Adjournments: Role Of The Bar And Bench And Its Impact Upon Litigants
Our justice system is based on British adopted laws and to date, with some changes and amendments, civil, criminal and procedural laws remain the same. Certain amendments in this regard took place but, as experience and literature suggest, these are not sufficient for the speedy and smooth disposal of cases.
Litigants are facing hardship in the form of delays while getting their rights implemented by the courts of law. The basic cause for that hardship is unnecessary adjournments either on part of lawyers, or non-availability of record and witnesses, or strikes, or delay on part of judges due to heavy work load or leave, etc.
Frequent adjournments mostly sought on flimsy grounds contribute to this hardship in the form of inconvenience and expense to the parties and witnesses. Witnesses come to assist the court to dispense justice. They sacrifice their time but then feel inconvenience, rather, frustration and unhappiness if their cases are adjourned without the recording of their statements. In that case, they are required to come to court repeatedly, which provides an opportunity for the opposite parties to sometimes threaten the witnesses not to depose the truth. Lapse of time also affects the quality of statement that a witness has to depose before the court as human memory fades over time. Unnecessary adjournments creating hurdles in judicial system may shake the confidence of concerned litigants, which should be avoided at all costs.
Role of the Bar:
The Bar is a very important part of the justice system because they are officers of the court and their basic duty is to assist the hon’ble courts to reach the right conclusion in the shape of judgments and as a result whereof, to protect the rights of litigants. Most of the cases are pleaded by the counsel/members of the bar on behalf of their clients. The bar can play a vital role in order to improve the dispensation of justice by the Hon’ble Judges. In this current situation, most of the cases are being adjourned on account of the counsel’s request: “The counsel is busy before another bench, therefore, the case may very graciously be adjourned for any other date convenient to this hon’ble court”. Sometimes, the counsel are not fully prepared to argue their cases on merit, therefore, as a consequence seek adjournment. Sometimes the counsel seek adjournment without any sufficient cause only to protect the illegal interest of his client by using delaying tactic, e.g., by filing of frivolous application. It is pertinent to mention here that the courts are already over-burdened due to the increase in population and thus cannot adjust their cases on a weekly bases. Therefore, the litigants are bound to suffer this misery of long term litigation round after paying a heavy fee to their counsel. If the counsel is claiming sufficient cause, then the case must be adjourned in the interest of justice but with the assurance of future commitments from the parties to be present in the court on the next date of hearing in order to discharge their onus either to argue the case or to do whatever is required for the said date.
Another very important reason which causes delay in disposal of cases is strikes on part of the bar. The basic purpose of bar is to assist the judges on legal as well as on factual plain in order to reach a just and fair conclusion but from the last one decade or so, new trends have started taking place where lawyers observe strikes for the purpose of implementing their demands. But this aspect, behavior and aptitude is not good for professional terms, because as “officer of the court”, the members of the bar should avoid observing strikes and they should use their legal practice to implement their lawful demands by using the force available in Pakistani laws. A lay man can hold a protest in order to implement his or her legal demands but if a lawyer opts to strike, its results would seriously cause hurdle into the judicial system are bound to cause litigants to suffer misery of delay which is neither at the part of the party nor the hon’ble court. It is the need of the hour that the members of the bar start rethinking of the collective behavior of the bars to find out a better way of lodging protests instead of going on strikes. It will help in improving the working of judicial system to the benefit of litigants. Our judicial system is already over-burdened and under-resourced and hence is unable to conclude the pending cases/trials within the stipulated time period provided by the laws. Strikes become another cause to seriously damage the efficiency of legal and judicial system.
Role of other Government Departments:
In criminal administration of justice, government agencies/departments are bound to submit the record before the courts wherein they have taken any cognizance on account of a complaint lodged by the complainant or on the other hand private complaint lodged by invoking the relevant section. In cases of challans/FIR cases, the investigation officer is bound to conduct investigation and submit the challan within the stipulated time but this practice is not taking place in the courts because the police and prosecution agencies are not performing their duties as prescribed by the Code of Criminal Procedure. As a result the litigants are bound to face the prolonged round of trial. Number of trial-cases are adjourned daily by the criminal courts on account of non-availability of record or on the account of non-submission of challan. Another cause of unnecessary adjournments is the non-appearance or failure to produce witnesses in courts to record their evidence. It is also a matter of common knowledge that sometimes the accused are not produced from jails because of security issues or availability of proper personnel to transport accused from and to the jails. It is only a result of the lack of proper funding and facilities to police and jail authorities by the government. The legislature and the executive must consider providing more resources to these departments so that no delay is caused for these reasons. This misery can even be addressed by the judge giving serious instructions through passing strict orders against irresponsible police officers and other concerned authorities. Use of information technology for courts may be one of the better solutions for increasing the efficiency of justice sector stakeholders. For example, recording evidence through the use of social media softwares like Skype or Google Hangouts etc may be an option to avoid delays in criminal justice system.
