–Sources say govt will introduce six new laws, amend two existing laws
ISLAMABAD: The Pakistan Tehreek-e-Insaf (PTI) government is all set for parliament’s approval over the proposed legal reforms in an apparent bid to ensure speedy justice and to improve the efficiency of the judicial system as well, Pakistan Today has learnt.
Sources in PTI informed Pakistan Today that after its first 100 days, the government is all set to get parliament’s approval for fulfilling its promise of introducing the judicial reforms to root out the menace of corruption from government institutions and to ensure justice-based social system. The government has completed necessary preparations and will introduce six new laws and amendments in the two existing laws, sources added. Sources also said that the PTI government is in contact with different political parties to ensure their support in getting the approval from parliament over the proposed legal reforms.
A copy of presentation on legal reforms drafted by ministry of law and justice revealed proposed legal reforms and suggested amendments in Civil Procedure Code and Service Tribunals, while proposed bills on Legal Aid and Justice Authority Bill, 2018, Enforcement of Women’s Property Rights Bill, 2018, Letters of Administration and Succession Certificates Bill, 2018, Whistleblower Protection and Vigilance Commission Bill 2018, Mutual Legal Assistance Bill, 2018 and Action Plan for Women and Girls in the Legal System Bill, 2018.
It is worth mentioning that law and justice ministry has proposed amendments in Federal Service Tribunal Bill, 2018. According to the ministry, under the present laws, the remedies available to civil servants are most inadequate and convoluted with the result that for some types of service disputes, the Service Tribunal has the jurisdiction, while for the others the high courts, under their writ jurisdiction, the Supreme Court (SC) in its original constitutional jurisdiction and the civil courts have respective jurisdictions.
The direct result of the above is that there is a state of ultimate confusion as the courts and lawyers are entangled in subtle and difficult arguments in respect to the jurisdiction of different forums. As a further consequence of the later, the courts and tribunals are more engaged with regard to jurisdictional issues rather than the determination of the actual controversies on merits, said law and justice ministry.
The ministry also claimed that at present there are about 30 per cent service cases pending in the high courts and once the proposed amendments are passed, they will be relieved of this heavy burden and would be able to focus on other cases.
The Service Tribunal also spends years before it could reach decisions with finality.
“Under the new amendment, we suggest that the service tribunal may have two divisions. The original division shall comprise a chairman who has been or is qualified to be a high court judge and other members,” said law and justice ministry.
The ministry also said that any action, inaction or service dispute, including induction disputes, would be entertained by the original division without the civil servant having the need to file a representation and waiting for 90 days or more before he could file an appeal. The order of the original division will be appealable before an appellate division of the tribunal comprising the chairman who has been or is qualified to be a judge of SC. There will be other members also.
Under the new law, it is proposed that all matters of fitness for holding a post, including promotion matters, be dealt with by the tribunal and not the high courts. The amendment shall be a federal statute pertaining to federal civil servants while it is proposed that the provinces also legislate similar amendments in relation to provincial civil servants, said law and justice ministry.
Similarly, a two-tier system has been proposed in the Civil Procedure (Amendment) Bill, 2018. The law and justice ministry said that a major cause of delay in Pakistan’s civil litigation system is that when a party files a suit accompanied with an injunction/stay application, the main suit does not proceed. The court only then focuses on the stay application which takes many years to decide the stay/injunction. The main suit remains in a state of inertia. A new concept of a two tier-system has been proposed in the amendment. Two different judges will hear the entire suit. In the first tier, the main case would be heard by one judge without interruption till the finalisation of the proceedings. Stay and other miscellaneous applications would be heard in the second tier by another judge. The proposed change is a radically evolutionary step in our civil litigation system and is completely unique and different from other jurisdictions such as India, Bangladesh, United Kingdom, etc. and is one that will ameliorate the civil litigation practice and will become precedence for other countries to follow.
It is safe to say that such a change will reduce the 30/40-year period of civil litigation to a maximum of two years or a little more, including appeals. In civil litigation, especially in matters relating to land, property and revenue disputes, the decisions are based on inspections, including physical demarcations effected by patwaris, mukhtiakars, lower grade revenue officers who often manipulate or give false reports which result in appeals and applications by aggrieved parties being stuck in litigation for years.
A new concept of spot checks has been proposed where the judge conducting the trial would be able to conduct spot inspections for a just adjudication of the case. This would not only reduce corruption but also render a more accurate judgment since nothing beats personal first-hand knowledge of the judge. At the same time, this will not only lessen unnecessary and protracted litigation but it shall enhance accuracy and be destructive of delays.
There are different stages/steps in effecting service of notices and summons which causes inordinate delays. Similarly, the bailiffs are also instrumental in hampering judicial process by intentionally effecting service of notice/summons on wrong persons or sometimes deliberately not causing the service at all, while generating false reports and also by delaying the matters service by causing service on the last day.
The proposed amendment gets rids of all steps of service so that all modes of service such as personal service, service by post, electronic service through mobile or any other electronic medium, affixture and newspapers are done in one go. The proposed amendment also binds the process server or bailiff to record factum of the service by taking photographs of defendants, any person receiving on defendants’ behalf and the place at which summons/notices are delivered. CDR may also be used for such purpose.
Under the current Code of Civil Procedure, the evidence/statement of a witness is mainly recorded orally by the judges, who in many cases, being overburdened with backlog of litigation, either avoid engaging in recording of evidence, prioritise other cases, or in many cases, witnesses tend to avoid appearing for many years which hampers the judicial process.
Under the proposed regime, evidence/statement is going to be recorded through a commission comprising advocates/retired judges who will complete the process not later than 90 days. Also under the new regime, it shall be compulsory to record evidence and proceedings electronically through audio and video recording.
According to the ministry, this would not only reduce the burden on the courts as they would be able to focus on other proceedings but at the same time, it would also curb allegations of fraud and fabrication of statement by parties. Also, the demeanour of witnesses will become part of the record to be assessed by any judge who is adjudicating the case later in time.
The commission will also engage and employ many lawyers. Presently, the Civil Procedure Code contains two appeals and a revision up to the high court after which a further mechanism is given for an appeal to the SC, which is a major cause of excessive and inordinate delays for the conclusion of the proceedings. The proposed amendment gets rid of multiple tiers of appeal along with a revision and provides for one appeal to the high court and one final civil petition to SC. This change alone will cut down the delays by three to five years. The proposed amendments revolutionise the concept of costs, taking into account other prevalent legislation on the point and improving them. According to the new concept, the losing side shall pay the winning side the cost of litigation along with compulsory “adjournment costs” of Rs5000 for seeking adjournment as well as “special costs” if any party is found of abusing the process of the court through frivolous litigation or by relying on false averments.
As a way forward, similar amendments may be brought about by legislatures of Punjab, Khyber Pakhtunkhwa (KP), Sindh and Balochistan as the present proposal is for ICT, said law and justice ministry.