THE LAHORE HIGH COURT OF THE FUTURE Hassan Niazi Hassan Niazi holds an LL.M. from New York University where he was a Hauser Global Scholar. He is currently a Senior Associate at Axis Law Chambers and also a Visiting Faculty Member at the Lahore University of Management Sciences. 180 Pakistan Law Review [Vol: IX ABSTRACT In 2016, the Lahore High Court celebrated 150 years since its creation. This milestone should be used as a moment of reflection for the institution to brainstorm over how it can improve to become a model institute of justice in the country. This essay examines how, through the use of case management systems and technology, the Lahore High Court can strive to overcome the inefficiency that plagues our justice system. Furthermore, it argues for the Lahore High Court to embrace diversity and dissent as values that are essential features of a model institute of justice. The paper, although not strictly legal, aims at identifying certain areas in which the Lahore High Court is deficient, and then suggesting viable solutions to these problems. It asks that we now set our sights on the Lahore High Court of the future, and aim to make this institution more efficient, more diverse, more open-minded and finally more just. 2018] The Lahore High Court of the Future 181 WHERE PAST MEETS PRESENT Besides the long stretch of road called the Mall, in the shadow of Anarkali and the General Post Office, lies the hub of Punjab’s legal community. Its majestic red brick etched with history, the Lahore High Court is a grand sight. Walk inside and enter one of its many courtrooms and you will watch the intersection of past and present come alive before your eyes. While the courtrooms may be built in the old architectural style that peppers most government structures in Lahore, you can still see the incremental changes brought to it through the passage of time. New courtrooms have been added, floors have been redone, and new faces sit dispensing justice while the portraits of former judges look on from the walls. It is difficult to avoid the past while standing in the present when one is in this Court. Yet, the current Lahore High Court must look towards the future as well. Its grandeur cannot be maintained by mere architecture and history alone. Having celebrated 150 years since its creation in 2016, the Court needs to sharpen its understanding of what the future needs from it, if it is to be considered one of the best institutions of justice in the country. This paper comments on what the Lahore High Court should strive to achieve in the future. It looks at the existing state of affairs and points out improvements that can be made with regards to them. Due to lack of space, it does not focus on substantive law issues, but rather on improving the court’s role in being a model institute of justice through methods such as, inter alia, case management and the use of technology. This paper strives to show that through the implementation of these ideas the Lahore High Court can become a model court of justice for this country. I. CASE MANAGEMENT When asked about the problem with the justice system in Pakistan, any random individual on the street will most probably answer with one word: delay. 182 Pakistan Law Review [Vol: IX A shocking example of delay in our court system is shown by an anecdote narrated by Professor Osama Siddiqui.1 While interviewing litigants with pending cases before the courts in Lahore, one respondent shared his experience by saying: ‘Let me give you an idea of how long my case has been running. As a child, I used to accompany my grandfather when he came to the court to pursue this case. I am a grown man now and the case is still undecided after over 30 years of litigation.’2 Through meticulous research, Professor Siddiqui gauged the experience of litigants before the courts in Pakistan with regards to delay. The resulting statistics were far from optimistic. One common factor many people identify as the cause of delay is that the two procedural codes governing the law in Pakistan - The Code of Civil Procedure, 1908 and the Criminal Procedure Code, 1898 - are outdated relics of our colonial past that no longer serve any purpose in modern times. It is said that the two codes merely add to the delay of cases and are in dire need of reform. In some respects, it is true that procedural codes need reform. The United Kingdom, after all, reformed its procedural codes on the basis of the recommendations of Lord Woolf, while Pakistan keeps to its old ways. However, the constant delays faced by litigants in Pakistan are not solely due to the procedural codes. That is too reductive a reason. The existing legislation under, for example, the Code of Civil Procedure, 1908 and the High Court Rules, does contain solutions to chronic delays. The real problem is that these solutions are not enforced the way they should be by the courts.3 An example of this can be seen in Order IX of the Code of Civil Procedure, 1908, which contains detailed provisions regarding the appearance and consequences of absent parties. At a glance, it seems that this provision, if followed, provides adequate safeguards regarding the ‘adjournment’ culture that pervades litigation at all levels of the court hierarchy4. The final report of the 8th Judicial Conference recently held in 1OSAMA SIDDIQUI, AN ALIEN JUSTICE: PAKISTAN’S EXPERIENCE WITH FORMAL LAW (Cambridge: Cambridge University Press) (1st ed. 2013). 