Simplification of Exhaustive and Cumbersome Procedures

SIMPLIFICATION OF EXHAUSTIVE AND CUMBERSOME PROCEDURES SIMPLIFICATION OF EXHAUSTIVE AND CUMBERSOME PROCEDURES By Abdus Sattar Asghar, Registrar, Lahore High Court, Lahore. OBJECT We the people of Pakistan faithful to the declaration made by Quaid-e-Azam Muhammad Ali Jinnah that Pakistan would be a democratic state based on the Islamic principles of social justice, adopted the Constitution in the year 1973 to establish an order wherein fundamental rights and the independence of the judiciary shall be fully guaranteed and secured to achieve the object of dispensation of speedy and inexpensive justice upholding the rule of law. IMPORTANCE It is basic responsibility of the State to administer justice through the courts established either by the Constitution or the Statutes. The courts implement the law passed by the legislature and such law is of two kinds namely Substantive Law and Procedural Law. Substantive law intends to create a right and fix responsibilities of the people in a country whereas adjective law defines the procedure to enforce such rights and liabilities as created by the substantive law. Simplification of exhaustive and cumbersome procedures is a multi-dimensional subject. On one hand it involves reforms of the administration of justice while on the other side it necessitates procedural changes to achieve the objectives of speedy and inexpensive justice. Procedural laws are indispensable instruments in the hands of the courts to render justice. The absence of suitable procedural law may lead to chaos, ambiguity and uncertainty in legal proceedings before the court. The procedural law is designed to facilitate and promote justice by defining the rules governing the institution and the prosecution of legal proceedings both criminal and civil. THEME The theme of the Adjective law is to regulate the procedure starting with the filing of the pleadings till judgments, orders and decrees of the courts, are pronounced and enforced. To achieve the ends of justice, the courts are always guided by the procedural laws. The provision of procedural law may be construed liberally to achieve the ends of justice but no party could be permitted to abuse the process of law. SUBSTANCE In Pakistan need for simplification of procedural law was addressed first in the year 1958 and then in 1967 in the form of constituting Justice S.A. Rehman and Justice Hamood-ur-Rehman Law Commission respectively. The S.A. Rehman Commission in 1958 suggested simple procedure to be followed in family and other matters to combat delay. Hamood-ur-Rehman Law Commission 1967 made various recommendations for early disposal of criminal and civil matters. Hamood-ur-Rehman Commission in its report classified two categories of delays first in the court system itself and second caused by the lawyers. The Commission was of the view that the former delays were attributable to the dilatoriness of the procedure itself besides shortage of judges and growing volume of litigation and lack of proper attention given by the presiding officers of the courts to the relevant provisions of the procedural law like Order 11, 12 and 13 of Civil Procedure Code designed and intended for completing preliminary stages necessary for making a case ready for hearing. Some of the recommendations of Hamood-ur-Rehman Commission, however, were implemented by promulgating Law Reforms Ordinance, 1972 which made inter alia a number of amendments in the Code of Civil Procedure and Criminal Procedure, however, despite implementation of such amendments the desired result of reducing the delays in courts could not be achieved. In the year 1984 another attempt was made to revise, amend and consolidate the law of evidence in the form of Qanoon-e-Shahadat Order, by repealing the Evidence Act, 1872. Later on while addressing the issue of delay reduction Civil Laws (Reforms) Ordinance 1993 was promulgated whereby certain reforms were introduced as follows:- (i)???????? Increase of pecuniary jurisdiction of courts. (ii)??????? Measures to be adopted for proper and speedy service of summons and notices. (iii)?????? Effective steps ensuring admission or denial of facts/documents to curtail the period of trial. (iv)?????? Submission of certificate of readiness to produce evidence along with list of witnesses. (v)??????? Oral examination of parties, pronouncement of judgments