The 18th Amendment to the Constitution of Pakistan has resulted in devolving a number of legislative subjects, including the procedural civil law, to the country’s provinces. At the beginning of this year, the Khyber Pakhtunkhwa government introduced various amendments to the Code of Civil Procedure-1908 to improve the state of civil justice in the province. These reforms were aimed at streamlining the litigation process after reducing the unnecessary delays and other procedural complexities during a civil trial. To ensure speedy justice, the courts were supposed to conclude a trial within a year. A few days ago, Federal Law Minister also hinted at amending the civil law to speed up the pace of pending cases. He announced a ‘three-phase’ mechanism to monitor civil cases to ensure their speedy disposition.

It is indeed a good thing that now the government seriously intends to improve the quality of the dispensation of justice in the country by introducing some judicial reforms. But unfortunately, our civil justice system has decayed and deteriorated to such an extent that these announced judicial reforms alone are unlikely to substantially improve this system. Indeed, we will have to introduce some fundamental and drastic reforms to this system. At present, most of the proposed judicial reforms are somehow revolving around removing the flaws and bottlenecks in our existing substantive and procedural laws rather than seriously evaluating and reviewing them. We are just proposing and devising various legal strategies and case management systems to make this justice system properly work and deliver. However, contrary to this practice, there should now be a fundamental reappraisal of our entire justice system, especially the civil justice system. For this very purpose, we certainly need to think out of the box. I personally believe there are some basal flaws in the very substructure upon which the entire superstructure of our civil justice system rests. Therefore, this system can’t be effectively reformed until and unless these foundational flaws are substantially rectified.

At present, there are prevailing two major justice systems in the world; adversarial system, and inquisitorial system. An adversarial system is a justice system where parties to a suit (adversaries) are required to plead and prove their own case before the court which passes judgment according to the law after going through the evidence produced by the parties. In this case, opposing sides bring pertinent and relevant information or evidence to the court while the judge primary acts as an impartial referee between them. In practice, litigants are represented by professional and qualified pleaders or advocates in the court. An inquisitorial system is anther justice system where a judge not only adjudicates on a case but also proactively takes part in the entire case proceedings. The court or part of the court is actively involved in investigating and discovering the facts of the case, whether favourable or unfavourable to either side. So, both systems primarily differ in terms of the nature and degree of the involvement of the court to decide a case.

Inquisitorial system is currently being used in most of the Civil Law countries e.g. the countries of mainland Europe, Latin America and Far East Asia. On the other side, adversarial system is prevalent in most of the Common Law countries, including United Kingdom, United States, and other Commonwealth countries. Pakistan, being a Common Law country, also adheres to adversarial system. Therefore, the Civil Procedure Code is essentially based on the principles of adversarial system which usually requires the active involvement of both parties to a suit at every phase or stage of the civil suit starting from summoning the other party to produce evidence in support of their respective claims or contentions.

Both adversarial and inquisitorial systems have pros and cons. An adversarial system is considered to be a fair and equitable justice system. It treats both parties to a suit equally by affording each party equal opportunity to present, plead and prove its case. However, at the same time, it is also a formal and complex system. Moreover, the inherent formalism of the Common Law just adds to its complexities. This system has just given rise to a long and expensive legal procedure to get justice. Sometimes, individuals exploit this system to infringe others’ civil rights by taking advantage of its technicalities and loopholes. This system is not ideally fit to dispense speedy and affordable justice. An inquisitorial system is generally criticized for overly empowering a judge who sometimes starts acting as an investigator, prosecutor and adjudicator simultaneously. Nevertheless, this system is capable of deciding a case expeditiously after doing away with unnecessary procedural formalities and technicalities. Inquisitorial proceedings cost to a litigant far less than that of adversarial one. Therefore, this system has an inherent capacity of dispensing inexpensive and expeditious justice.

Justice is usually personified as a blindfolded woman holding a pair of scales in one hand, and a sword in the other. This woman is identified as an ancient Greek goddess Themis, the Lady Justice. She has this scale to weigh the evidence. She has a sword to inflict punishment to wrongdoer if necessary. And apparently, this blindfold represents neutrality or impartiality on the part of Lady Justice while dispensing justice to people. As a matter of fact, Themis doesn’t wear a blindfold in her original depiction. But she has been depicting wearing a blindfolded since the 16th century. Probably this was done to harmonize her image with the underlying principles of adversarial justice system in the UK where a judge only acts as a neutral arbiter.

In Roman Mythology, the Roman goddess Justia is equivalent of the Greek goodness Themis. She often appears in a pair with another Greek goddess Prudentia holding a mirror and a snake. Prudentia is an allegorical personification of the “virtue” or “prudence”. Prudence was considered by the ancient Greeks, and later on by Christian philosophers, most notably Thomas Aquinas, as the “mother” of all virtues. In Scholastic philosophy, there are a number of elements of prudence; Memoria (accurate memory), Docilitas (open-mindedness), Intelligentsia (intelligence), Sollertia (quick-wittedness), Ratio (reasoning), Providentia (foresight), Circumspection (ability to take all relevant circumstances into account), and Caution (ability to mitigate risks). These elements of prudence can certainly be part of any effective and efficient justice system. Therefore, instead of unnecessarily blindfolding Themis to reinforce and rationalise an adversarial system, there should be evolved and enforced a pro-active justice system by synergising the attributes of both Justia and Prudentia.

Adversarial system originated in United Kingdom. Being a former British colony, Pakistan also inherited this system at the time of independence. Ever since, we have been adhering to this system unthinkingly and unquestioningly. A few years ago, Lord Chief Justice Thomas, the UK’s top judge, called for a radical rethink on the country’s adversarial justice system. He just proposed an inquisitorial system to better deal with the civil and family cases. It is high time for Pakistan to review and improve its civil justice system. This system direly needs extensive reforms and overhauling. Noticeably, adversarial system has miserably failed to deliver in Pakistan owing to multiple reasons. Therefore, we should incorporate some effective tools of the inquisitorial system into our civil justice system to enable it proactively deliver “inexpensive and expeditious” justice to the masses as promised by the Constitution of Pakistan.

(To be continued)

 

The writer is a lawyer and columnist based in Lahore.

mohsinraza.malik@ymail.com

@MohsinRazaMalik