October 28th, 2020
By Hamid Riaz
On Tuesday the Khyber Pakhtunkhwa (KP) Bar Council announced that they would extend their ongoing strike against changes made to the Code of Civil Procedure (CCP) 1908; the strike which began on the October 17 has now been extended to November 3. In addition to the strike, the KP Bar Council has also filed a petition against the drastic changes made to the CCP 1908 by the KP provincial assembly through the Khyber Pakhtunkhwa Code of Civil Procedure (Amendment) Act, 2019.
Meanwhile, negotiations are underway between representative committees of the Bar Council and the provincial government. A Peshawar High Court (PHC) bench comprising of Justice Lal Jan Khattak and Justice Syed Arshid Ali hearing the Bar’s petition advised the committees to resolve the matter before November 3, the next date of hearing.
Reasons behind the Strike
Shahid Raza, vice-chairman KP Bar Council called the government’s amendments “unconstitutional” stating that these changes will create undue problems for the litigants and will put further pressure on an already over-burdened High Court. He also criticized the formation of “local commissions” for the purpose of collecting evidence calling it a return to the “Jirga System”.
Nouman Muhib Kakakhel, advocate PHC and a passionate supporter of the strike explains that “per the previous rules a civil case decided by a civil judge could be challenged in a district court and then in the high court. But according to the new rules civil cases decided by civil judges have to be directly challenged in the high court, bypassing the district court. This not only takes away one avenue of appeal from the litigant but also places an additional burden on the PHC which at this point has only 20 serving judges. This will create further delays in cases instead of speeding up the process.” Nouman Muhhib Kakakhel also claims from personnel experience that even after the passage of the law in many cases the high court has to refer cases back to the district courts.
But for the lawyers’ community, the issue is more than a mere matter of legality. Fewer cases in the district courts mean fewer cases for the large army of lawyers practicing exclusively at the district level.
“In this time of economic hardship the government should try to preserve existing means of employment instead of doing the opposite,” asserts Nouman.
A critical view of the strike:
Shabbir Gigyani, senior Advocate of the PHC is a bit more critical of the strike being observed by the lawyers’ community. “Serious criminal cases like that of murder cannot be heard by civil judges and are heard directly by district-level judges. In such cases after the district judge announces the verdict the accused has 2 possible avenues of appeal; the high court and possibly the supreme court. It’s unfair to demand that litigants in civil cases like property disputes avail 3 avenues of appeal after the initial verdict (district court, high court & supreme court) while litigants in more serious cases like murder get only 2 possible avenues of appeal,” explains Advocate Gigyani.
Gigyani claims that the lawyers’ strike is not about benefitting litigants instead it is harming them by causing undue delay in cases being presently heard by the courts. “Consider this, the new CPC proposes that civil cases be finalized by courts within 90 days otherwise a written request for an extension in this period has to be filed in front of the higher judiciary. The lawyers’ community is demanding that the initial time limit be extended to 1 year. Tell me, what will benefit litigants more, cases being finalized in 90 days or cases being finalized in 1 year?” asks a confident Gigyani.
For their part supporters of the strike claim that time limits exist for other laws as well, such as family law, but are rarely followed. According to them, the 90-day limit is not ‘practical’ and due to the current state of the legal system, it is impossible for a case to be decided in 90 days.
Formation of local commissions a return to the Jirga system?
The new CPC rules stipulate that judges can mandate the formation of a “Commission” comprising of lawyers, retired judges, and other relevant personnel for the purpose of collecting evidence/statements/testimonies. This move has been termed as a return to the Jirga system by lawyers supporting the strike. They assert that evidence/statements/testimonies should be collected by judges themselves because they have the required expertise and authority to do so. Also, commissions are prone to making technical/legal mistakes in the collection process which causes delays and complications in the cases.
Advocate Ans, a lawyer working with the AGHS Legal Aid Cell, while agreeing to the apprehensions raised by the protesting lawyers points out that the formation of commissions for collecting evidence is a normal practice and is not an issue specific to the KP CPC amendments. “Courts all across the country form these local commissions because collecting statements etc. is a fairly lengthy process and takes up a huge amount of time of the courts. But there are problems with this method and in many cases the statements etc. collected by the commission are challenged by one of the parties in front of the judge, prolonging the case”.
This is not the first time lawyers have called for a strike regarding these amendments. Strikes were held in December last year and January this year as well. But since then the government and the bar have not been able to find a middle ground regarding the issue. And poor litigants have to suffer because of this prolonged tug of war between these two powerful entities.