within the specified period relating to detention of judgment debtor; and (vi)?????? To regulate the issuance of temporary injunctions. Through promulgation of Civil Laws Reforms Ordinance 1993 an appreciable effort is made to specify time schedule at various stages of the procedure to combat inordinate delays in the courts as under:- (i)???????? After amendments in Order V Rules 9 and 20 CPC time schedule for personal and substituted service, is 15-days. (ii)??????? Time frame for submission of written statement under Order VIII, Rule 1, C.P.C. stands changes to 30-days from 90-days. (iii)?????? Examination of the parties as envisaged by Order X Rule 2 C.P.0 is obligatory to ascertain material question relating to the suit. (iv)?????? Within seven days of settlement of issues, "Certificate of readiness" to produce evidence along with list of witnesses is to be furnished under Order XVI, Rule 1, C.P.C. (v)??????? Time schedule for hearing arguments on completion of evidence and pronouncement of judgment is 15 and 30-days respectively under Order XX, Rule 1, C.P.C. (vi)?????? Interim injunction shall not ordinarily exceed 15-days. Injunction issued under Order XXXIX, Rules 1 and 2, C.P.0 ceases to have effect on the expiry of six months and is extendable only in exceptional cases and that too on sound reasons and its extension to be reported to High Court. The concept of crime and criminality underwent a rapid change due to the scientific advancements. To revise criminal investigation sector and investigating agencies, Police Order 2002 was promulgated. However, time has proved that the Police Order 2002 and the Criminal Procedure Code are not equipped well to cope up with the alarming factors in criminal investigation and trial. More new and exhaustive provisions by way of amendments in the procedural laws in the fields like recording of confessions, recording of statements of the police officers, recording of dying declaration and granting of police and judicial remands etc. are also required. Simultaneously, to manage the litigation arising out of the development in information technology and the cases of white-collar crimes and cyber offences, biological developments in the subject of D.N.A and advance study in the area of Forensic Science may be useful in the crime detection. Necessary amendments are required in Qanun-e-Shahadat Order to utilize scientific innovations as relevant piece of evidence. SUGGESTIONS Even today we strongly feel that the procedural laws necessarily require simplification. The judicial officers, lawyers and the litigant public have unanimous view that simplified procedure will guarantee speedy and inexpensive justice. I respectfully propose that a Review Committee may be constituted by the Hon'ble Law and Justice Commission to undertake the task to review exhaustively and to amend or rewrite the enactments like Civil Procedure Code, Criminal Procedure Code, Pakistan Penal Code and Qanoon-e-Shahadat Order to suit to the changing time to suggest:- 1. ??????? (a) new procedural laws. (b) amendment and simplification of procedural laws, and (c) to repeal redundant procedural rules. 2. The Government must take on board all the stakeholders before drafting or amending rules of procedure. 3. All the relevant rules of procedure relating to a single aspect if they are found to be scattered in various places must be brought together.????????? 4. Inherent powers are to be conferred on the subordinate criminal courts also to reduce making frequent appeals to the High Court, Section 151 of Code of Civil Procedure, 1908 already provides such powers to lower civil courts. 5. Frequent conversations shall take place between the Bench and Bar to review the working of procedural laws. And 6. The amendments in the substantive laws shall also be carried out by amending the relevant procedural law. Books and Papers consulted: 1. Constitution of Islamic Republic of Pakistan, 1973. 2. Civil Procedure Code, 1908. 3. Criminal Procedure Code, 1898. 4. Qanun-e-Shahadat Order, 1984. 5. Police Order, 2002. 6. Procedural Laws in India Retrospective and Prospective views by M.S.V. Srinivas Advocate, Hyderabad. 7. The True Facts by Mr. Justice (Retired) Muhammad Naseem Chaudhry. 8. Justice S.A. Rehman Commission Report, 1958. 9. Justice Hamood-ur-Rehman Law Commission Report, 1967. 10. Law Reforms Ordinance, 1972. 11. Civil Laws Reforms Ordinance, 1993.