Judicial reforms – 09 Aug 2022
Our civil justice system is marred with so many problems that it is finding it nearly impossible to effectively perform its tasks.
There are several major causes behind the dismal state of civil courts. They include: nominal litigation costs which do not deter false and frivolous litigation, lack of operation of perjury laws to deter witnesses and litigants from producing false evidence, oral or documentary, unnecessary adjournments owing to indifference towards case management system, and the lack of use of technology for dispute resolution.
It would not be an exaggeration to say that the only panacea is to overhaul the existing civil justice system through holistic reforms. The Code of Civil Procedure, 1908 (CPC), a century old instrument, is inefficient in coping with present-day litigious posers. It makes no use of technology for dispute resolution. The ‘case management’ provisions in the CPC are inadequate in expediting the resolution of backlog – commonly a tricky and most-neglected area of civil litigation. The cost of litigation scheme embodied in the CPC is unable to reduce the number of false and frivolous cases from dockets.
An efficacious utilization of limited judicial resources can make the system result-oriented. The lenient interpretation of certain provisions of the CPC is another inherent hurdle in the efficient operation of the civil justice system. The contours prescribed in the CPC as to time-limits on various stages of litigation, such as time for filing written statements, a list of witnesses, announcement of judgment, etc are not taken seriously.
Even breaches of such time-limits are condoned on the pretext of interest of justice. As a result, the backlog multiplies, and genuine causes requiring timely disposal get protracted unnecessarily. The system is silent on how to separate genuine cases from the entire lot to throw out non-genuine ones.
These ailments do have manifold repercussions. First, public trust in the system is irreparably eroding. Second, the filing of false and frivolous causes or defences remains undiscouraged, and third, there is no imminent deterrent against litigants or witnesses who make false claims or defences or even submit false evidence.
This predicament demands immediate legislative reforms as top priority to rebuild the system to meet the challenges of modern times. We need a rigorous cost of litigation regime to deter false and frivolous litigation. Equally needed is a punitive system to take perjurers to task. A regime of exemplary cost together with a strong operative system which punishes those who submit false evidence will help reform the civil justice system.
The cost of litigation regime focuses on imposing heavy cost on unnecessary adjournment to discourage unhealthy trend, imposing exemplary cost on non-compliance with statutory time-limits to make system result-oriented, imposing exemplary cost for false claims or defence, on the delinquent party to plug false litigation, burdening those who lost the case with full cost of litigation payable to winner – this cost may include lawyer and court fee. This will help mitigate false claims and defences, saving innocent litigants from unnecessary litigation, blackmailing and harassment at the hands of touts and professional litigants.
It is time to legislatively require all the courts to take on perjury as a fundamental social ailment. It will serve as a deterrent to disable litigants and witnesses from submitting false evidence and preparing forged documents. The law should provide that every judge shall immediately commence the summary trial of a perjurer for offence on the basis of evidence, recorded or produced in a civil case and to order thereby conviction of perjurer while delivering judgment on a civil case. It will help create a culture that perjury is a costly bargain.
The most important aspect of the civil justice system is the ‘case management system’, which refers to administrative and managerial skills of a judge to effectively handle litigation. The CPC embarks on ten major stages of litigation. It is a mandatory requirement in every suit as it is closely linked with time management to discourage adjournments and ensure timely dispute resolution.
A judge must ensure the complete service of process on parties within one month. Then he/she must hold meetings with parties and their counsels in the open court to pass a judicial order for the scheduling of the case.
Such order contains written directions like the receipt of all applications, replies received, disposal made, filing written statement, settlement of issues and filing list of witnesses within 30 days of the completion of service.
Such orders also direct cases which can be deposed of through summary judgement to be taken up within 15 days of the settlement of issues and to be disposed of accordingly; recording the entire evidence of one party in a fortnight of settlement of issues; recording evidence of adversary party in the next fortnight; ensuring completion of all steps for hearing of final arguments on a case within four months from date of institution; ensuring that parties shall complete arguments within one month of closure of evidence; facility that if counsel for parties are unable for any reason to argue, they shall file written arguments along with copies of case law within one month of closing evidence; facility that in case there be a need, the counsel may argue case via video link; and final decision that the case shall be disposed of by judgment within fortnight of completion of argumentation.
At the district and tehsil levels across Pakistan, the judiciary must set up more than one special court room duly equipped with technological facilities for hearing cases, recording evidence, examining and cross-examining witnesses and receiving documents.
All court rooms must be connected via the internet and video link to other such courts across the country and even foreign embassies or consulate generals. It will help expedite the disposal of cases which get adjourned due to the unavailability of counsel or witnesses.
The writer is a lawyer.