ISLAMABAD - Chief Justice Mian Saqib Nisar on Tuesday deplored the recalcitrant attitude of the legal fraternity to bring reforms in the justice system of the country.
“I am upset that my community never cooperated with me despite several requests to prominent legal experts of this court for proposals to bring reforms in country’s justice system but no one responded to me positively. How can I bring reforms alone,” the chief justice regretted over the cold response from the Pakistan Bar Council and the Supreme Court Bar Association while hearing a petition seeking systematic reforms in country’s justice system.
“I even fear that I will retire with this disgrace [of not bringing reforms to the justice system of the country],” the chief justice lamented, adding that he personally talked to many lawyers to come forward with proposals for reforms in the justice system but no one paid a heed to it.
The chief justice while heading a two-judge bench further observed that he asked the lawyers for proposals so that it may be sent to the legislature for an amendment to the law and added that only this way the gap between the judiciary and Parliament could be bridged.
The petition filed by five young lawyers led by Advocate Umer Gillani has requested the top court to issue directives to high courts for framing rules to eradicate all the difficulties, which come in the way of a common litigant from lower courts to the apex courts.
The petition stated that “access to justice must be considered a fundamental right because it was an essential corollary of all the rights granted in the Constitution because if a citizen cannot seek enforcement of his legal rights within a reasonable amount of time and at an affordable price, all other rights promised in the Constitution will become mere hollow promises”.
Advocate Gillani also cited his research in the petition which states that “the total shelf-life of an average case in the civil courts of Punjab was around 37.3 months”. “The average was much higher for suits for specific performance of contracts and suits for declaration and shorter for family-related matters.”
The petition said that the study also found that “from institution onwards, all the way to the passing of decree, an average case requires around 58 hearings”.
“However, from the general scheme of the 1973 Constitution, it appears that the primary responsibility of enforcing the fundamental right of access to justice is that of “the Judicature” itself,” the petition said.
“For most categories of suits, petitions, revisions and appeals, no time-limit has been provided in statutes framed by Parliament. The High Courts can, through rules, provide timelines for such categories of suits and suits but have yet to do so.”
It further stated that “the Code of Civil Procedure (CPC) does not make it mandatory for a trial court to develop a state-wide case schedule for a trial at the very start of proceeding, although Order IX-A allows the court to do. It added that the high court could provide timelines for above-mentioned categories of suits through rules”.
Regarding rules for imposing costs upon parties for engaging in frivolous litigation and dilatory tactics, the petition stated that “the CPC had always vested the court with tremendous discretion for the imposition of costs of litigation”.
“There is hardly a decree issued by the courts in this country where actual costs of litigation are awarded to the losing party; likewise, it is rare to find any elaborate judicial reasoning in judgments about why no order as to costs” has been made.”
It said that “the high courts had not framed any rules to structure the exercise of this discretion with regard to the imposition of costs.”
It further stated that the courts had been vested with the exclusive
Israr ahmed
Rawalpindi - Former interior minister Ch Nisar Ali Khan on Tuesday said he would not go to Lahore to welcome ex-premier Mian Nawaz Sharif upon his return to Pakistan from United Kingdom on July 13, 2018.
“I will not go to Lahore to accord welcome to former president of party Mian Nawaz Sharif even if I was a part of PML-N,’ he said at a presser held in Taxila.
Chaudhry Nisar said that Mian Nawaz Sharif has been giving a lollypop to innocent people of Pakistan by claiming to give respect to vote but the truth is that he himself never paid any respect to his voters.
He said Mian Nawaz Sharif was quite lucky that he ran the country as PM thrice besides retaining office of Chief Minister Punjab once. He said his brother Mian Shehbaz Sharif was also elected as CM. Nisar stressed that he had advised Mian Nawaz not to confront with state institutions but he did not put his ears and faced disqualification. “I don’t think there any wrong advice for which Mian Nawaz Sharif stabbed me in the back,” he said. He said he would soon reveal why he quit PML-N because of Mian Nawaz Sharif and his daughter Maryam Nawaz.
Chaudhry Nisar, who is contesting general elections from four seats as an independent candidate, said the arrests made by NAB are not a good sign and would make the elections controversial.
