OPINION OF ACTION RESEARCH; Justice Delayed is a category of manouvering, may be designed to deviate fairness of time relevancy the justice consequences in situations, a case is PANAMA hearing.
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JUSTICE DELAYED
REPORT OF A SEMINAR ON “HARDSHIP TO LITIGANTS AND MISCARRIAGE
OF JUSTICE CAUSED BY DELAYS IN COURTS”
RAWALPINDI, JULY 11-13, 1991
‘The many causes of delay’
Presented
By Makhdoom Ali Khan
Barrister-at-Law
The
delays of litigation and the plight of litigants have been a subject of legend
and literature for centuries. Shakespeare ranked "the law's delays"
amongst "the whips and scorns of time"1. Dickens said that getting trapped in a law
suit was like being ground to bits in a slow mill: It's being stung to death by
single bees; it's being drowned by drops; it's going mad by grains2.
Franz Kafka's Joseph K waits in vain, an instant before his death, for justice from
an unseen judge and an inaccessible court. What Faiz and Faraz and Jalib have
said about the judicial system may, if translated into English prose, border on
contempt. Qurat-ul-Ain Haider, in her recent novel, calls litigation a
'talismanic jungle -- a magical forest, for a person trapped in it there is no
way out3.
Lawyers
have not been particularly pushed about such literary denunciations, a bad
press and cries of "hang all lawyers"4. Things which do
not impede their money-making do not bother lawyers too much. These, however,
are particularly difficult times. Literature no longer merely reflects life.
The reality is far worse. Public confidence in the legal system and the legal
profession is at its lowest ebb. An increasingly large number of people who
have had a brush with the law are becoming more and more convinced that the law
cannot offer effective and efficient solutions to their problems.
We
cannot simply continue to look at the issue as something which delays the
disposal of a matter before a court. The old view that litigation was basically
a private matter between the parties which could be dealt with at their
convenience is no longer valid. Delay has an impact on the quality of justice5.
With each passing day the value of judicial justice is diminished for someone
who is being crushed in the litigation mill. Delay has another dimension as
well. It blocks access to justice. Prospects of unending litigation and the
inefficiencies of the system deter the citizen from using the litigation
process to pursue his claims. He explores options other than the law.
The
roots of some of our law and order problems can be traced to the inability of
the courts to decide disputes in a reasonable period of time. It is no secret,
for instance, that frustrated by the slow movement of the wheels of justice a
number of landlords now prefer to eject their tenants through ruffians rather
than rent controllers. They also know that even if an unlawfully ejected tenant
approaches the courts for relief the matter will easily drag on for years. With
time the ejected tenant will lose his will to fight and either give up or
negotiate a compromise on the terms desired by the landlord.
This
particular example also proves the general rule that delay in the disposal of
cases generally works to the advantage of the haves and the powerful in society
and against the have-nots. Those who cannot exercise societal control, peddle
political influence or flex financial muscle to sort out their problems are precisely
also the people who cannot afford to wait ad infinitum for judicial justice.
They are the ones whose need for inexpensive and expeditious justice is the
greatest. They are also the ones who need the courts the most for the other
avenues of redress are not open to them.
A
legal action may at times challenge the existing state of affairs. The
challengers may be those who are denied a share in power by the society:
minorities challenge a power structure created by the majority, women challenge
a structure created by men7, the poor, the disabled and
the disadvantaged challenge a structure created by the wealthy, the able and
the advantaged. Talented, able, wealthy, Muslim males often do not need to
resort to such challenges because they are capable of ordering the affairs of
the state and the society to their private ends in a way the others are not.
They invariably do not need the courts. They have access to the generals, the
bureaucrats and the legislators which the others lack Further, these state
functionaries identify with them but not with the disadvantaged. Further, the
existing state of affairs is more tolerable for those who already have power as
past exploitation has created a system which favours their interests8.
The
problem, however, is that the law too does not afford much relief to the poor.
It also exists to protect the claims of the powerful and legitimise the
regime's demands. It is, therefore, hardly surprising that disputes amongst the
power elite and official requests for legitimation, like the legalisation of
martial laws, are heard for weeks on end by patient full courts and decided in
weeks. Reinstatement claims by workers, criminal trials and ordinary civil
suits are not decided for decades. The legal system works to the advantage of
the advantaged. The disadvantaged cannot survive litigation. A protracted fight
which may begin in the court of a civil judge or a magistrate and end twenty
years later in the Supreme Court will wreck them physically and ruin them
financially.
