Carrying the message “Say no to litigation, and opt for mediation”, a large number of posters conspicuously displayed in the premises of civil courts in Lahore mark the formal launch of the ‘game changing’ Alternative Dispute Resolution (ADR) system in Punjab. Finally ordinary litigants are being persuaded to go for ‘judicial mediation’ after abandoning the cumbersome process of civil litigation. One can certainly not deny the role of an ADR system in improving the quality of dispensation of justice in any country. However, to me, these posters make a mockery of our mainstream judicial system. We are now promoting the alternative modes of dispute resolution since the mainstream civil justice system has apparently failed to deliver ‘inexpensive’ and ‘expeditious’ justice to the ordinary citizens in the country.

Against the backdrop of the ‘judicial murder’ of ZA Bhutto, some PPP politicos have been calling the criminal courts in the country “Kangaroo Courts”—a term loosely used to describe a judicial tribunal that blatantly disregards the recognised standards of law and justice. While disagreeing with this assertion, I personally believe that the phenomenon of delayed justice in Pakistan has somehow become the most prominent and detestable feature of our judicial system in general, and civil justice system in particular. So in this particular context, I sometimes dub our civil courts as ‘calendar courts’ by drawing an analogy between these courts and a typical yearly calendar. A calendar essentially bears dates, so do these courts. We often appear in a civil court on a fixed date only to get the ‘next date of hearing’, and nothing else. The primary activities of both complementary components of this judicial system, the adjudicator and pleader, often keep on revolving around a calendar during the proceedings. The former eagerly displays a calendar on an official table in the court room while the latter always keeps it with him/her in the form of a professional diary.

Before further elaborating this subject, I would like to share a personal experience to show how drastically our civil justice system has deteriorated. Some 3 years ago, I lodged a complaint with the FIA authorities in Lahore against certain LESCO officials for illegally transferring my industrial connection of electricity to someone else without my permission or knowledge in sheer violation of NEPRA rules and regulations. However, in order to frustrate and obstruct the FIA investigation process, the opposite party instantly secured a stay order after instituting a declaratory suit in a civil court in Lahore.

Upon knowing this civil suit, I also duly joined these proceedings and promptly submitted my legal reply in this case. During these proceedings, I realised that the ‘learned’ civil judge hardly knew anything about the NEPRA rules regarding the conditions of electricity supply. So I also assisted the said civil judge by providing him a copy of relevant NEPRA rules. However, despite my heated arguments, I could not get this frivolous stay order vacated. After one year, the opposite party moved an application to withdraw its suit to my extent just to keep me away from this case. Strangely, the civil judge instantly allowed this application even without hearing me, and ignoring altogether the fact that I was a fundamental party to this suit.

Unfortunately, after actively contesting this case for one year, I eventually became an alien to these proceedings. So I was left with no other legal option except to formally approach the court by moving an application under Order 1 Rule 10 of CPC to ‘re-implead’ me in this case as necessary party. But sadly, despite the lapse of more than one year period, this simple application is just in the middle of nowhere. The civil court is affording repeated opportunities to the opposite party to drag and delay these proceedings. Since the very first stage of this trial has not been concluded in two years, I can easily presume that this case would not be decided even in the next ten years. Certainly, if a judge can’t promptly decide a simple case of utility connection, how can he decide a complex property dispute involving diverse legal and factual questions?

If a practicing lawyer like me is miserably helpless and quite unable to get justice, we can just imagine the plight of ordinary litigants who have to face additional troubles and constraints while dealing with this judicial system. In fact, this judicial system actively supports and reinforces the wrongdoers instead of the wronged ones. A hapless litigant often gets nothing despite fighting a lifelong legal battle. Therefore, sometimes these courts look like mere mortar-and-brick buildings all meant for perpetuating injustice rather than dispensing justice. According to Rule of Law Index 2016 released by the World Justice Project, Pakistan stands at 106th position in terms of administration of civil justice among the 113 assessed countries. Certainly, it is an extremely deplorable state of affairs. Thus, currently, Pakistan’s civil justice system is one of the worsts in the world, and simply the worst in Asia.

The Code of Civil Procedure, 1908, is the bible of civil procedure in Pakistan. It essentially divides a civil trial in a number of stages or phases that generally start from instituting a civil suit and precede each other in a fixed and definite order e.g. the service of summons, submission of reply, framing of issues, evidence, arguments, and finally the pronouncement of judgment by a judge. The CPC has fixed the specific time periods within which a civil court is supposed to conclude the intended proceedings of each stage of this civil litigation. It also prescribes a number of penal measures against a party to the suit which fails to act as required by the court during the trial. So if this procedure is strictly followed by the civil court, a civil case can by all means be disposed of within 6 to 12 months.

Our entire judicial system, including the civil procedure, is typically an adversarial system. In fact, formalism and complexity are generally the inherent characteristics of an adversarial system. Therefore, this system is not ideally fit to dispense a speedy and affordable justice. Indeed we need to reform our civil procedure after incorporating some effective tools of the inquisitorial system to enable the judicial officers to play a proactive role in the dispensation of justice.

All the stakeholder of our judicial system, namely the judges and lawyers, are equally responsible for the current miserable state of this system. Bar politics and the culture of strikes adversely affected this system. On the other hand, incompetent and non-motivated judicial officers made things even worse. Perks and emoluments of the judges of both superior and lowers courts have increased many-fold over the last few years. Reportedly, now it is also being considered to make the salary structure of a district judge in Punjab at par with the provincial police chief or chief secretary. But sadly, there has yet not been witnessed any significance improvement in their performance and efficiency. At present, there hardly exists any effective and comprehensive mechanism for judicial accountability at any level of the judicial hierarchy.

The incumbent Chief Justice of Lahore High Court is indeed an energetic and dynamic person who is actively trying to improve the general state of the judicial system in the province. However, in the absence of befitting response and cooperation from the bench and the bar, his sincere efforts may fail to yield intended results. Without substantially reforming and extensively overhauling this judicial system, I am afraid all the endeavours to bring about positive change in this system would eventually result in a frustrating fiasco.