Failed Attempt!

Failed Attempt!

The laws in Pakistan are ancient, to say the least. For instance, the Civil Procedure Code (CPC), the predominant law regulating the procedure of civil courts is dated 1908 and is not only outdated to cater for the expeditious and judicious conclusion of cases but is also the primary reason of unimaginable and agonizing delays in civil proceedings.

Having said that, the fate of litigants was about to change drastically when news broke about the Honourable Lahore High Court which had constituted a Rules Committee to modernize and revolutionize the outdated CPC, the leading cause of never-ending litigation which has consumed generations. If we were to draw an analogy of how old, ancient and outdated our laws are, we could consider that World War I started in the year 1914 and ended in 1918, and the CPC applicable in the year 2018 was enacted in the year 1908, that is, 110 years ago. With this perspective, the constitution of a Rules Committee was welcomed by both the bar and the litigants. Our optimism and expectations and were raised further when the nine-member Rules Committee consisted of four outstanding judges of the Honourable Lahore High Court who had worked on the civil side and were aware of the problems of the legal system inside out, both as lawyers and as judges.

Those high hopes, however, fell flat when proposals of the Rules Committee were officially made part of the law by the Punjab Assembly, through the passage of Code of Civil Procedure (Punjab Amendment) Act 2018 on 14 March, 2018 which was assented to by the Governor of Punjab on 19 March, 2018.

This Amendment Act has proposed around 20 amendments which are disappointing, to say the least. The amendments, in a nutshell, have failed to address the major reasons causing delays in civil trials and have, in fact, further complicated the already complex system. Most of the amendments are immaterial, for instance the amendment to Section 151 of the CPC states that all judges while allowing an application under the said section must record reasons in writing. The legislature should have been informed that all judges since 1908 had been passing reasoned, speaking orders and if they didn’t, the order itself would have been illegal. The amendments, thus, have not relieved the pain of the litigants and are merely a burden on the statute books.

One significant amendment has been made to Section 115 of the CPC which is a right of revision, mostly exercised before the Honourable High Court against illegal orders of the subordinate courts. It is submitted that this was one remedy in which the Honourable High Court was able to set aside the wrong committed by subordinate courts, before the final conclusion of the trial. However, this valuable right to approach the Honourable High Court has been significantly curtailed even though there are more judges in the High Courts than ever before.

It was, therefore, utterly disappointing to note that there had been no meaningful change in the law. The laws are still ancient and trials will still take generations to conclude. For instance, if a party intentionally does not appear before a court, one of the options of substituted service is to still announce his or her name through the beating of a drum in the area where he or she resides (Order V Rule 20 of the CPC). This may have been a very effective tool around 100 years ago when the CPC was first enacted, but it is nothing but a mockery in this day and age. There are hundreds of such examples in the existing laws requiring amendments in order to modernize the outdated laws and bring them in line with modern-day standards.

It is depressing to note here that successive governments and chief justices have come and gone but no one has been able to bring any meaningful amendments to our outdated legal system where it remains a herculean task to get any justice, let alone swift justice. A quote attributed to Benjamin Franklin sums this up:

“Justice will not be served until those who are unaffected are as outraged as those who are.”

It has become a routine occurrence that when the politicians are in power and in a position to bring about any meaningful change, they remain oblivious to the problems. However, when they are ousted and have to face the system themselves they start whining about the unjust legal system. As the saying goes:

“The dead cannot cry out for justice. It is a duty of the living to do so for them.”

So those in power must try to bring about the change that is needed before it is too late.

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.