08-05-2005, 12:50 AM
By Javed â 31 July 2005
Their Excellencies the President and the Prime Minister and the
newly appointed His Lordship Chief Justice of Pakistan have
emphasis the need to reform the judiciary particularly the Courts
delays.
There are many factors for delays in justice. Apart from Courts the Civil Administration and the litigants themselves also play a pivotal role in these delays. Civil Administration is responsible when it used police and other Executives like Magistrates (DCOs), police force etc on civil duties like VIP movement. Thus Magistrates can not hear cases fixed for that day and police cannot bring accused to the Courts. Litigants are responsible because the party who knows he is wrong and his claim is weak tries best to prolong the case by continuous adjournments on one pretext or the other even through âChai Paniâ.
However the major factor in this regard is the advocates themselves. If one goes through an Advocateâs Daily Diary a long list of minimum 15 to 25 cases would be found fixed for each single day. This means the advocate concerned has taken full fees from all those 25 clients in advance despite knowing well that he cannot attend 25 cases in one day. But his main interest is with money than the Client or the professional honesty for which he had taken oath . An advocate who loses most of his cases and lacks even the average professional competency, one can see him sitting in Bar cafeteria, criticizing over a cup of tea every step of the Government and posing as if had he been on the rulers chair he would had turned the country in one single day into a heaven.
Delays on account of an Advocateâs unprofessional attitude, can to a good extent be solved by prescribing a standrised government approved âWakalatnamaâ. At present different types of pre-pritned Wakalatnamas are available on stationery shops around the courts. Some advocates have printed their own. But text of all such wakalatnamas have so been drafted only to protect the advocate and not the litigant client.
For example I have read one such standard wakalatnamas wherein a litigant client signs on the dotted lines that he will inform (and find) his Advocate when the court calls for the case hearing. It is well known that the Court clerk calls in loud voice three times names of parties to a case when turns come. The court does not wait long. Within 2-3 minutes if a party is not present the case is adjourned or proceeded. How an ordinary citizen in such huge court complexes where thousands of visors are gathered can find where his advocate was, engaged, sitting or chatting? An advocate who has charged fee in advance and has noted in his Diary that case was fixed for hearing, why should he himself not early morning arrange with the court time of hearing and at his own be present in the court? What for he has taken the fees?
Another clause I found in one such wakalatnams was that in case the court decides the case ex-parte the client will not hold his advocate responsible. A professional after charging full fees does not attend his professionally hired duty, due to his absence the client losses his case, even then Professional is not responsible must be worldâs most cruel thing to say.
When about four years back Pakistan Law Commission invited public proposals as a conscientious citizen I raised this issue of Wakalatnama. I was thanked for raising the issue but later I never got to know what happened in these long years.
These delays in justice are not restricted to Courts only. The Government is sincerely spending huge for providing cheap, at the door and speedy justice in shape of ombudsman system. Now it is equipping this system with costly modern i-technology. But instead of any improvement, to my experience and view the performance generally is continuously going down. For one example I filed a complaint with one ombudsman in January 2005. Till today different types of purely bureaucratic objections are being raised by the bureaucrats sitting in the said Ombudsman office which during the past 20 years having dealt with more than 500-600 complaints I have never ever met before. Today I feel as if I had not filed my complaint with an Ombudsman rather with some Deputy Commissioner. I had been also wondering that in the past such clerical objections were never raised, were the then people working in Ombudsman offices incompetent that they did not know the office procedures and only the present lot does know? But soon I found the answer in his last month weekly column by Mr. Hafizur Rehman, a retired senior officer from old breed turn columnist. His last posting was as Director General Public Relations in an Ombudsman Secretariat. Last month he wrote a master piece saying if there was any word missing from our bureaucracy that is feeling the pains of suffering common man. He wrote that most of the bureaucrats never put themselves into the shoes of a suffering common man to realize the pain of an aggrieved hence they lack any real sympathy for ordinary people. This is what Pakistanâs first Honourable Ombudsman Pakistan Mr. Justice Sardar Iqbal officially stated that âbefore processing a complaint we put ourselves in this secretariat in the shoes of the complainant to know the pain, as only then we can realize the depth of pain of a complainantâ. Unfortunately this quality is on decline. One provincial ombudsman whether there is any real cogent need or not invariably summons the complainant on each and every occasion in the name of hearing may the complainant be residing abroad. This is joke to the word âat the door and cheap justiceâ. 10-12 years back I was with a provincial ombudsman on a courtesy call. Then I was working abroad. I enquired from him does he calls complainants from abroad for hearing. His reply was that he does not call a complainant even from a 100 miles knowing well the train/bus fare let alone from abroad. This was really the spirit which today mostly lacks even in these cheap speedy justice giving institutions.
