A day in court

10 Nov 2020

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The writer is a litigator based in Islamabad.
The writer is a litigator based in Islamabad.

ARBITRARY, whimsical and capricious. These are the adjectives that the courts in Pakistan, particularly the constitutional courts, throw around indicting the conduct of the executive, which in many instances is a product of unfettered discretion. But these adjectives also adequately explain the way hearings are scheduled and conducted in the courts of Pakistan.

On a particular date of scheduled hearing, there is absolutely no way of forecasting what may or may not happen. It remains far from certain that a litigant would get her day in court, even when the date of hearing of her case may have been scheduled far in advance.

So much has to go in the litigant’s favour: the lawyers must not be on a strike; the judge must not have disposed of her entire cause list for the day without prior notice; the litigant’s counsel must be available and not required before another court in a more pressing matter; the opposing counsel must not have sent a proxy to seek an adjournment. Then, it helps if the judge does not exercise her absolute discretion to reschedule the hearing for the next date due to, among other things, another ‘important’, time-consuming case fixed for that very day. The next date could be any date, and all this can repeat ad infinitum.

The adjudication over the life, liberty and property of an individual litigant is, therefore, held in limbo for unforeseeably long periods. The litigants often travel long distances to make an appearance at the court, only to find out at the very time of the hearing that the case, which has the potential of altering the course of their lives, is treated with such callous indifference. The consequences, naturally, are borne disproportionately by poor litigants. The court system, it seems, operates for the express purpose of wearing the litigants down, debasing and humiliating them, like real-life versions of Josef K. from Franz Kafka’s novel, The Trial.

It can take decades to get a judgement.

Meanwhile, sophisticated corporate entities, for whom time is of the essence, have little appetite for such a completely unpredictable and at times indiscernible mechanism of resolving disputes. There can be no ease of doing business and no real foreign investment unless businesses are able to reasonably rely on a dispute resolution mechanism that is efficient, predictable and reliable.

A jurisdiction in which a scheduled date of hearing is manipulable in so many different ways necessarily fails to instil confidence in good-faith litigants. In fact, our court system, the way it teeters — as opposed to functioning — ends up rewarding the non bona fide litigant. It is often the non bona fide litigant who has an incentive to procure an injunctive relief order, known as a ‘stay’. Under the cover of this order, the only incentive that the litigant and her counsel has is to prolong the proceedings indefinitely.

With the court system having developed a huge tolerance for exceptional delays, it does not require a maestro lawyer to keep a particular matter pending, with no end in sight. The process of the court ends up serving the conniving, along with those who have deep pockets, which allows them to outlast their opponents in these vacuous repeated interactions with the courts.

That the courts in Pakistan take eons to resolve disputes is not some classified information. The litigants, along with both lawyers and judges in this region, have bemoaned the state of affairs since ages. Quick fixes have been proposed. Time frames have been enacted, but then not enforced. We are where we were, and not much has changed. Sadly, it still takes decades to finally get a judgement from the courts.

But this is not a kind of problem that requires an original, groundbreaking discovery. Minor shifts in attitudes can do wonders. As public officials drawing salaries from the public exchequer, it is imperative for the judges to respect the litigants’ and their counsels’ time.

If a judge foresees a busy schedule ahead, which would not allow her to be able to hear the cases on a scheduled date, litigants and their counsel can be notified beforehand. Similarly, if the judge and one side are prepared to proceed with the case, the opposing counsel should not be allowed to seek an adjournment without providing a timely prior notice. Adjournments needlessly waste the resources of the court. They also make the entire system unpredictable.

Before a litigation commences, both parties can have a scheduling conference, in which they decide the time frame for their matter to proceed. The conferences can set out the filing dates and the dates for arguments. Meanwhile, deviations are to be allowed only in exceptional circumstances.

This current arbitrary system of scheduling hearings, only to reschedule ad infinitum, must yield to a system that delivers within a predictable time frame. A litigant, after all, deserves her actual day in court.

The writer is a litigator based in Islamabad.

Published in Dawn, November 10th, 2020