LAST month, a news item published in this paper featured the Senate Committee’s recommendation for abolition of the intra-court appeal at the high court level, for the simple reason that it would reduce the burden on high court judges. The underlying issue with the current justice system lies on a different tangent altogether and the implementation of this recommendation will deny a right of appeal at the very outset to the citizens of Pakistan.
The intra-court appeal regime given under the Law Reforms Ordinance, 1972, confers a right upon a litigant dissatisfied by an order of the single bench of the high court to appeal against such an order before two or more judges of the high court.
This right is available only against the order passed in exercise of the constitutional jurisdiction, under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, or original civil jurisdiction conferred by any law. Once an order is passed by the single bench, the dissatisfied party has a right to approach the division bench of the high court where the entire controversy is meticulously re-examined at a minimal cost.
If this regime is abolished, a litigant aggrieved by the order of the single bench of the high court will be left with no choice but to file an appeal before the Supreme Court of Pakistan. This proves to be very costly and time-consuming as the Supreme Court is overburdened by the backlog of the cases pending before it.
The intra-court appeal regime should not be abolished.
It is reiterated that as the apex court only dilates upon questions of law, it is imperative that an aggrieved litigant is afforded with an intra-court appeal remedy to effectively seek redressal of the matter.
A litigant is confronted with numerous issues when appealing before the apex court. There are only a numbered exclusive high-profile advocates in the Pakistan legal fraternity, who are eligible to appear before the Supreme Court. The said lawyers own blue-chip law firms and charge an exorbitant professional fee which averages Rs2 million, which the general populace cannot afford.
Under Pakistan’s civil litigation system, a matter is brought before a civil judge, whose order is appealable before a district judge; which then is further appealable before the single bench of the high court. After exhausting these remedies there is no right of appeal available to the litigant (except the Supreme Court) and an intra-court appeal does not apply in such a situation.
Cases which are heard for the first time before the high court as a court of first instance, for eg a constitutional petition or a civil suit, are eligible to qualify for an intra-court appeal.
Abolition of the intra-court appeal will essentially deny the right of appeal to a litigant because one may only appeal before the Supreme Court in limited circumstances. The intra-court appeal brings a litigant at par with a litigant who initiated civil proceedings in the district courts.
In the United Kingdom, a decision of a county court is challenged in the high court, the same is then challenged in the court of appeal, which is finally challenged in the Supreme Court only if the matter pertains to public importance.
The UK Supreme Court only adjudicates an average number of 100 cases per year and I see no plausible reason as to why the Supreme Court of Pakistan should be saddled with unnecessary litigation. The main function of the apex court is to interpret the Constitution and statutes rather than engage in individual disputes.
Instead of expunging the intra-court appeal, the Senate Committee should propose reforming the legal system by appointing judicial officers strictly on merit basis. Vigorous training programmes coupled with higher educational standards must also be customary for all officers appointed in the judiciary.
Furthermore, the main regulatory statutes for any litigation matter, namely the Civil Procedure Code, 1908, Criminal Procedure Code 1898, and Limitation Act 1908 are in dire need of change and have not been amended since their codification. The most time-consuming step in any civil matter is summoning the defendant to the court which usually ranges from four months to a year, and this procedure has not been reformed for over a century. Cases pertaining to money matters should be fast-tracked and decided within a fixed period of time instead of being tried as any other complex civil dispute.
The intra-court appeal is a matter of right against the order passed by the single bench of the high court as a court of first instance. If this right is expunged, all litigants who intend to file constitutional petitions or civil cases in the high courts will be deprived of their basic right of appeal, as such right is only available before the Supreme Court under exceptional circumstances.
The writer is a barrister.
Twitter: @rajaadnankhan
Published in Dawn, January 19th, 2016