To avoid delays in justice Advocates unions wrongly called Bar Associations also needs to be revamped. As Builders Associations work merely for the protection of interests of member builders and not of the purchasers, likewise these Bar Councils work only to protect interests of their members and not that of the public or in the interest of justice. I quote one example. I was then working abroad. I engaged a Lahore advocate for my civil case in Lahore. He took full advance fee from me. He shifted to Faislabad without my knowledge and my case was decided ex-parte due to non attendance by my lawyer. I approached the Punjab Bar Council just seeking the guidance what to do. In return I got a Hearing notice from Faisalabad Bar Association fixing a date. The Bar Association knew well I was living abroad despite that it fixed the hearing date which was 8-10 days later. This notice was received by me in the evening morning of which I should had been in Faislabad. This was done deliberately. The most interesting was that in the notice Bar Association asked me to produce âin the Hearingâ address of the advocate. This sentence may look very innocent but its speaks the dirty intents. âIn the Hearingâ I was supposed to âpresent addressâ of the advocate which meant on the Hearing date it was only me who would be present and not the Advocate concerned. So this was in fact a tact often used by potentially losing party that make to make the right party suffer on account of such frequent unnecessary travel/attendance. Can one imagine in his right mind an Association does not have address of one of its own Member? The Hearing was fixed but what hearing? Nothing just to see my âbeautifulâ [not handsome] face!!! Reason being the Bar Association was not even aware of what type of my case was, in which court in Lahore was and what its number was. Hence on hearing date the Bar Association in fact had no official record of the case but it summoned me only to me suffer (harass)? When I pointed pointed out that notice of hearing was received after the date of hearing, the Bar Association issued a new hearing notice with new date but using the same tactics that it reached me again after the date of hearing.
If delays in delivering of justice are to be removed then first step needs to be regulating the services of advocates. The engagement of an advocate should be on a simple one page pre-printed government designed agreement fixing terms, responsibilities, fees, extras etc which agreement should also server as a Receipt. In case of non attendance by an advocate on two consecutive Hearings the Court may direct the concerned party to engages a new advocate in next hearing. The Court at the same time may pass a short directive directly or through Bar that the negligent advocate refunds in full fee to the party with a small penalty to be paid to the Court. On medical certificate no hearing be adjourned may it be from lawyer or from a party. The only adjournment allowed should be if advocate/party is admitted in the hospital and the second party is given a slip by the Court addressed to the Hospital concerned allowing the party to see if the patient was really lying in bed in hospital. Where a party after filing a case does not appear twice in the court, while making ex-parte decision, a heavy fine may be imposed on it for wasting courts time and recovered as state arrears. The whole Ombudsman system which was established by the Government very sincerely for providing cheap, at the door, speedy justice may be revamped, For this purpose a committee be constituted in the Ministry of Law which should comprise representatives from Ministry of Law, Pakistan Law Commission, representatives of all Ombudsmen offices, some public spirited people like M.D. Tahir, Kunwar Idris. The Head of this Committee must be Mr. Justice ® Sardar Iqbal the then Federal Ombudsman and while Mr. S.M. Munir the then Sindh Ombudsman as Secretary of the Committee. The Committee must finish its job in three months. The Committee must give 15 days for public to submit their proposals.
