The Explorer Islamabad: Journal of Social Sciences ISSN: 2411-0132(E), 2411-5487(P) Vol-1, Issue (9):320-323 www.theexplorerpak.org
PROLONGED LITIGATION: FINDING CAUSES AND FACTORS IMPEDING JUSTICE PROVISION IN PAKISTAN Mazhar Hussain, Humera Dinar, Sawatia Ghazanfar Department of Anthropology, PMAS Arid-Agriculture University, Rawalpindi Corresponding Author: Mazhar Hussain PMAS Arid-Agriculture University, Rawalpindi deadly_kyo@yahoo.com Abstract: In Pakistan, litigation procedure delays usually. There are countless factors responsible for delaying and prolonging the legal process undergoing in the court. The study is an effort to identify the multiple reasons which cause delay in litigation. The data was collected using different quantitative and qualitative research tools and techniques. A sample size of 79 respondents was drawn using purposive sampling which included different stakeholders such is plaintiffs, defendants, lawyers, readers, stenos and clerks. This research is particularly focused on the District bar association Attock. The study found out that neglect of officials, unprofessional attitude of lawyers, corruption, heavy backlog of pending cases are a few factors which hamper the access of masses to swift justice provision in the society. As a result the due role of judiciary is weakened and becomes ineffective.
Key Words: Procedure of litigation, Delay in litigation, Justice INTRODUCTION “A Strategic litigation is much more than simply stating your case before a judge. This section introduces some of the broader goals of strategic litigation, as well as some of the more important considerations that should be addressed before entering the courtroom”(Geary 2009). “Three main elements are included in the litigation process: the existence of the claim; resistance to that claim; thereby constituting a dispute and on a specific institution to adjudicate the conflicting case” (Prest and Anleu 2004). “Every person is entitled to a certain remedy from the law of the state, for all the injuries, or wrongs which he may have received as a person, to his property, or character; he ought to obtain justice freely without being obliged to purchase it completely without denial, promptly and without delay, conformably to the laws. An injured or wronged person may obtain a remedy in the justice system through civil litigation. Civil cases, such as trots, contract disputes, divorce and other family issues, and property cases, are noncriminal matters”(Dodge 2012). Land and commercial disputes frequently involve in reason of litigation. ”like commercial and land matters which are so numerous and contentious does not serve the purpose of case backlog reduction in the country”(Kaweesa 2012).Corruption is one of the reasons to become cause of delay in litigation. Bribe, neglect of officials and misconducts are the most frequented factors of delay in Pakistan.
Backlog of cases, the gaps and complication in the process of lawsuit and mismanagement of case system and extensive corruption are numbers of factors which delay to access the justice. “Corruption and negligence are major factors which delay to access the justice”(Chowdhury 2013).Transfer of judges from one court to another also make dispute lengthier. Appearance of new judges requires a refresh start of the cases, need must recheck previous cases and recalling the plaintiffs and defendants for testimony which takes more time for provision of justice. “Delays occur in civil cases due to transfer of judges from one station to another”(Shah, et al. 2014).“In Pakistan, courts are filled with pendency cases due to delays in land and commercial cases and this pendency increased in past recent years. The causes of backlog and delay in our country are efficient and deep”(Blue and Hoffman 2008). In Pakistani courts the civil cases are delayed more prolong than criminal and family cases because of more complexity and have heavy back log of cases. Caseloads mostly comprised of land and commercial cases. Land cases are not resolve speedily, their complex and thus required longer time span which automatically effects the decisions of other cases (Blue and Hoffman 2008). Due to delay in judicial process in Pakistan people lose their belief and trust in justice system and law and order enforcing agencies. The usual duration for the disposal of civil case should be one or two years but
