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December 3, 2020

Rule of law as ‘blackmail’


December 3, 2020

Literature on the justice system in Pakistan states that litigants often use delay as a strategy in their court cases to impose costs on the opposing parties.

Basically, rule of law is used as a tool to ‘blackmail’ opponents. This happens in cases in front of the lower judiciary; and also takes place in national politics as we saw in the alleged IG kidnapping case in Sindh a few weeks ago in an episode euphemistically known as the ‘Karachi incident’.

Rule of law has become so dysfunctional that it is used as a blackmailing tool from the lower to the higher levels of socio-political arenas. How to fix this broken system? Osama Siddique wrote an exhaustive report on ‘Caseflow Management in Courts in Punjab’, with outstanding analysis of primary data in 2016 as part of the European Union’s Punjab Access to Justice Project and we are going to refer to it today in this article.

The basic concept of ‘caseflow management’ is that the court system needs an administrative and management arm that directs and monitors the dispensation of justice on the basis of data review. Court proceedings are haphazardly managed in the present system, driven by contending parties and their lawyers and inconsistently monitored by members of inspection teams of high courts. In the present system, the judge does not control the court proceedings effectively; and other stakeholders find plenty of opportunities for delay.

According to Siddique, “Caseflow Management involves (but is not limited to) the entire set of actions that a court takes to monitor and supervise the progress of cases, from initiation to conclusion, including organisation and management of daily dockets, setting calendars and time standards, establishing case processing tracks, management of individual cases, management of the court’s overall pending caseload, vision-setting and strategic planning, budgeting and resource utilisation, and overall judicial policymaking, goal-setting and leadership.”

There is a need to move away from the textual emphasis to a process-driven review of the system. Modern caseflow management concepts are largely missing from the court system in Punjab (and also the rest of Pakistan). While there are some statutory guidelines by the high court in terms of rules, orders, and directions to give timelines for stage-wise progression of cases, they are not adequate. Certain stages of a case, such as serving the summons, still take an inordinately long time.

The National Judicial Policy (NJP) also sets overall timelines for the civil and criminal cases’ completion. However, in these guidelines the ‘age’ of the case seems to be the main criterion – and the burden of responsibility is on ‘individual’ judges rather than the institution as a whole. It creates “perverse incentives” because to meet the case disposal targets, the judges make progress on less complex cases as more complex cases take more time and are not differentiated in the prevalent guidelines.

Adjournments are rife in court cases and stay applications elongate the court proceedings. However, they are not dealt with the prevalent management of the court system. Lawyers also play a crucial role in delaying the proceedings of the cases to increase their earnings; they also resist and block any judicial reform efforts. Yet, little effort has been made to neutralize this negative role of the bar.

The report’s primary data collection was done in three districts of Multan, Muzaffargarh, and Bahawalpur in Punjab. One of the strong findings is that only 25 percent of civil cases and 12 percent of criminal cases were decided on ‘merits’ and availed the full legal recourse. Other cases were disposed of in earlier stages as a result of them being withdrawn or as a result of compromise etc. The pre-trial scrutiny of cases is really weak. Unlike modern caseflow management principles, where there is adequate pre-trial scrutiny of cases to avoid frivolous litigation, both pre and post trial scrutiny are terribly weak over here. Systematic data collection and analysis is almost non-existent and court records are in a shambolic state. Criminal cases have very weak investigation and prosecution.

As practised in countries with a functional justice system, there is a need to impose costs and penalize the delay. That is not done; hence, delay is used as a strategy to deny justice by the contending parties and their lawyers.

There is no single, dynamic, coordinated and integrated caseflow management document that ties all the ends for the smooth flow of court procedures. Rather, the prevalent guidelines are thinly “spread across the Civil Code, the Criminal Code, other applicable procedural laws, the Lahore High Court (LHC) Rules and Orders, relevant judgements of the Supreme Court and the high courts, and administrative directions, notifications and instructions of the LHC of very different vintage.”

There is also a need to re-examine and update the outdated current rules and aspects of court supervision and replace them with the adoption of rule-based unified systems with new rules to fill the existing gaps. New filing formats also need to be introduced where the bulk of required information can be provided. The written evidence should also be accepted. Right now, so much time is wasted on gathering oral evidence. Similarly, technology and audio-visual tools should be used to expedite the proceedings.

The judicial policy should establish ‘judicial control’ over the deliberations of court proceedings. There should also be institutionalization of a ‘case screening approach’. There is also a need for a framework for ‘stage-wise times’ for categories of different cases. Continuous management and monitoring of cases is required.

As a follow-up of the report, the Lahore High Court has deliberated amendments to civil and criminal procedures in the last two years. However, they are not implemented yet. It also remains to be seen how much the new rules are diluted from the recommendations of the report.

The writer is an Islamabad-based social scientist.

Email: [email protected]