When
institutions produce results after such a long period of time they cease to be
forums of dispute settlement for the poor. As litigation becomes more
protracted and delays unending the number of those who look at the courts as
fountains of justice dwindles. More and more people view them as
"cesspools of manipulation. Litigation is widely regarded as infested with
dishonesty and corrupt manipulation9." If public opinion is any
criterion of success or failure, delays not only overburden an even otherwise
flawed legal system, they break it down.
One
is, therefore, not surprised that every other day a call is made either in the
name of Islam or socialism or efficiency to formally announce the demise of the
law as we know it. No doubt that there are dangers in the
back-to-the-drawing-board approach when dealing with systems which though
imperfect have been in operation for centuries but when the benefits of the
system cannot ever trickle down to the backward classes, when all the
advantages are soaked up by the privileged, when all change is thwarted by
vested interests and any improvement made impossible by those in positions of
power, such "scrap the system" solutions are the only ones likely to
succeed.
Lawyers,
legislators and judges are people in positions of power in our political
system. They have stake in the survival of the system. If they want to delay
its overthrow they have a particular responsibility to take a hard look at the
justice delivery system of the state and see whether it can respond to the
needs of the people. Of course there are no perfect solutions10 but
that should not deter us from a serious examination of the nature of the
system, its shortcomings and from considering remedies which may range from
tinkering with the status quo to systemic change. The legal process after all
is "not a pageant to be admired by tourists for being old and quaint. It
is, rather, a vital organ of government to be assessed by reference to its
ability to further the goal of justice under the law11."
The
causes for the delay are many and complex12. They range from the
litigious nature of our people13 to the increase in litigation14;
from the archaic nature of our procedural laws to the shortage of judges; from
the limited means and facilities at the disposal of the courts to our failure
to find alternative dispute-resolution methods, from unlimited adjournments
obtained by lawyers to the conflicting judgements delivered by courts and from
the economic and political stranglehold which every government tries to impose
on the judiciary to the inherently flawed nature of the system. The list is not
exhaustive. Yet, it is impossible to comprehensively deal even with this list
within the limits of this paper. Further, this is not a consensus list. The
causes outlined here are not accepted universally as correct15.
Any
attempt to understand the problem of delays in courts must begin with an
examination of the origins of our laws. Our current system of law was a product
of the British Raj. Its primary concerns were land and criminal law. Its
primary purpose was to ensure that property relations were conducted within the
channels defined by the new rulers and that the definition of crime and order
remained the exclusive preserve of the colonial masters.
The
criminal courts enforced imperialist norms and morality. The civil courts were
primarily established to deal with the disputes between zamindars, zamindars
and money-lenders and zamindars and tenants. The judiciary was initially
neither conceived nor created as an independent institution for efficient and
effective distribution of justice within the society. It was established merely
as an adjunct to the machinery for the enforcement of law and order.
It
was also important for the British to ensure that all customary claims and
entitlements were pursued in and adjudicated upon by their courts. The Muslim,
Hindu and other customary laws were retained but their definition and
interpretation was placed in the hands of the appointees of the Raj. The Quran
and Hadith and the Dharmasastra were, therefore, read and applied by these
courts. This ensured that their interpretation would not be hostile to colonial
purposes. These claims even when not governed by the laws of the Raj were
processed through forums created by it so that every development could be
monitored.
Later,
the Law Commissions appointed by the British were charged with the function of
expanding the law and the detailed statutes on property, crime and commerce
were the result. "The purpose of this expansion of the law was threefold:
first, to ensure that all property and commercial transactions were placed on a
clear and 'modern' basis. The second was to leave the state with a sufficient
armoury of powers to enforce law and order and check dissidence. And, the third
to ensure that all disputes were routed through the law courts and legal
processes which were elaborately set up. Technically, it was the British with
their compilation of laws loosely called the Anglo-Indian Codes which sought to
bring much of society under law. It also sought to make society think of itself
in the manner in which the law had cast it16."