Their Excellencies the President and the Prime Minister and the
newly appointed His Lordship Chief Justice of Pakistan have
emphasis the need to reform the judiciary particularly the Courts
delays.
There are many factors for delays in justice. Apart from Courts the Civil Administration and the litigants themselves also play a pivotal role in these delays. Civil Administration is responsible when it used police and other Executives like Magistrates (DCOs), police force etc on civil duties like VIP movement. Thus Magistrates can not hear cases fixed for that day and police cannot bring accused to the Courts. Litigants are responsible because the party who knows he is wrong and his claim is weak tries best to prolong the case by continuous adjournments on one pretext or the other even through âChai Paniâ.
However the major factor in this regard is the advocates themselves. If one goes through an Advocateâs Daily Diary a long list of minimum 15 to 25 cases would be found fixed for each single day. This means the advocate concerned has taken full fees from all those 25 clients in advance despite knowing well that he cannot attend 25 cases in one day. But his main interest is with money than the Client or the professional honesty for which he had taken oath . An advocate who loses most of his cases and lacks even the average professional competency, one can see him sitting in Bar cafeteria, criticizing over a cup of tea every step of the Government and posing as if had he been on the rulers chair he would had turned the country in one single day into a heaven.
Delays on account of an Advocateâs unprofessional attitude, can to a good extent be solved by prescribing a standrised government approved âWakalatnamaâ. At present different types of pre-pritned Wakalatnamas are available on stationery shops around the courts. Some advocates have printed their own. But text of all such wakalatnamas have so been drafted only to protect the advocate and not the litigant client.
For example I have read one such standard wakalatnamas wherein a litigant client signs on the dotted lines that he will inform (and find) his Advocate when the court calls for the case hearing. It is well known that the Court clerk calls in loud voice three times names of parties to a case when turns come. The court does not wait long. Within 2-3 minutes if a party is not present the case is adjourned or proceeded. How an ordinary citizen in such huge court complexes where thousands of visors are gathered can find where his advocate was, engaged, sitting or chatting? An advocate who has charged fee in advance and has noted in his Diary that case was fixed for hearing, why should he himself not early morning arrange with the court time of hearing and at his own be present in the court? What for he has taken the fees?
Another clause I found in one such wakalatnams was that in case the court decides the case ex-parte the client will not hold his advocate responsible. A professional after charging full fees does not attend his professionally hired duty, due to his absence the client losses his case, even then Professional is not responsible must be worldâs most cruel thing to say.
When about four years back Pakistan Law Commission invited public proposals as a conscientious citizen I raised this issue of Wakalatnama. I was thanked for raising the issue but later I never got to know what happened in these long years.
These delays in justice are not restricted to Courts only. The Government is sincerely spending huge for providing cheap, at the door and speedy justice in shape of ombudsman system. Now it is equipping this system with costly modern i-technology. But instead of any improvement, to my experience and view the performance generally is continuously going down. For one example I filed a complaint with one ombudsman in January 2005. Till today different types of purely bureaucratic objections are being raised by the bureaucrats sitting in the said Ombudsman office which during the past 20 years having dealt with more than 500-600 complaints I have never ever met before. Today I feel as if I had not filed my complaint with an Ombudsman rather with some Deputy Commissioner. I had been also wondering that in the past such clerical objections were never raised, were the then people working in Ombudsman offices incompetent that they did not know the office procedures and only the present lot does know? But soon I found the answer in his last month weekly column by Mr. Hafizur Rehman, a retired senior officer from old breed turn columnist. His last posting was as Director General Public Relations in an Ombudsman Secretariat. Last month he wrote a master piece saying if there was any word missing from our bureaucracy that is feeling the pains of suffering common man. He wrote that most of the bureaucrats never put themselves into the shoes of a suffering common man to realize the pain of an aggrieved hence they lack any real sympathy for ordinary people. This is what Pakistanâs first Honourable Ombudsman Pakistan Mr. Justice Sardar Iqbal officially stated that âbefore processing a complaint we put ourselves in this secretariat in the shoes of the complainant to know the pain, as only then we can realize the depth of pain of a complainantâ. Unfortunately this quality is on decline. One provincial ombudsman whether there is any real cogent need or not invariably summons the complainant on each and every occasion in the name of hearing may the complainant be residing abroad. This is joke to the word âat the door and cheap justiceâ. 10-12 years back I was with a provincial ombudsman on a courtesy call. Then I was working abroad. I enquired from him does he calls complainants from abroad for hearing. His reply was that he does not call a complainant even from a 100 miles knowing well the train/bus fare let alone from abroad. This was really the spirit which today mostly lacks even in these cheap speedy justice giving institutions.
