The civil and criminal justice system in Pakistan is confronted today with serious crises of abnormal delays. Delay in litigation of civil and criminal cases has become chronic and proverbial. The phenomenon is not restricted to Pakistan, it is rather historical and universal. It is inherent in every judicial system which meticulously guards against any injustice being done to an individual, in a civil dispute or criminal prosecution. A paramount principle of the criminal justice system is that an accused is punished only after his guilt is proved beyond a shadow of doubt. Similarly, justice demands that in the trial of a civil case, the dispute must be decided strictly in accordance with the law and on the principles of equity, justice and fair play. Such universally recognised and time-tested principles are in accordance with the injunctions of Islam as the Holy Quran ordains that Muslims must eschew injustice, coercion, and suppression.
In our country, a serious drawback of the administration of justice is delay. Delays invariably occur in the disposal of civil and criminal cases. It is normal for an ordinary civil suit to linger on for as long as two decades, and on the completion of the trial, perhaps another half a decade is required to ensure the execution of decree. In criminal cases also, the situation is quite dismal. Unusual delays occur in the disposal of cases by the courts. An example of unusual delays is manifested by the fact that, according to a rough figure, currently, more than 2/3rd of the jail inmates comprise of under-trial prisoners. Such phenomenon erodes people’s trust and confidence in the administration of justice.
Delays in the settlement of civil disputes, besides causing frustration to the litigant public, also hamper the socio-economic development of the society. It serves as a disincentive to foreign investment in our economy and affects our trade relations with foreign governments/multi-national companies.
The causes of backlog and delays are diverse and profound, arising due to factors both inside and outside courts, and legal/procedural gaps/lacunae. Justice delayed is, undoubtedly, justice denied. Consequently, it has always been the primary concern of civilised societies to address the issue of laws delays with a view to find ways and means of removing defects/deficiencies in the system of administration of justice.
It would be wrong to assume that the problem of backlog/delays has been totally neglected in the past. It has received government attention from time to time. Various Law Reform Commissions and Committees were constituted with a view to examine/analyse the causes of delays and suggest appropriate measures for reform. Such Commissions/Committees carried out an exhaustive examination of the procedural laws and rules and suggested appropriate measures for reform thereof. Some such recommendations were accepted by the Government and implemented through amendments in laws/rules. The Supreme Court and High Courts have always been reviewing their respective rules of procedure so as to ensure quick and inexpensive disposal of civil and criminal cases. From time to time, the High Courts issued administrative instructions to the subordinate courts for expeditious disposal of cases.
The reform of procedural law, however, has been a constant and continuous process. Laws need to be reviewed and reformed in keeping with the changing times so as to cope with the emerging realities. The expeditious disposal of cases is undoubtedly a laudable objective. However, it is not an end in itself, it is merely a means of an end, the end being the provision of prompt and inexpensive justice. It is indeed not delay per se which is objectionable but an unreasonable and unjustifiable delay which need to be checked. The requirements of justice demand that sufficient time and adequate opportunities should be made available to the litigant parties and accused persons to state their cases and put across their defence before the court of law. In the process delays may occur but it should be tolerated and condoned if it is in the interest of just and fair disposal of case. On the contrary, the tendency to haste and quick disposal of cases must be checked if it is likely to result in an unjust, unfair or arbitrary order or decision.
As mentioned earlier, the issue of backlog and delays in the civil and criminal administration of justice has been addressed in the past. For this purpose various Commissions/Committees were constituted which formulated comprehensive recommendations for reform.
S.A.Rehman Law Reform Commission 1958
This Commission examined the causes of delays in civil and criminal litigation and recommended appropriate amendments in the relevant laws. The Commission, however, chose not to suggest any radical change in the existing judicial system. The Government accepted its recommendations partly through appropriate amendments in the Civil Procedure Code 1908. Some such amendments, however, were later on withdrawn as they did not receive the approval of the members of the bench, bar and the general public.
Justice Hamoodur Rehman Law Reform Commission Report 1967-70
This Commission submitted a fairly comprehensive report on the subject of law delays in civil and criminal litigation. By and large, the Commission did not find any major fault with the existing legal system, hence refrained from suggesting any major overhaul or radical alteration of the system. The Commission listed its recommendations under 3 categories namely, recommendations for legislative action, strict application of existing laws/rules and administrative action involving financial expenditure on recruitment of the required additional judicial officers, ministerial staff and equipment such as typewriter to the court. Its recommendations pertaining to reform of the civil and criminal law, were duly accepted and implemented by the Government. No action, however, was taken with regard to its recommendation pertaining to increase in the number of judicial officers and provision of proper facilities in court rooms.