Without
thinking whether this system at all suited our purposes an independent Pakistan
built on it. A change of system would have required a major political and
financial effort which may have been beyond the reach of a young country in
dire financial straits. Even much later virtually no thought was given to
making improvements in the system which would make it possible for it to
efficiently process civil and criminal disputes and respond to the changing
needs of time.
Litigation
has become and continues to become more complex all over the world in the
twentieth century. Our judicial system remains woefully inadequate to deal with
it. It is not geared to decide the number of cases which continue to rise with
the population explosion and a growing awareness about rights and which due to
social change, political disarray, the growth of modern technology and
development of commerce and industry cannot be decided by referring to
precedents alone. Instead of reforming our laws of procedure to effectively and
swiftly provide legal solutions to modern civil and criminal problems the
legislature has responded by creating a patchwork of special courts which lack
both the credibility and the ability to effectively deal with such matters.
At
the same time the system of appeals, second appeals, revisions and petitions
permits all such disputes from the smallest and most straightforward to the
largest and highly intricate to be litigated right up to the Supreme Court.
This is true not only in respect of cases where the court has finally decided
the matter but also where interim orders have been passed. So while the main
case gathers dust in the trial court lawyers may have argued fine points of
grant of bail, amendment of pleadings, quashment of proceedings and grant of
injunctions on more than one occasion before the Supreme Court.
Everyone
knows that the final solution may take a long time coming. The nature of the
docket of the courts has, therefore, also undergone a change. The courts are
increasingly used in criminal, civil, revenue and constitutional litigation not
for deciding disputes but for obtaining interim relief. The increasing
manipulation of the courts to secure interim relief is the brilliant lawyer's
and the resourceful citizen's response to the law's delays.
The prime examples of decisions on
crucial issues being postponed while interim relief was granted are the
identity card case and the NWFP Assembly dissolution case. Before the 1988
election the Lahore High Court ruled that the voters be allowed to cast their
votes in the general election even if they did not have with them the national
identity card provided they produced other proof(s) about their identity17.
The Supreme Court promptly granted a stay of the matter but has not decided the
issue, as yet. Two general elections have been held in the country since this
stay order was granted, many citizens may have been prevented from exercising
their right to vote due to this stay order but till date the Court has not
ruled whether the judgement of the Lahore High Court was correct or erroneous.
A
Full Bench of the Peshawar High Court last year declared the dissolution of the
Provincial Assembly of NWFP unconstitutional18. The judgement was
promptly stayed by the Supreme Court. Thereafter a general election has been
held, a new provincial assembly has been elected, a provincial government has
assumed office but the case remains pending19.
Interim
relief freezes the issues till such time that the matter is finally disposed
of. This takes years, if not decades. In the meantime either the men or the
issues or both may die. A substantial proportion of the time of the judiciary
is exhausted in deciding such applications. The lower courts, in particular,
are flooded with interim applications. Their disposal takes time. Time which
could have been used to dispose of cases finally. Anyone concerned with end
results will find this intolerable and a great drain on the resources of the
judiciary.
This
makes the system look highly inefficient from a distance. A closer examination
reveals that the system is brilliantly efficient. Those litigants who can
afford to pay get what they pay for. Fee to the lawyer ensures that the issue remains
stuck in the pending list. The lawyer does not promise a solution. He assures
that he will get the problem stuck in the judicial system. On this promise he
delivers. In the end the party which has the greater capacity to survive the
ravages of time and interminable litigation can win. In such controversies only
the haves come out first.
As
the growing size of arrears became too large even for the Government to ignore,
a few attempts, albeit halfhearted, were made to diagnose the malady. Law Commissions
were set up and reports published. One may, therefore, examine these for the
sake of completeness.
In
1958, a Law Reforms Commission was established under the chairmanship of Mr. Justice S. A. Rahman to examine the
causes of judicial
delays and suggest remedies.
It proposed a number of reforms in the civil20 and criminal laws.
It, however, concluded that though the procedural laws21 were
frequently abused, this was more due to the human factor which is associated
with their enforcement or exposition than with any defects in such procedures22.
That these procedures permitted an infinite number of appeals and revisions
from interlocutory as well as final orders and were easily exploited to keep
litigation alive forever did not bother the Commission too much.