Role of the Judges:
The most relevant and important aspect is the role of the judge in timely administration of justice. He or she is the person who actually controls the proceedings of the court. A judge is in fact the deriving force in raising the efficiency of justice system. Thus, a well-educated, well-trained and well-read judge can be a source of raising efficiency in justice delivery. A judge who is in command of law cannot be defeated by the delaying tactics of parties and advocates as he or she can pass appropriate orders on judicial file. For example, by recording conduct of the party, or by imposing costs, the delay can be curbed to a great extent. Order-sheets need to be written in a speaking manner to explain true picture of the proceedings of any day so that the real cause of the delay can be captured.
However, we all know that the judges and courts are over-burdened and under-resourced. Their cause lists are heavy, which sometimes includes more than 100 cases per day. Judges are not in a position to give short dates in the cases because of heavy work load. Practically speaking, a judge cannot give proper time to parties to hear their cases. This is also one of the major reasons causing delay in pronouncement of final orders or delivering judgments in time. This is the reason perhaps with the judges to always take lenient view while granting adjournments to the lawyers and that is also without imposition of the costs, although the judges have power to impose costs if anyone seeks adjournment without having any sufficient cause. Appointment of more judges and providing relevant facilities may be one of the solutions. Likewise, if a counsel is over-burdened due to pre-commitments, then he/she should assign the cases to their associates in order to help the judicial system towards speedy disposal of the cases instead of causing hurdles by way of seeking adjournments. This is even mentioned in every wakalatnama/power of attorney: the lead counsel may assign the case to any other advocate. This authority available with the advocates as agents of their clients is used rarely for to ‘act’ or ‘plead’ on behalf of the clients. Practically speaking, it is only used for seeking adjournments in the form of proxy counsel. Bars and advocates need to consider corporatizing the legal practice regime in this regard.
Role of the High Court, etc:
Following things are required to be done on part of government/legislature or the concerned High Court for the purpose to develop a healthy judicial system and for the reason of protecting the rights of litigant in stipulated period prescribed by the procedural codes or the laws.
Adjournment should not be allowed by the court without having sufficient cause. If the case is fixed for hearing, the case will only be adjourned after taking undertaking from the counsel to be present on the next date of hearing.
Every adjournment should be on costs.
Bar will not observe strike; instead, it will use relevant legal forums for the purpose to implement their legal demands.
The State shall mobilize the concerned authorities/departments for submission of challaan in the courts within stipulated time.
Witnesses should appear on the date of hearing for recording of evidence, otherwise courts should impose heavy costs.
Number of judges and court staff should be increased in the provinces as the population is also increases in the country. This would help in decreasing the work load for the judicial system and as a consequence, the judges should be able to follow the procedural timelines while granting future dates of hearing in the pending cases. Less number of cases with a judge may enable the court to give short adjournments. Once the system is properly backed by infrastructure and a well-functioning bar, the courts will be in a position to give at least one date every week instead of how the present system adjourns cases for one or two months per date.
Training and Education:
Last but not the least, no institution can progress unless its human resources are provided with continuing professional development opportunities. Thus, pre- and in-service training opportunities for judges, magistrates, lawyers, prosecutors, police officers, investigation officers, court staff and court managers is need of the day. More emphasis is required to be provided in these trainings on professional ethics, integrity, procedural justice and judgment writing. Training into the advanced forensics, use of IT and court technology is also need of the day. The judicial academies and other services academies need to collaborate with each other for designing a well-functioning and responsive legal and judicial education regime. These academies are to consider active collaboration with universities and seats of learning within the country and even abroad to broaden their horizon of training and education programs. There is also an urgent need to establish training institutions for the members of the bar to provide them training on ethics and professionalism.
Efficiency in the Justice System and Economic Development:
Speedy and timely disposal of cases by the courts play a vital role in bringing foreign investment in a country and to improve each and every corner of economic activity. At the same time, with an efficient justice delivery system, local business and social relations in society also improve for providing quality life in a society. Human rights are better administered in such a society where efficiency and effectiveness of the justice system is ensured. Therefore, it is the right time to take steps towards redefining the courts’ procedures and amendment in laws.
The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.