The enigma of judicial hold-ups | Political economics
may God save you from the police and the courts” has become one of the most common prayers in Pakistan. Why is that? Because legal battles affect litigants in many ways, socially and economically. We can perhaps understand why justice is expensive in our country, but why are there unnecessary delays? Let me explain.
The institutional mechanisms and organizational setup of the Pakistani justice system require several formalities disguised as proper procedures or codes of conduct for justice. Litigants also have to pay various costs, including attorney fees, court costs, documentation costs, etc.
The delay in the execution of justice has reached a point where it has become a factor of injustice. The volume of the backlog, gaps and complexity in procedural law and the case management system are some of the factors that delay and prevent access to justice. The judiciary is overloaded, slow and not easily accessible to everyone.
The slowness of legal proceedings indirectly favors those who are financially sound. It takes years to come to a conclusion, that too with gaps. Poor people are often forced to walk away from financially strong parties because they often cannot afford the costs. Thus, they often drop their cases with unconditional apologies or settle out of court, most often against their will.
Unnecessary delays, at least in civil cases, can be approached from two perspectives: one unintentional and the other intentional. Unintentional delays can be checked by revisiting our legal system – perhaps more appropriate for ancient times but not for modern lives. Intentional delays must be sanctioned by effective enforcement.
The current civil litigation regime in Pakistan is governed by the Code of Civil Procedure promulgated in 1908. No serious attempt has been made to modify the rules of procedure to suit current needs. Much of the delay is due to non-compliance with the provisions of the Code of Civil Procedure, which compromises the speedy settlement of cases. After a complaint has been filed, processing fees are often not paid immediately. Consequently, the summons to the defendant is not served on time. After the defendant files his appearance, his attorney often asks for lengthy adjournments to file written statements. Once the pleadings are closed, comes the stage of producing the supporting documents before the disputes are settled. Very often, no documentary evidence is presented at this stage. The provisions relating to the discovery and inspection of documents and the service of interrogations are little used.
The delays in the administration of justice have reached a point where they have become a factor of injustice. The volume of the backlog, gaps and complexity in procedural law and the case management system are some of the factors that delay and prevent access to justice. The judiciary is overloaded, slow and not easily accessible to all.
If these provisions are used properly, the disagreement between the parties can often be ironed out before a case comes to trial. Instead, more often than not, when the lawsuit goes to trial, attorneys sit down in court, open the case files, probably for the first time, and laboriously begin to prepare lists of documents. Countless hours are lost in this way.
The Code of Civil Procedure 1908 requires the defendant to submit a written statement within a specified time. In most cases, the defendant intentionally misses the deadline for filing such a statement. Rather, claims are filed before written statements are filed, causing unnecessary delays in the settlement of proceedings. When the accused has no defence, he is naturally interested in prolonging the trial. The court’s liberal attitude to adjournments is one of the main causes of undue delay.
Access to justice affects different social classes differently. The upper and upper middle income classes, in general, can manage the costs in such a way that they do not affect their routines and their lives. There is at most a slight impact. The only costs associated with high-income classes seem to be related to their reputation and mental stress. With their high incomes, this group can hire lawyers or teams of lawyers who manage their legal affairs very effectively.
The poor and the middle and lower middle classes have to make compromises in their budgets. They might have to cut back on food expenses to leave money for attorney fees or apply for a loan, leading to mental stress and social problems. Thus, other transaction costs associated with seeking justice in Pakistan favor and tend to consolidate the advantageous position of the higher income classes.
Then there are also non-monetary costs for litigants. These include but are not limited to frustration, depression, deterioration of family ties, negative impact on children’s education and reputation, etc.
The way out of this legal quagmire is to prescribe time limits for civil cases and heavily penalize those who do not comply. Procedural rules should be changed and forensics should be at the heart of proceedings. In addition to state attorneys, more funding models and mechanisms should be introduced for those who cannot pay large legal bills. There should also be checks on lawyers and judges. To this end, monitoring and evaluation by third parties should be considered.
Finally, there will always be the question of who will monitor the monitor? Emphasis should be on self-enforcement mechanisms. We should continue to come up with better systems. If we cannot eliminate the flaws in the system, we can at least eliminate some of them.
The author is a Research Economist at the Pakistan Institute of Development Economics, Islamabad