To avoid delays in justice Advocates unions wrongly called Bar Associations also needs to be revamped. As Builders Associations work merely for the protection of interests of member builders and not of the purchasers, likewise these Bar Councils work only to protect interests of their members and not that of the public or in the interest of justice. I quote one example. I was then working abroad. I engaged a Lahore advocate for my civil case in Lahore. He took full advance fee from me. He shifted to Faislabad without my knowledge and my case was decided ex-parte due to non attendance by my lawyer. I approached the Punjab Bar Council just seeking the guidance what to do. In return I got a Hearing notice from Faisalabad Bar Association fixing a date. The Bar Association knew well I was living abroad despite that it fixed the hearing date which was 8-10 days later. This notice was received by me in the evening morning of which I should had been in Faislabad. This was done deliberately. The most interesting was that in the notice Bar Association asked me to produce âin the Hearingâ address of the advocate. This sentence may look very innocent but its speaks the dirty intents. âIn the Hearingâ I was supposed to âpresent addressâ of the advocate which meant on the Hearing date it was only me who would be present and not the Advocate concerned. So this was in fact a tact often used by potentially losing party that make to make the right party suffer on account of such frequent unnecessary travel/attendance. Can one imagine in his right mind an Association does not have address of one of its own Member? The Hearing was fixed but what hearing? Nothing just to see my âbeautifulâ [not handsome] face!!! Reason being the Bar Association was not even aware of what type of my case was, in which court in Lahore was and what its number was. Hence on hearing date the Bar Association in fact had no official record of the case but it summoned me only to me suffer (harass)? When I pointed pointed out that notice of hearing was received after the date of hearing, the Bar Association issued a new hearing notice with new date but using the same tactics that it reached me again after the date of hearing.
If delays in delivering of justice are to be removed then first step needs to be regulating the services of advocates. The engagement of an advocate should be on a simple one page pre-printed government designed agreement fixing terms, responsibilities, fees, extras etc which agreement should also server as a Receipt. In case of non attendance by an advocate on two consecutive Hearings the Court may direct the concerned party to engages a new advocate in next hearing. The Court at the same time may pass a short directive directly or through Bar that the negligent advocate refunds in full fee to the party with a small penalty to be paid to the Court. On medical certificate no hearing be adjourned may it be from lawyer or from a party. The only adjournment allowed should be if advocate/party is admitted in the hospital and the second party is given a slip by the Court addressed to the Hospital concerned allowing the party to see if the patient was really lying in bed in hospital. Where a party after filing a case does not appear twice in the court, while making ex-parte decision, a heavy fine may be imposed on it for wasting courts time and recovered as state arrears. The whole Ombudsman system which was established by the Government very sincerely for providing cheap, at the door, speedy justice may be revamped, For this purpose a committee be constituted in the Ministry of Law which should comprise representatives from Ministry of Law, Pakistan Law Commission, representatives of all Ombudsmen offices, some public spirited people like M.D. Tahir, Kunwar Idris. The Head of this Committee must be Mr. Justice ® Sardar Iqbal the then Federal Ombudsman and while Mr. S.M. Munir the then Sindh Ombudsman as Secretary of the Committee. The Committee must finish its job in three months. The Committee must give 15 days for public to submit their proposals.
