be taken up, he had a cardiac arrest that proved fatal and claimed his life.

“The deceased claimed to have spent around Rs10 million over the two or three years of litigating for the property worth of Rs3 million,” Advocate Shah Muhammad Maitlo, counsel for Shaikh, told Dawn.

“Now, he had no money and even I would bear the routine expenses out of my own pocket on humanitarian grounds,” added the lawyer admitting that the litigation would have incurred him huge expenses, including the professional fee.

A glance at the law – Court Fees Act, 1870 – under which the court fees are regulated shows how convenient its British authors have made it for the citizens to seek justice from the courts.

According to government-fixed fees rates, filing a case involving property or marriage disputes costs the petitioner Rs17 – Rs15 for a plaint and Rs2 for an affidavit.

In the high court, filing a constitutional petition costs Rs100 along with additional charges of Rs5 for a lawyer to file the power of attorney and Rs30 to file an affidavit. The review appeal costs half of what one pays for the original petition.

Even, approaching the Supreme Court is not overly expensive. Under the fees act, a constitutional petition can be filed in the apex court by spending Rs200 each. However, a review plea costs around Rs15,000.

Free criminal litigation

Interestingly, there is absolutely no official fee on instituting a criminal case right from the district courts and appealing to the high courts and the Supreme Court.

“Since a criminal case is always filed against the state, so there is no court fee charged,” says a senior lawyer Muhammad Farooq. “The logic is to put no burden on suspects,” he adds.

Family cases

The fee to file a case in the family courts is Rs17 each – Rs15 to file a lawsuit and Rs2 for filing power of attorney by the lawyer.

Although the country’s constitution gives the winning litigant the right to claim the cost incurred on the proceedings in civil cases, this right is rarely exercised except in a few hundred cases in which people claim damages in case of financial or physical harm.

Professional fee regulation

Although the colonial era law is still helping millions to pay less on instituting cases in the courts of law, litigants regret that successive governments have failed to regulate fees charged by different professionals.

Karachi’s legal fraternity challenged in the Sindh High Court the imposition of six per cent general sales tax imposed by the Sindh government in its annual budget announced in June 2013.

Price (less) movement

The backlog of the cases – including those already pending in the courts countrywide for two to three decades – had grown multi-fold during the two years of the legal fraternity’s historic movement for supremacy of the constitution and independence of the judiciary.

Millions of litigants countrywide like Rehmatullah Shaikh, who had suffered on account of frequent boycotts of legal proceedings and strikes at the courts by protesting lawyers, were promised ‘speedy and cheap justice’ in return.

Nine years after the judiciary gained its independence, with sacked judges back in courtrooms and the supremacy of the constitution restored, litigants still feel that cheap justice appear to be an elusive dream.

“We suffered heavily due to the judicial crisis. But, after returning to the courts the lawyers have increased their professional fees manifold,” said another litigant, who did not wish to be named since a very senior lawyer is pleading his property case.

The chiefs of the country’s top bodies that regulate and represent the legal fraternity unanimously expressed their dismay over the exorbitant fees charged by their colleagues from litigants, but gave split opinion over the issue of professional fee regulation.

“In Pakistan, there is no mechanism to regulate the profession of the lawyers,” Amanullah Kanrani, the recently elected president of the Supreme Court Bar Association, told Dawn.

“It is up to the lawyer to either charge any fee or demand absolutely no fee,” he maintained. Citing examples of some western countries, he said in “welfare states” the lawyers’ professional fees are paid by the state on behalf of the litigants and that no income tax is levied on such lawyers’ fee.

Asked how to deal with the issue in the country, the lawyers’ top representative body’s chief opined that the judiciary must grow stronger and should give relief to junior lawyers instead of considering face value of the senior ones.

“This would help many junior lawyers also become big names like Aitzaz Ahsan and ultimately the issue (of heavy fees) would be resolved.”

The vice-chairman of the Pakistan Bar Council, Kamran Murtaza, supported the idea of regulating the professional fee.

“This is an ethical issue, but there should a maximum limit of the professional fee for the lawyers to be charged,” he opined.

“A litigant almost spends the earnings of his life when he/she reaches us in the Supreme Court right from the district judiciary,” said Mr Murtaza, himself a lawyer practicing in the apex court.

Free legal aid

Under the provisions of the Legal Practitioners Act, 1976, each district bar association is bound to provide free legal aid to deserving litigants.

In Karachi, a metropolis city comprising six districts, the bar associations had been strongly opposing operations of non-governmental organisations engaged in providing free legal aid to the poor, needy prisoners and litigants at the subordinate courts as well as prisons.

The representatives of the Karachi Bar Association and the Sindh High Court Bar Association claimed that they were providing free legal assistance in dozens of cases in which the litigants could afford to hire a professional lawyer.

This number appeared to be too little in the face of over 100,000 cases pending disposal in Sindh’s judiciary – the second highest rate of the litigations after Punjab.

Of them the costly litigations would have left many, like Rehmatullah Shaikh, unable to afford a ‘one-time meal’ at the dhaba.

Published in Dawn, December 28th, 2018