High Powered Law Reform Committee Report 1974
This High Powered Law Reform Committee was headed by the then Law Minister and included the Attorney General, a Judge of the Supreme Court, Chief Justices of the High Courts and the Law Secretary. This Committee gave recommendations with respect to increase in the number of judges, provision of adequate number of court rooms and proper accommodation to judicial officers and improvement in the working of investigation and prosecution agencies.
Law Committee for Recommending Measures for Speedy Disposal of Civil Litigation 1978
This Committee, constituted under the Chairmanship of Mr Justice S.Anwarul Haq, the Chief Justice of Pakistan, included the Attorney General and the 4 Chief Justices of the High Courts as members. This Committee also suggested recommendations for speedy disposal of litigation. It recommended, inter alia, increase in the number of judicial officers, provision of adequate number of court rooms and accommodation for judges, provision of adequate ministerial staff and stationary to courts and facilities for the training of judicial officers. Its recommendations requiring legislative action were accepted and implemented through an Ordinance (i.e. Ordinance X of 1980). However, its recommendations with regard to increase in number of judicial officers, provision of court rooms and accommodation for judicial officers, etc were ignored.
Committee on Islamisation of Laws and Establishment of Qazi Courts 1980
This Committee headed by Justice Salahuddin Ahmed, suggested various proposals for reform of civil justice system. It emphasised on the need for the training of judges and the provision of due facilities to judicial officers. The Committee also suggested some structural changes to the system of administration of justice. Its recommendations were as follows:
(a) The present adversary system should be replaced by Amicus Curiae System;
(b) Discretion of courts in the matter of frequent adjournments and of remand should be curtailed;
(c) Persons avoiding service of notice and process should be penalised;
(d) The procedure should not be regarded as an end in itself. The courts should not be a slave to it, but should be inspired to do justice;
(e) In civil cases, the courts should, from the very beginning, use its good offices to bring about a compromise between the parties;
(f) The appellate and revisional courts should not remand the cases in routine;
(g) Backlog of cases should be cleared by appointment of sufficient number of retired Judicial Officers;
(h) Judgment should immediately follow the completion of the hearing of a case. The judgment should be brief and to the point;
(i) Defects in pleadings to be immediately rectified without any formality.
These recommendations, however, remained un-implemented.
Commission on Reform of Civil Law 1993
This Commission was headed by the Chief Justice of Pakistan and comprised of the 4 Chief Justices of the High Courts. It was assigned the task of recommending provision for reform of the civil litigation. This Commission also, more or less, reiterated the views expressed by the earlier Commissions/Committees and stated that the existing procedural laws/rules are generally sound and needed no major surgery. The Commission blamed the successive governments for the apathy and neglect of the judiciary, and lack of adequate resources for improving the system of judicial administration in the country. The Commission, however, did point out certain defects/shortcomings in laws/rules/procedure and suggested appropriate measures for reform thereof. The Commission, accordingly, recommended measures for reform of the CPC including thorough scrutiny of pleadings, alternative means of service processing, reducing the period for submission of written statement, the system of continuous hearing, reduction in number of appeals and enhancement in the jurisdiction of small causes courts. Most of its recommendations were accepted and incorporated through an Ordinance (Ordinance XXXIII) of 1993 which was later on enacted into an Act of Parliament (Act XIV of 1994). The Commission’s recommendations with regard to the creation of a Federal Judicial System, increase in number of judicial officers and provision of proper facilities to them, however, were not implemented.
It would appear that procedural laws/rules in the country have been reviewed from time to time, and appropriate recommendations suggested to the Government for inexpensive and expeditious disposal of civil and criminal cases. It is obvious that the successive governments were somewhat reluctant to accept and honour the recommendations in entirety. Recommendations pertaining to reform of procedural laws/rules were generally accepted, however, hardly any step was taken with regard to the provision of financial resources required for increase in number of judicial officers, provision of adequate number of court rooms and allied facilities e.g. ministerial staff, typewriters, stationary, provision of accommodation and transport facilities to judicial officers, provision of library facility, etc etc.
SOURCE: Law and Justice Commission of Pakistan- Report on Criminal Justice System -PKLJC 22