2Id., at 121. 3JUSTICE (R) FAZAL KARIM, ACCESS TO JUSTICE IN PAKISTAN, 363 (Lahore: Pakistan Law House) (1st ed. 2003). 4The number of pending case was estimated at 1.7 million in 2015: Rizwan Shehzad, How Adjournments Adjourn Justice, The Express Tribune, 26 October 2015, https://tribune.com.pk/story/979052/how-adjournments-adjourn-justice. By early 2018 the number had reached 2 million: ‘as per the latest statistics of the Law and Justice Commission of Pakistan (LJCP), there are 38,539 cases pending with the SC, 293,947 with the five high courts and 1,869,886 cases with the subordinate judiciary of the four provinces and the federal capital’. Malik Asad, Over 1.8 2018] The Lahore High Court of the Future 183 Islamabad seems to sing to the same tune when it made the following suggestions: ‘Judges must actively avail the powers granted to them under various laws to curb delays. For example, the maximum duration of stay orders, or the submission of documents within a given time period, must be strictly followed. Frivolous applications and appeals should be disposed at the earliest opportunity and strongly discouraged’.5 A belief in the people of the country that the courts will not give them justice within a reasonable amount of time will have negative consequences for the overall legal system. As Justice Fazal Karim puts it, the loss of faith in the civil justice system has led to the complete lack of tortious litigation in the country.6 Faith in the judiciary is evoked in the people through the realization of effective, speedy and just remedies. One possible method to minimize the constant delays in litigation is to implement a more effective system of case management. The United Kingdom was able to implement such a mechanism after the 1995 ‘Access to Justice Report’ prepared by Lord Woolf. The emphasis of the report lay in the nature of the adversarial system of litigation that is prominent in common law jurisdictions and its problems in creating delay. This system allows lawyers to dictate the pace of litigation in courts. The solutions proposed by Lord Woolf involved, inter alia, giving a more interventionist role to the courts. The courts would assess the nature of each case and then arrange a schedule of litigation accordingly. The Lahore High Court can work towards such a reform agenda, given that under Article 202 of the Constitution of Pakistan it can make rules regulating its own practice and procedure, as well as any court subordinate to it. The Access to Justice Inquiry led Lord Woolf to realize that certain ‘codes of practice’ were needed for ‘pre-action conduct…for common types of disputes that were often low value but which were frequently litigated.’7 These codes of practice would become Lord Woolf’s ‘Pre-Action Protocols’. The chief objective of these protocols was to act as catalysts for the early exchange of information about the claims being disputed in court and encouraging the parties to move towards Alternative Dispute Resolution million Cases Pending in Pakistan’s Courts, The Dawn, 21 Jan 2018, https://www.dawn.com/news/1384319. 5Law and Justice Commission of Pakistan, 8th Judicial Conference, Islamabad, 5-6 May 2018, Press Release, Group III, Page 2, Point 6, http://ljcp.gov.pk/nljcp/ assets/dist/news_pdf/f0ec2-ljcp-islamabad-declaration-dated-5th-of-may.pdf 6Id. 7THE WHITE BOOK SERVICE, CIVIL PROCEDURE, I (London: Sweet and Maxwell) (2012) 2563. 184 Pakistan Law Review [Vol: IX (ADR). The eventual aim of the protocols is to make litigation in court a matter of last resort. According to Lord Woolf the pre-action protocols ‘are intended to build on and increase the benefits of early but well-informed settlements which genuinely satisfy both parties to disputes.’8 How is this to be achieved? One method is that parties are expected to ‘explore alternatives to court proceedings and settlement thoroughly’9 before initiating proceedings in court. Courts have the power to dismiss proceedings ‘if a more appropriate means of resolving the dispute is available’.10 Most importantly, the courts are expected to work towards ‘defining and narrowing the issues before proceedings are issued so that the case can be allocated to a ‘track’, a timetable set for the disclosure of evidence and the trial at an early case management stage’.11 The reference to a ‘track’ is interesting here.