Another
Law Reform Commission was set up with Mr. Justice Hamoodur Rahman as its
Chairman in 1967. It submitted its report in 197023. Like its
predecessor this Commission too made a number of recommendations for the reform
of the civil24 and criminal laws25. The Commission
expressed the view that the right to avail of appeals, reviews, revisions and
other remedies provided in the procedural laws were all intended to ensure fair
justice. The time spent in the final disposal of the matter was, therefore,
inevitable. It was of the view that to cut down one or more of the remedies
available will hardly make any difference to the time spent in litigation26.
Some
four years later in 1974, a high-powered Law Reforms Committee again went into
the question of delays. The difficulties experienced by the courts at all
levels in the expeditious dispensation of justice were analysed. It stated that
the responsibility for the delay in the decision of cases was not of the system
as a whole. The Committee listed the shortage of judicial officers, delays
caused by other staff, including process serving agencies and prosecution
agencies etc., and the poor working conditions of the subordinate courts as the
major cause for the accumulation of arrears which also hampered the smooth and
speedy disposal of cases.
The
recommendations made in the report included the extra expenditure to be
incurred in increasing the strength of the judges and improving the working
conditions of the courts. The Committee justified the expenditure on the ground
that it would provide substantial relief to the common man by making the
judiciary provide speedy justice to the people.
For
the future, it was suggested that the power to increase the strength of
subordinate judges should be given to the High Court in consultation with the
Government on the ground that the High Court alone by virtue of its being the
supervising and controlling authority could assess the requirements of courts
for the effective control of judicial work27.
In
1978, a Law Committee for recommending measures for the speedy disposal of
civil litigation was constituted by the Government. In its report28
the Committee observed that the proverbial delays in the disposal of civil and
criminal cases had been discussed and considered by more than one Law Reforms
Commission and high-powered Law Reform Committees after independence. These
bodies had after pinpointing the causes of the delay also suggested the
remedies for dealing with them but the history of each Commission proved that
the recommendations made by them were either not implemented at all or were
enforced in such a haphazard fashion that instead of producing fruitful results
it added to the difficulties29.
These
recommendations are not without merit but even if these were carried out --
which they were not -- the arrears in courts would not disappear. These reforms
may make the courts slightly more efficient and make it easier for a person to
lodge or process his claim but will have a negligible impact on reducing the
total time period of litigation. To be effective they must be accompanied by a
more comprehensive programme of law reform and a critical reappraisal of our
system of justice.
Although
none of the Commissions and Committees have agreed with the proposal to reduce
the number of remedies available to a litigant to challenge both interlocutory
and final orders there is no doubt that the disposal of such challenges
consumes a substantial proportion of the time of the court. It is proposed that
both in civil and criminal cases only one appeal should be permitted and the
remedy of revision should be done away with30.
We
need also to examine some of the proposals which were considered in the United
Kingdom in the "Civil Justice Review"31. These include
making the parties state their cases in detail in the pleadings, including an
indication of how allegations would be proved. Parties should be asked to
disclose their evidence pre-trial if they wished to rely on it at trial. In
these days of delays these will help the witnesses to refresh their memory.
They will also help the counsels and the litigants to judge the strength or
weakness of the case of the other side and facilitate settlement. The rules on
time limits should be set for all stages and strictly observed.
There
are many who suggest that setting legislative time limits for the disposal of
cases can be one solution32. Practice, however, establishes that
while such deadlines appear attractive in theory, they have never worked in
practice. The Industrial Relations Ordinance, 1969, is a prime example. It
stipulates that the labour court must decide a case within 7 days. The judges
have, however, interpreted this provision as directory33 and the
claims of workers, consequently, remain pending for years before the labour
courts34.
Any
system of justice that involves a written record involves paperwork. Delays
are, thus, inevitable. Paperwork takes time, more so as lawyers and litigants
whose interests are served by delay put in their best effort to delay the
completion of the work and gain time. The courts regard most of the time limits
set for filing written statements, production of documents and submitting list
of witnesses as directory and extensions are liberally and generously granted.
The
court staff and registries responsible for preparing records also take time.
The absolutely obsolete office management system of these registries and
archaic technology at their disposal compound the delay. As the work load
increases so does the delay, and the agencies involved become further unable to
cope with it.
