The Solution

A strict master will not have understanding or corporative people but to improve the system strictness is necessary and very important

Having a cause list of more than 100 cases in the Honourable High Court before different Honourable Benches, then, how can the system operate effectively? Indeed, entertaining every particular case is not possible and that is why over frivolous litigation the doctrine of in limine is used.  However, one of the core dilemmas before the Higher Courts is the concept of leftover. It is humanely impossible to hear more than 100 cases in a day however, as a result, the next date fixed for a particular case made leftover shouldn’t be on a longer time frame.

Is there a solution to this dilemma? Yes, there can be. I believe there need to be more appointments of the judges of Higher Courts and this is how the caseload will shuffle which as a result, will decrease the number of cases made leftover. I do not say that the concept of leftover will totally succumb but more cases can be decided therefore, automatically the figures will change. 

As far as Civil Courts are concerned some lacunas need to be filed. As a lawyer, no one would like to go to Courts where whole buildings are covered with pictures, lifts not properly working and carrying more than 20 lawyers in one go, and garbage spilled on the outskirts. This is something demotivating especially for youngsters. Is this what is in the United Kingdom as well? Not AT ALL. If we consider the lowest Court of the United Kingdom which is the County Courts it is absolutely one eighty degrees opposite. The Courts are very neat and polished.  If we take a small example of the spilling of garbage then it would be clear why there are standards abroad. In London and some other UK cities, if you just tossed the wrapper or your dog “littered” in a public place, the fine will be £80. And if you throw out a relatively large amount of garbage, that is, set up a landfill – fines start from £400 for an individual. Moreover, you need to pay within 14 days, otherwise, you will also have a huge penalty. 

A solution as far as the condition of Civil Courts is concerned, the Chief Justice of Pakistan needs to take serious action and personally monitor and implement policies to solve this dilemma. What can be done is that a proper special team needs to be constructed and approved by the Chief Justice of Pakistan to ensure the cleanliness, maintenance, and proper installation of essential things, and serious actions need to be taken against those who fail to comply with this particular team specially enrolled for Civil Courts. There should be heavy fines for those who spill garbage on the outskirts of lower courts. All posters should be immediately removed from the Civil Court walls and anyone who tries to paste wallpapers again on the walls should be heavily fined or else their license should be revoked even if it is someone from bar councils. Things can’t change if there isn’t someone who believes in a change. Indeed, a strict master will not have understanding or corporative people but to improve the system strictness is necessary and very important.  

Another concern regarding practice before the Civil Court is the concept of strike. Let's assume from a youngster’s perspective and mindset. A young lawyer prepares a case (maybe for his first-ever client) spending a good span of hours and the next morning he has to argue before the Civil Court. On the very next morning, there is a strike called. Obviously, his confidence and faith in the practice would shatter. This concept of strike seems to be arbitrary. Even now Chief Justice, Qazi Faez Isa has been pleased to pass a judgment reported as 2023 SCMR 421 Supreme Court where a detailed analysis has been drawn over the concept of strike. For ready reference the relevant Paragraphs No. 6 & 8 of the Judgment are reiterated here-below as follows:

“6. The Constitution of the Islamic Republic of Pakistan (‘Constitution’) commences by stating that the exercise of authority is a sacred trust. If an advocate representing a detained accused does not attend court, he fails to perform his professional duty and breaks his client’s trust. An accused person like any other has the inalienable right to enjoy the protection of law and to be treated in accordance with law but if advocates strike and trial are postponed this constitutional right of the accused is negated… 
 8. However, if an advocate strikes for a lesser or personal reason it would be appropriate to first return the professional fee received from the client. An advocate should not strike at the expense of the client. We also note that a times a case is adjourned because the complainant’s advocate is not in attendance. It is clarified that a court does not have to wait for the complainant’s advocate to attend court, much less adjourn a case due to his absence, because the State counsel, employed at taxpayer’s expense, is required to prosecute cases.” 

I believe the Judgment is right. Let's assume from a client’s perspective that a client agrees to pay a huge amount of consideration to a lawyer to take up his case but due to a strike the client’s lawyer fails to appear. Isn’t it unfair and against the right to a fair trial (Article 10A)? I believe it is. This Judgment is the solution to one of the dilemmas of the legal system but worth it if its execution is being done. 

Let me close by making one final point: now that Justice Qazi Faez Isa has been appointed as the 29th Chief Justice of Pakistan on the 17th of September, 2023 I believe important steps will be taken to improve the judicial flaw of the system. Let’s assume Qazi, CJ starts the implementation for the improvement of the legal system from tomorrow, it will be opposed tooth and nail by the bar associations. However, at the same time systems improvement should be the ultimate priority and Qazi, CJ, and SC are capable of a change. 

The writer is a lawyer. The views expressed in this column do not represent the views of his firm. The lawyer can be reached at Twitter: @qsheikh013, LinkedIn: Qasim Sheikh

The writer is a lawyer. The views expressed in this column do not represent the views of his firm. The lawyer can be reached at Twitter: @qsheikh013, LinkedIn: Qasim Sheikh

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