“I was the first person who condemned arrest of PML-N candidate Engineer Qamar ul Islam Raja by NAB,” he said. Nisar said he is not going to introduce any jeep group rather it was he who liked and requested election commission of Pakistan to allot him jeep as election symbol. He also denied his contact with any independent candidate for support in general elections 2018.
He said being interior minister he hosted a farewell dinner in honour of former DG ISI Gen (retd) Zaheer ul Islam with permission of the than prime minister of Pakistan Mian Nawaz Sharif. “But Mian Nawaz Sharif never expressed his apprehensions with me regarding the dinner in honour of former spy agency chief,” he said. Pakistan is facing strategic, economical and political threats but nobody is paying heed, he said.
He said he is running an election campaign in four constituencies to gain public support to win general elections 2018.
power of initiating prosecutions for penal provisions related to perjury under Section 195 of the Code of Criminal Procedure (CrPC).
“The high courts have not framed any rules to structure the exercise of this power,” the petition stated regarding perjury.
The petition stated that “directions may be issued for strictly imposing costs of litigation in order to regulate the role of litigants and for framing rules for this purpose”.
“The only way to litigants can be prevented from instituting false cases and from engaging in dilatory tactics is by strictly enforcing penalties against those instituting false cases and employing delaying tactics.”
“Section 35 of the Code of Civil Procedure, 1908 provides for the imposition of actual costs upon the losing party. In 1922, Section 35A, which provides for punitive costs, was added to the CPC with the aim of strengthening this provision.”
“One of the reasons why judges of lower courts might be reluctant to impose cost is because of the absence of clear and reasonably stringent rules framed by the high courts for structuring judicial discretion in the matter,” it said.
The petition also prayed that the top court may issue directions to the high courts to make fresh rules under Article 202 of the Constitution and Section 122 of the CPC for the imposition of costs and set up a monitoring mechanism to ensure that the rules regarding costs are enforced.
“With a view of ensuring the integrity of evidence of witnesses, Section 14 of Oath Act, 1873 makes it obligatory for every person giving evidence on any subject before any Court or person to state the truth on such subject.”
“Section 191 of Pakistan Penal Code, 1860 (“PPC”) makes the act of giving of false evidence (commonly known as “perjury”) a defined offence and Sections 193, 194 and 195 of PPC prescribe severe punishment for those witnesses who give false evidence in a court of law,” the petition said.
The petitioner stated that the on-ground reality was that the courts of Pakistan had largely abdicated their duty to enforce the penal provisions.
“Neither have the high courts made any effective rules for curtailing perjury nor have they set up any monitoring and evaluation system for perjury prosecutions,” it contends.
The petition requested the top court to issue stern directions to the high courts to ensure that penal provisions again perjury are strictly enforced by them and by the courts and tribunals subordinate to them.
“It is humbly prayed that the Supreme Court may issue directions to the high courts to frame rules for disciplining such officers of the court who abuse the process of the court and obstruct the dispensation of justice.”
“The Supreme Court may kindly direct the high courts to formulate rule to provide a well-thought-out maximum time limit for disposal of those types of suits where no such time limit has been provided in statutes.”
“Likewise, the high courts should be directed to formulate rule provide well-thought-out stage-wise time limits for disposal of those stages of trial where no such time limit has been provided in statutes.”
The petition contended that the appellate courts were one of the biggest contributors to delay adding that at every stage of the trial, the litigants who stand to benefit from delays tried to make recourse to appellate and revisional forums for stalling the trial proceedings.
“The only way such conduct can be prevented is if appellate and revisional courts heavily penalize any litigant who is found to be trying to abuse their jurisdiction to stall the progress of trial courts.”
It further contended that reducing the role of appellate and revisional courts was not only a pragmatic step required for reducing a delay, it was also a corollary of the constitutional requirement for ensuring the “independence of the judiciary”.
It contended, “while emphasizing the principle of independence of the judiciary, the superior courts must realize that this principle does not only mean that a judge should be secured from the influence of members of the executive or of the general public; it also means that a judge should be secured from the undue influence, intimidation or temptation of those who sit higher than him or her in the judicial hierarchy.”
Law and Justice Commission of Pakistan, National Judicial Policy Making Committee, the federal government, provincial governments, registrars of the high courts and other concerned had been made respondents.
After a brief hearing, the bench appreciated the intentions of young lawyers and directed the Additional Attorney General Nayyar Rizvi and petitioners to sit and frame brief recommendations on these issues.