NOT all persons go to court seeking justice. Some do so with the deliberate and concomitant intent of frustrating the ends of justice. The judicial apparatus, given its rigours, protracted procedures, and extensive appeal processes, is particularly susceptible to abuse by ‘litigants non-grata’ or vexatious litigants. In this essay, we shall focus on two types of litigants non grata in Pakistan — the state when it prosecutes in bad faith, and vexatious litigants in general.
The world over, prosecution is presumed to be undertaken in ‘good faith’. When evidence to the contrary emerges, the presumption must give way.
According to Hobbes, Locke, and Rousseau, in the ‘state of nature’, individuals had to enforce their own ‘natural rights’ through coercion and acts of vengeance. But this was a very inefficient model, which prompted Hobbes to famously describe the life of man in Leviathan as being “solitary, poor, nasty, brutish, and short”. Thus the ‘social contract’ ensued, giving rise to the sovereign with the prosecutorial powers of the individual transferred therewith. The sovereign acts through agents, deputies, and other officials when it decides to prosecute.
The Latin maxim omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium (everything is presumed right and solemn about this act until proven to the contrary) is a ‘presumption of regularity’ attached to official acts, including prosecutorial. In Pakistan, Article 129 of the Qanun-e-Shahadat Order, 1984, encapsulates the said presumption. Thus, when the prosecution decides to prosecute someone, the presumption applies. To dispel the presumption, one often has to undergo the rigours of a criminal trial.
Use of admonishing language isn’t enough.
The presumption has its origin in English common law, and gained a foothold as late as the 18th century, when public prosecutors came to be seen as “disinterested servants of the Crown”. Prior to this, prosecutions were largely private; both parties were seen as motivated adversaries. Hence, there was no presumption of good faith. Oscar Benavides, once president of Peru, would say “for my friends, everything — for my enemies, the law”. The notion underscores the abuse of the prosecutorial powers of the state in Third World countries.
Pakistan’s history reeks of politically motivated and malicious prosecutions. No political party which has been in power can faithfully claim that it has never indulged in the forbidden practice. Ultimate acquittal of a maliciously charged accused provides a sigh of relief to the innocent, but it can never be viewed as complete vindication, for neither the legal system nor the court can ever restore to the innocent his time spent in confinement, undo the mental agony and anguish he suffered, or wash away his reputational damage. Ray Donovan, once US secretary of labour, after being acquitted for fraud following a highly publicised trial, famously asked “Now where do I go to get my reputation back?”
While Pakistan’s courts have tried to adopt dynamic approaches to curb malicious prosecution, it is apparent that no judicial approach can effectively cure a department of prosecution when it stands weaponised. The US Department of Justice, with its partisan prosecutions under Donald Trump, bears testament to this. Conversely, there is no shortage of vexatious litigation on part of common citizens and the state alike in Pakistan.
Common citizens often file vexatious cases or defences and then drag those for years or decades as a calculated tactic to enjoy the usufruct and obstruct the ends
of justice. Despite Order XXIII, Rule 3 of the Supreme Court Rules, 1980, and Section 35-A ofthe Code of Civil Procedure, 1908, empowering the courts to impose costs for frivolous litigation, the powers are rarely invoked, and even when invoked, token costs seldom exceeding a hundred thousand are awarded, as seen in ‘Asma Haleem vs Abdul Haseeb Chaudhry’.
Similarly, the state never hastens to relinquish a frivolous defence either. In ‘Province of Sindh vs Ghulam Rasul, the Supreme Court held that “courts expect the government to be the noblest of litigants and would not engage in litigation in vain”. Half a century has elapsed since that pronouncement, but not much has changed. In ‘Province of Punjab vs Muhammad Tufail’,the Supreme Court held that “governments should litigate only where necessary, and the might of the state should not be employed to make an ordinary litigant run from pillar to post”.
It is about time the courts realise that with 2.2 million cases pending across Pakistan, the use of admonishing language in judgements is not enough to deter ‘litigants non-grata’; therefore, imposition of costs sufficient to negate the benefit of retaining the usufruct during lis-pendis has become a sine qua non.
The writer is a practising barrister.
Published in Dawn, November 3rd, 2025