Niccolo Machiavelli, the sixteenth century Italian political philosopher, was an apostle of power politics. He is best known for his unqualified advocacy for an all-powerful ruler whose actions are unrestricted by moral considerations. Nevertheless, he advised “the prince”, his typical authoritarian ruler, to respect and actively protect the property rights of his subjects, for he believed “Men sooner forget the death of their father than the loss of their patrimony”. It is indeed a basic human instinct to own and possess property. Therefore, each state generally endeavours to protect the property rights of its citizens through an effective legal apparatus.
Infringement of individuals’ right to property may either be a civil wrong or simply a crime. Thus, this sort of infringement may give rise to a civil suit or criminal prosecution. Sometimes, a single wrongful act is also both a civil wrong and a crime. Mostly, it is the prerogative of the state to decide and declare whether a wrongful act amounts to a civil wrong or crime. However, there is sometimes a paradoxical situation where the state actively prosecutes and punishes a person who misappropriates, steals or robs a few thousands rupees of another but it stays silent when individuals easily manage to deprive others of their entire property through frivolous civil litigation. This being the case the state must also proactively protect the property and pecuniary rights of individuals by evolving an effective and efficient civil justice system.
In my last two columns on this subject, I tried to elaborate how an overly adversarial justice system, coupled with some typical common law complexities, has become a major hurdle in the way of providing inexpensive and expeditious justice in Pakistan. I, by no means, recommend replacing our existing adversarial justice system with purely an inquisitorial one. I believe we direly need to introduce a semi-adversarial or semi-inquisitorial, or simply an adversarial-cum-Inquisitorial civil justice system in Pakistan to cure our existing justice system of its chronic maladies. We should carefully and thoughtfully incorporate some effective tools of the inquisitorial system in our existing civil justice system to provide quality and speedy justice to people of Pakistan. A judge should proactively conduct and supervise the entire judicial proceedings in the court instead of being mere a passive spectator.
As a matter of fact, the Code of Civil Procedure-1908, the Bible of civil procedure in Pakistan, already contains a number of inquisitorial provisions. To begin with, a civil court can appoint a local commissioner to make local investigations to ascertain the nature, possession or market-value of the suit property. It can appoint a commissioner to examine accounts. Similarly, a civil court can examine parties and put questions to them to ascertain real facts in any case. It can also determine the crucial questions regarding the maintainability of a civil suit as well as the necessary parties to this suit. Moreover, Section 151 of CPC recognizes the inherent power of the civil court to take a number of necessary measures for the ends of justice. But regrettably, the judicial officers have been practically unable or unwilling to exercise these discretionary powers owing to the prevailing judicial culture in the country.
Before proposing any reforms for our civil justice system, we should certainly first thoroughly identify the flaws and bottlenecks in this system. Undeniably, an inordinate delay in the dispensation of justice is the fundamental defect in this system. Mostly, it takes much time to just summon the opposite party to a case or dispute to make him/her formally join the proceedings and answer a claim made by a plaintiff or petitioner. Similarly, sometimes, it takes years to determine and discover the basic facts of a civil case. To resolve this primary issue, it is advisable to evolve an efficient legal modus operandi by resorting to some practical tools of an inquisitorial system. There should be a preliminary administrative inquiry or investigation before initiating formal adversarial proceedings in a civil court so far as possible line with an investigation conducted and concluded by an investigating officer under the country’s criminal procedure code. For this purpose, there should be appointed a number of active, competent and qualified (preferably law graduates) inquiry or investigating officers to make preliminary inquiry or investigation.
Upon instituting a petition or ‘civil complaint’, the proposed inquiry officers should be legally empowered to summon all relevant individuals to a case through a coercive apparatus if required. These legal officers should also be competent to record preliminary statements of all relevant persons besides expeditiously collecting relevant documents. They should also be allowed to personally proceed to visit and inspect the suit property. Under this proposed legal procedure, an inquiry officer should be supposed to submit his final inquiry report, as does an investigating officers under Section 173 of Cr.PC, to a civil court within a month or so, stating the basic and relevant facts of the case, necessary parties to this case, nature and possession of the suit property along with the relevant documents and recorded statements. He may also recommend to the civil court for formally taking up a case for regular hearing or otherwise reject it after declaring it a frivolous one. Needless to say this preliminary inquiry report is not strictly binding on the civil court.
This proposed legal procedure involving a preliminary inquiry into a civil case would expeditiously take a civil case to an advanced stage where it can only get to after years of typical adversarial proceedings. After receiving the proposed preliminary inquiry report, the civil court will certainly be in a better position to make important decisions regarding the maintainability of the case and grating a stay or temporary injunctions. It would also be able to dismiss a frivolous case after a summary trial. A civil court can also instantly frame issues and ask parties to produce evidence in favour of their contentions and claims on the basis of this preliminary inquiry report. At this stage, the court can also selectively employ some inquisitorial tools to scrutinize documentary evidence and cross examine parties and their witnesses in addition to the parties to this suit.
This legal procedure would also discourage the practice of unnecessarily filing miscellaneous applications during a civil trial as most of these proceedings generally relate to the matters pertaining to the maintainability of the suit, and the necessary parties to this suit. A civil court would also be able to get the documentary and oral evidence promptly recorded through commissions. In this way, a civil court would be able to deliver its judgment in the shortest possible time after hearing arguments from both sides.
By adopting this legal procedure, a civil court would easily conclude a case within 6 to 12 months. The practice of filing an appeal against the interlocutory orders of the trial court is also another major reason behind the inordinate delay in the conclusion of a civil trial. Therefore, the appellate court should also evolve an efficient legal strategy to expeditiously dispose of these sorts of appeals during the pendency of a civil suit. An opportunity should also be provided to any aggrieved party to apply the trial court for a review of its decision. Similarly, there should be only one appeal to the High Court against the decision of a trial court rather than first allowing a party to approach a district judge and later the High Court for this purpose. This measure would minimize the time period required to make a civil decision attain finality.
Judicial officers would be required to play a pro-active role to run the proposed civil justice system. However, at the same time, this system would not undermine the role or importance of professional lawyers in the dispensation of justice. They would continue to play their part in the new system too. They would join the inquiry proceedings to help inquiry officers to discover facts and reach a conclusion. They would also assist the court throughout the civil trial as usual. They would also have an important role to play at the review as well as the appellate stage of the case. Thus, they would contribute towards the speedy disposal of a civil case rather than becoming instrumental in delaying the dispensation of justice to the disadvantages of the troubled litigants.
The success of this proposed system would depend on the performance of the judicial and auxiliary legal officers. These officers must be proficient and competent enough to efficiently run this system. So there must be a special focus on their capacity building. Moreover, there must also be an effective accountability apparatus to hold them accountable for their decisions and actions. It is high time for us to seriously review and overhaul our ailing civil justice system. Certainly, the bench and the bar alone can’t reform this justice system. Indeed, all the three organs of the government- the executive, the legislature, and the judiciary- must play their respective institutional role to reform and improve this system.
Concluded
The writer is a lawyer and columnist
based in Lahore.
mohsinraza.malik@ymail.com
@MohsinRazaMalik
Source: https://nation.com.pk/30-Oct-2018/reforming-our-civil-justice