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it mostly takes ten to fifteen years. “Delay in our judiciary is bringing justice toward injustice”(Chowdhury 2013). Irresponsibility of police in investigation of case or their neglect also incurs a prolong litigation. Non-submission of related documents during trial period also pulls the cases lengthier. “Neglecting in documentation and investigation in legal procedures are major causes of delay in disposal of cases”(Pakistan 2009). Disappearance of judge in courts indicates the delay and non-provision of justice. On average 50 to 60 cases heard in a court room on daily basis but non-punctuality of judges demonstrate heavy backlog, delay and injustice. “The problem of punctuality of judicial officers in subordinate judiciary is also a matter of concern in Pakistan”(Shah, et al. 2014). MATERIALS AND METHODS The study was carried out in District Bar Association in Attock. A sample of 79 respondents was drawn using purposive sampling technique. The research methods included in-depth interviews, participant observation and key informant method. A semistructured interview guide was prepared to get an insight of the issue under study. Various causes and factors of delay in judicial process were documented during the research. The hypothesis was tested through bivariate correlation statistical method: RESULTS AND DISCUSSION H0: Corruption is not the cause for delay in litigation procedure H1: Corruption is the cause for delay in litigation procedure
Variable Corruption
Sig. .10
H0: Neglect of officials is not the cause for delay in litigation procedure H1: Neglect of officials is the cause for delay in litigation procedure
Variable Neglect of officials
Sig. .43
H0: Transfer of judges is not the cause for delay in litigation procedure H1: Transfer of judges is the cause for delay in litigation procedure
Variable Transfer of judges
Sig. .23
H0: Insufficient number of judges is not the cause for delay in litigation procedure H1: Insufficient number of judges is the cause for delay in litigation procedure
Variable Insufficient number of judges
Sig. .18
H0: Non-punctuality of plaintiffs or defendants is not the cause for delay in litigation procedure H1: Non-punctuality of plaintiffs or defendants is the cause for delay in litigation procedure
Variable Non-punctuality of plaintiffs or defendants
Sig. .01
H0: Heavy backlog of cases is not the cause for delay in litigation procedure H1: Heavy backlog of cases is the cause for delay in litigation procedure
Variable Sig. Heavy backlog of cases .09 The findings of the research show a positive relationship between the dependent and independent variables. The table depicts a strong association between delay of legal action and corruption, insufficient number of judges and heavy back log of cases. The correlation values between these variables are 0.10, 0.18 and 0.09 respectively. These values indicate a significant relation. Also, there exists a weak yet positive relationship between delay and neglect of officials, frequent transfer of judges and non-punctuality of plaintiffs and defendants. The current study explored a number of delaying factors impeding the legal procedures of the courts in Pakistan. However, the most prevalent hampering factors highlighted by the 50.6 percent respondents have been covered in this research. Corruption is a social evil entangling all public institutions of Pakistan. One of the public survey reveals that in the judicial system people face the delays in cases and encounter financial corruption(Siddique 2011).“According to the survey conducted by DPRC reveals that more than one in three courts user pay a bribe which clearly indicates the corruption in the judiciary system of Pakistan”(Siddique 2011). Since this issue is related more with clients that’s why the result we get from plaintiffs and defendants is more positive than the officials being interviewed. “The volume of backlog of cases, the loopholes and complexity in the procedural law and case management system and widespread corruption and malpractices are among a number of factors which delay and deny access to justice”(Chowdhury 2013). Formal and informal interviews 68.4 percent plaintiffs and defendant and also the observation revealed that neglect of officials, their absents from duty, undutiful attitude are major causes of delay. According to (Siddique 2010)“the general tendency of lawyers to adjournments on frivolous grounds was a major cause of delay”. Also, one of the reason behind delays in cases and its disposal is due to the no serious behavior of presiding officers who remain busy in entertaining their friends and relatives
