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May 22, 2020

Law for litigant in person

Opinion

May 22, 2020

Some years ago, when celebrated human rights lawyer (late) Asma Jahangir was approached for a fee quote to file public interest litigation in the Islamabad High Court, she did not charge a fee but asked for her travel cost from Lahore and some munshi (assistant) expenses.

In the same case, when another known lawyer was approached, he quoted Rs5 million as fee along with travel expenses and hotel stay. The third quote from a senior Islamabad-based lawyer was Rs200,000 as fee.

This reflects the deep variation in determining compensation by lawyers while applying on themselves the ‘Canons of Professional Conduct and Etiquette of Advocate’ as contained in the Pakistan Legal Practitioners & Bar Councils Rules, 1976.

The broader guidelines, regulated by the Pakistan Bar Council, for the lawyers say that in fixing fees, advocates should avoid charges which overestimate their advice and services as well as those which undervalue them and that a client's ability to pay cannot justify charge in excess of the value of the service, though his/her property may justify a lesser charge or even none at all.

“The reasonable requests of a brother advocate should also receive special and kind consideration. In respect of widows and orphans of an advocate, all advocates shall assist them free of charge,” the canons of professional conduct add. The government also funds such pro-bono services.

While clarifying that these are mere guidelines in ascertaining the real value of the service, the canons identify six factors in this regard. These include the time and labour required and the novelty and difficulty of the questions involved and the skill requisite properly to conduct the case.

Whether the acceptance of employment in a particular case will preclude the advocate's appearance for others in cases likely to arise out of the transaction, about which there is a reasonable expectation that otherwise he would be employed, or will involve the loss of their business while employed in a particular case is another factor for the lawyer to consider.

The customary charges of the bar for similar service and the amount involved in the controversy and the benefits resulting to the client from the service; the contingency of the certainty of the compensation, and the character of the employment, whether casual or for an established and constant client of some other considerations but none in itself, is the controlling factor. A lawyer is also advised that it should never be forgotten that the profession is a branch of the administration of justice and not mere money-making trade.

But these are internal factors for the lawyer to consider. The consumer or a prospecting litigant, on the other hand, does not know these factors and has no guidelines for determining the lawyer fee and understanding the total cost of the litigation he is planning to enter.

Should a lawyer fee be fixed based on his/her qualification, experience, success rate, eloquence, or logical arguments?

Foremost, what is the market rate of the criminal, civil, or constitutional case? A consumer/client needs to be guided if a pleader's services should be charged per hearing basis or per hourly or lump sum and for how much time.

Not much research is done on the subject though; a study ‘Understanding the informal justice system: Opportunities and possibilities for legal pluralism in Pakistan’ found that around 50 percent of the respondents answered high legal fees of lawyers as a reason which limits their access to formal justice as well as their reluctance to access formal courts.

So those who cannot afford legal services and those for whom the state will not provide legal aid comprise the more significant part of the population. Therefore, most members of the public who become involved in legal proceedings will have to represent themselves.

This group of people avail the option of being ‘self-represented litigants’ or ‘litigant in person’. Though this ‘litigant in person’ is not prohibited in the prevailing law and there are reports that it is very much in vogue in Pakistan, no research is available on their numbers. The lawyers, however, tend to discourage self-represented litigants, saying that non-lawyers are under the illusion that advocacy is like vomiting grievances in the court, which otherwise is far more specialized and nuanced.

Still, this option is very much part of the scheme for administering justice in Pakistan as the Principles of Policy of the Constitution requires the state to provide 'inexpensive and expeditious justice,' but this is not captured in the ten-year-old National Judicial Policy of Pakistan.

Evolved in 2009, the policy is a reaction to the lawyers’ movement for the restoration of the judiciary. “ The then chief justice Iftikhar Muhammad Chaudhry explained the rationale saying that the people of Pakistan have reposed great confidence in the judiciary's ability to redress their grievances and grant them relief.

“They have very high expectations of the courts to settle their disputes, restore their rights/entitlements, and maintain peace in society by sending the guilty behind bars. I thank the people for believing in us! We must strive hard to meet their expectations. This is time to repay our debt to the nation. We could do so by addressing the perennial twin-problems of "backlog" and "delays" in the system of administration of justice,” the top judge promised.

The policy, without mentioning the operational period or the goal, is written in the format of an action plan to reform the judiciary without outlining broader constitutional vision and goals. The policy focus to date remains independence of the judiciary from other pillars of the state and speedy justice and ending backlog.

But this did not impress many. The Human Rights Commission of Pakistan in its 2019 report said that there were close to 1.8 million cases pending in the judiciary, as against 1.9 million in 2018. In June, following the 2017 decision to establish model criminal trial courts to dispose of cases more swiftly, the chief justice of Pakistan approved the establishment of another 57 model courts at the tehsil level. However, observers have questioned their performance, especially in the context of the long-awaited reform of the criminal justice system.

The Law and Justice Commission of Pakistan is a federal government institution which is responsible for policy implementation and reform of law and justice institutions to be fair and inclusive; strengthening organizational capacities and accountability to be effectively responsive to citizens' security and justice needs and wellbeing; and empowering citizens to assert their rights and claim their entitlements and exercise their duties and obligations.

It is also managing the ‘Access to Justice Development Fund’, under which citizens are being empowered by providing them with the Urdu versions of different laws. But what is missing is guidance on how to prepare oneself for litigation or guidelines on court proceedings under different laws. Similar guiding code should be developed for self-represented litigants on how to prepare and present arguments in court.

Besides identification of laws where people can fight their case easily, the Pakistan Bar Council should also develop guidelines for lawyers to observe while helping the court in administration of justice in cases in which the litigant in person is involved.

The writer is a freelance contributor.

Email: [email protected]