Much
of the delay is caused at the level of the registry of the courts. Obtaining
the copy of an order of the court from the registry can at times take weeks.
Though much has been said about the number and quality of judges no one has
ever made an attempt to examine in detail the extent to which streamlining the
work of the court registries will speed up the disposal of the cases.
The shortage of judges is
often stated as a reason for delays. We must, however, remember that the answer
lies not in more judges but in more competent judges. This given the present
salaries and terms and conditions of service of the judges is difficult to
achieve. It is also advisable to remember the note of caution sounded by the
Privy Council in this regard: "The administration of justice is faced with
a problem, not unknown in other countries, of disparity between the demand for
legal services and the supply of legal services. Delays are inevitable. The
solution is not necessarily to be found in an increase in the supply of legal
services by the appointment of additional judges, the creation of new courts
and the qualification of additional lawyers. Expansion of legal services
necessarily depends on the financial resources available for that purpose.
Moreover an injudicious attempt to expand an existing system of courts, judges
and practitioners, could lead to deterioration in the quality of the justice
administered and to the conviction of the innocent and the acquittal of the
guilty35."
The courts need not only
more competent judges and efficient registries they also need executive support
for the implementation of their decisions and this is not always forthcoming.
The efficiency of the courts is further undermined by an almost complete
financial and administrative dependence on the executive. The executive has
always viewed the courts not as forums for dispute settlement but as arenas for
potential conflict. It eagerly uses the courts for its own ends. The need to
improve the financial position, administrative efficacy and efficiency of the
courts is not very high on its list of priorities, however.
The Government is not
unaware of the problems of the judiciary and the time it takes to settle
disputes through litigation. The rulers constantly criticise the courts for
their inability to provide speedy justice and repeatedly promise to remedy the
situation. When it comes to translating these verbal claims into effective
reforms the Government, instead of strengthening the judiciary and providing
financial support to it, finds the solution to judicial delays in the
establishment of special courts. Whenever it wants an issue to be resolved
quickly it sets up a special court with a special procedure in the hope of
securing a special result.
By setting up these courts
the Government expresses a lack of confidence in the already available means of
dispute resolution. It acknowledges that the courts of law have lost the
capacity to decide matters within a reasonable time. Instead of making finances
available to remedy these defects the Government dishonestly bypasses the
established forums to set up courts of its choice and tries its best to fix the
results. No meaningful change is possible unless the commitment of the
Government to judicial reform extends beyond mere verbiage.
Judicial delays are also
increased by a very wide jurisdiction conferred on the Supreme Court by the
Constitution36. The appellate jurisdiction of the Court is
over-broad37. It has an advisory jurisdiction, an original
jurisdiction in Fundamental Right
Cases and in disputes between
Governments and can by way of special leave hear appeals from the decisions of
Service Tribunals, Election Tribunals etc., and all orders and judgements of
the High Court whether these be interlocutory or final. It also has the
jurisdiction to review its decisions.
These provisions were copied straight
out of the Indian Constitution by the framers of our Basic Law. No one bothered
to consider whether such a wide jurisdiction would require not only a very
large number of judges of great eminence and ability but also tremendous
resources. No attention was paid to the criticism of vesting the Supreme Court
with such a broad jurisdiction by academics, judges and politicians in India.
These articles of the
Constitution which give such an over-arching jurisdiction to the Supreme Court
were conceived in the spirit of litigation by those interested in such
litigation. The broad-based jurisdiction of the Court creates the impression
that the justices are there for any litigant willing to take his case all the
way up to the Supreme Court38. Irrespective of the strength or
weakness of the case the litigant is willing to take one more chance and the
lawyer, when paid his fee, cannot see why even in a hopeless case he should
refuse to place for his client one more bet at the legal roulette.
The answer lies in curtailing
the jurisdiction of the Court to adjudicate issues which involve an
interpretation of the Constitution or a Federal law. Respect to the principle
of provincial autonomy also requires that the highest court of the province
should be the final court in all other matters. This wide jurisdiction is
abused and till it exists it will be misused by the Government and its lawyers
even more than the private litigant. Appeals and petitions are filed in even
the most frivolous cases in the hope that these will postpone the inevitable
for a little longer. Recent attempts by the court to clear the backlog have
revealed that after stay orders had been obtained petitions had been kept
pending for years. Lawyers and litigants are guilty of abusing the system in a
manner that has no other value except the mischief of getting matters stuck in
the legal merry-go-round.