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during court hours (Khan 2011). Among various causes of delay in legal procedure issues related to judges hold a prime importance. Frequent transfer of judges is a major cause of delay in legal process. A fair number of respondents (57%) pointed out this problem as major hindrance.“With their presiding judges getting shifted to new judges, thus adding further delay to the case proceedings” (Siddique 2010).“Thus, the judge primarily handling a case may transfer to another court in the middle of the proceeding, requiring the new judge replacing him to learn again from scratch the technological and legal issues involved in a complex patent litigation”(Takenaka 1999). Not only officials but also general masses agreed that they face hurdles in litigation procedure just because of insufficient number of judges. Pendency of previous cases require more number of judges than present quantity. “Another reason behind the sad state of affairs is that the number of judges is highly disproportionate to the population”(Kumar 2012).Plaintiffs and defendants have a major role in litigation procedure for testimony. The qualitative study gathered with in-depth interviews is defining that one of them not present at the time of testimony due to their personal animosity with each other make litigation more prolong.“Some time prosecutors know that their witnesses will become forgetful and lose their interest in testimony then prosecutor appeal for delay ” (Bergmanand Berman 2003).Another major cause of delay is heavy backlog of cases in courts. According to qualitative research of this study explain that according to legislative of Pakistan a case should be finish in six month duration and make trial speedier. The current study found that the district bar association Attock has 1805 cases in pendency, 612 cases were dispose off and total number of cases registered at that time including the new ones is 1808. “The criminal trial system is difficult, prolonged and there are continual delays causing a severe backlog of cases in the court”(Hameed and Jamshed 2013).“Pending of cases in our courts is a main factor of delay in disposal of cases”(Bhushan 1978). CONCLUSION Frequent delay in litigation procedure in Pakistan creates hurdles in provision of justice to the general masses. Countries like Pakistan where corruption is a major issue in every institution has also affected the justice system in the country. There are a number of reasons for delay in litigation but the study focused upon the causal factors pointed out by the respondents of this study. The most frequently highlighted delaying factors included
corruption, insufficient number of judges, neglect of plaintiffs and defendants and heavy backlog of cases. REFERENCES Bergman, Paul, and Sara J. Berman 2003 The Criminal Law Handbook: Know Your Rights, Survive the System. Consolidated Printers U.S.A. Bhushan, Shri Shanti 1978 Delay and Arrears in Trial Courts. 2. Justice and Compeny Affairs. Law Commission of India. Blue, Richard, and Richard Hoffman 2008 Pakistan Rule of Law Assessment. Management Systems International Corporate Offices. Chowdhury, Mohammad Mizanur Rahman 2013 A Study on Delay in the Disposal of Civil Litigation: Bangladesh Perspective. The International Journal of Social Sciences 14(1):27-35. Dodge, Tamara 2012 Civil Litigation and Procedure. Wisconsin Legislative Reference Bureau. Geary, Patrick, Simpson Thacher & Bartlett LLP 2009 Children’s Rights: A Guide to Strategic Litigation. The Child Rights Information Network. Hameed, Hamza, and Mohammad Kamil Jamshed 2013 Manzil Pakistan: A Study of the Criminal Law and Prosecution System in Pakistan. http://www.manzilpakistan.org/wpcontent/uploads/2014/01/Law-andJustice-Study-on-Criminal-Prosecution.pdf Kaweesa, Godfrey 2012 Case Backlog and The Right to Due Process: The Uganda Judiciary, Makerere University. Khan, Niaz Muhammad 2011 Judicial Estacode: Pishawar High court.http://www.peshawarhighcourt.gov .pk/images/Final%20Judicial%20Estacode. pdf Kumar, Vandana Ajay 2012 Judicial Delays in India: Causes &
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Remedies. Journal of Law, Policy and Globalization 4:16-21. Pakistan, Law and judicial commission 2009 National Judicail Policy. Secretariat Law and Justice Commission of Pakistan. Prest, Wilfrid and Sharyn Roach Anleu 2004 Litigation: Past and Present. Academy of the Social Sciences in Australia: UNSW Press. Shah, Raza Ullah, Shadi Ullah Khan, and Sumera Farid 2014 Causes for Delay in Civil Justice in Lower Courts of Pakistan: A Review. Pakistan Journal of Criminology 6(1):47- 67. Siddique, Osama 2011 Approaches to Legal and Judicial Reform in Pakistan: Post Colonial Inertia and the Paucity of Imagination in Times of Turmoil and Change. Development Policy Research Center. Takenaka, Toshiko 1999 Comparison of U.S. and Japanese Court Systems for Patent Litigation: a Special Court or Special Divisions in a General Court?. Casrip Publication Series. © 2015“The Explorer Islamabad” Journal of Social Sciences-Pakistan
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