In the recent past the
court has become very efficient. It has become commendably strict on
adjournments. Hundreds of petitions and appeals have been decided by it. The
Supreme Court is quite proud of its recent achievement in clearing a
substantial amount of its backlog. So efficiently has the court cleared its
deck that it is now being confidently predicted that before the end of 1991
petitions for leave to appeal will be decided within a
week and appeals within a year.
This
will definitely discourage Supreme Court litigation by those who came to the
court only with the intention of securing interim relief and delaying the final
disposal of the issue. It is interesting to note that the efforts of the court
to speed up the disposal of the cases have been resisted by the bar, strangely
enough, in the name of justice. The refusal to grant adjournments has been
criticised as something which undermines the due process of law. The fact that
delay may be working a worse injustice is conveniently ignored.
While
the pace of work in the Supreme Court has no doubt increased the court must
take care that justice does not become the first casualty of speedy disposal.
It is not uncommon for a Bench of the court to decide twenty petitions in a
day. The working hours are only 3-0. Out of the twenty petitioners even if one
is represented by a heavyweight lawyer arguments may last for about an hour,
particularly so if the Bench is not very receptive. The remaining 19 petitions
may, thus, be decided in 2.0 hours.
On
such a day, on an average, arguments are heard, the judgement of the court
appealed from considered, the law points pondered and a just solution arrived
at in six minutes or less. In these circumstances the court ought to consider
introducing written arguments so that the petitioners who do not have the money
to engage leading lawyers may not go away thinking that in their case justice
was not done.
Some
of this disposal takes the form of remand. The court must be conscious of the
fact that quite often when it remands a case it is condemning the parties to a
decade or more of litigation. The court under the Constitution has the power to
issue such directions, orders or decrees as may be necessary to do complete
justice in a case. This article must be interpreted creatively to decide
matters finally at the level of the Supreme Court.
Remanding
a case may clear a Supreme Court arrear but creates an arrear in another court
and sooner or later that case again becomes an arrear in the Supreme Court. In
a recent case in a dissenting judgment one judge refused to join the decision
to remand the matter. The question being of great public importance he insisted
that the Supreme Court should give an authoritative finding in the matter39.
One hopes that this dissent shall soon become the majority view and the
principle will be extended to all cases to end what may otherwise become
endless litigation.
The
Supreme Court must share some of the responsibility for the delay in the lower
courts. The decisions of the Supreme Court are binding on all other courts in
Pakistan40. A declaration of law from the highest court should,
therefore, speed up the disposal of similar cases in all other courts. This
does not always happen. There are many reasons for it. The most commonly cited is that the
court sits in benches all over the country which are not always aware of the
recent decisions in similar cases by other benches. Conflicting judgements by
the Supreme Court on the same issue are, therefore, inevitable.
Some of this workload can
be reduced if the Supreme Court produces a 'sufficient amount of nationally
binding law'41. The task of the Supreme Court is not to correct
every minor error of the lower courts but to shape national law42.
It must not act as a rationalisation committee for the rationalisation and
revision of all lower court decisions43. Its primary responsibility
is to secure harmony of decision and settle questions of general importance44.
Its only possible function is to work for the general coherence of the national
law45.
The failure of the Supreme
Court to avoid conflicting decisions leaves room for the judges and presiding
oflBcers of the courts and tribunals below to choose and apply any decision
which they think right46. Similar disputes, therefore, continue to
be litigated all the way up to the Supreme Court and arrears continue to mount.
The lawyers have a responsibility not to peddle every case before the Supreme Court
but the court must also clearly state the rules.
In other jurisdictions
courts have started exercising their constitutional and statutory authority to
tackle the problem of arrears. Academics47, bar associations and
judges realised that it was not enough for them to point out that the law's
delays is a serious problem in access to and dispensation of justice and then
wait in the hope that the legislature will one day do something about it. They
have assumed a more active role, in criminal cases, in particular and have
identified factors which the court should assess to determine whether the
accused has been denied a fair trial48 and set parameters49.
In cases where these limits were not observed the courts concluded that the
guarantees of a fair and expeditious trial were violated and in some cases set
the accused at liberty.
The Sixth Amendment to the
Constitution of the United States gives the accused the right to a speedy trial50.
The United States Supreme Court pointed out the difficulties in charting the
boundaries of this right51. The Court, however, clearly ruled that a
defendant has no duty to bring himself to trial, the State has that duty as
well as the duty of ensuring that the trial is consistent with due process52.
It categorically held that "unreasonable delay in run-of-the-mill criminal
cases cannot be justified by simply asserting that the public resources
provided by the State's criminal-justice system are limited and that each case
must await its turn53."
The Supreme Court then identified
four factors which the court should assess in determining whether a particular
defendant has been deprived of his right:
(1) Length of delay
"Until there is some
delay which is presumptively prejudicial, there is no necessity for enquiry
into the other factors that go into the balance ... the length of delay that
will provoke such an enquiry is dependent on the peculiar circumstances of the
case ... the delay that can be tolerated for an ordinary street crime is
considerably less than for a serious, complex, conspiracy charge54."
(2) The reasons given by the prosecution to Justify the delay
"A deliberate attempt
to delay the trial in order to hamper the defence should be weighed heavily
against the government ... negligence or overcrowded courts should be weighed
less heavily but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the government rather than
with the defendant55."
(3) The responsibility of the accused for asserting his rights
"The defendant's
assertion of his speedy trial right... is entitled to strong evidentiary weight
in determining whether the defendant is being deprived of his right... that
failure to assert the right will make it difficult for a defendant to prove that
he was denied a speedy trial56."
(4) Prejudice to the accused
"Prejudice ... should
be assessed in the light of the interests of defendants which the speedy trial
right was designed to protect57,"
The Court had earlier
identified the interests of the accused which this right was designed to
protect: (i) to prevent oppressive pre-trial incarceration, (ii) to
minimise anxiety and concern of the accused;
and (iii) to limit the possibility that the defence will be impaired58.
In Canada the four factors
considered relevant in Barker v. Wingo to the constitutional right to a speedy
trial were reproduced and adopted by the Alberta Queen's Bench Court59.
In another case a delay of 11 months in the trial was considered
"unreasonable" by the Supreme Court of Canada and the conviction was
quashed60.
The Privy Council, in an
appeal from Jamaica61, acknowledged the relevance and importance of
the four factors detailed by the United States Supreme Court. It also
acknowledged "the desirability of applying the same or similar criteria to
any constitution, written or unwritten, which protects an accused from
oppression by delay in criminal proceedings62. The accused who had
been awaiting trial for three years for offences including illegal possession
of firearms, robbery and wounding with intent, after the Court of Appeal had
ordered his retrial, was set free.
The European Convention on
Human Rights guarantees the right to a speedy criminal as well as civil trial
within a reasonable time63. In a civil case where the applicant had
challenged the withdrawal by the Government of his licence to practise as a
doctor and to run a medical clinic, the European Court of Human Rights held
that the criteria for determining the reasonableness of the duration of the
proceedings were the same in civil matters as in criminal proceedings. These
included the complexity of the case, the conduct of the applicant and the
manner in which the matter was dealt with by the judicial and administrative
authorities64.
The court ruled that time
was to be computed not from the date when the action was filed but from the
date when the applicant objected to the withdrawal of his licence. The
reasonable time period covered the whole of the proceedings, including appeals65.
The court held that it was unreasonable to take ten years to decide the
applicant's right to run the clinic. It further held that the case which took
five years at first instance and two years in appeal to determine the
applicant's right to practice was not decided within a reasonable time. It was,
however, made clear that only delays attributable to the State may justify a
finding of failure to comply with the reasonable time requirement66.
In proceedings claiming
compensation for noise and air pollution a three and a half year delay was held
unreasonable67. The court held that the Convention "places a
duty on the Contracting States to organise their legal systems so as to allow
the courts to comply with the requirements of ... trial within a 'reasonable
time' ... a temporary backlog does not involve liability ... provided that they
take, with the requisite promptness, remedial action…68.”
In a case where the
applications for provisional release made by an Argentina national were decided
in 31 days on the first occasion and 46 days on the second, the court held that
the rights guaranteed by Article 5(4) had been violated69.
The Constitution of
Pakistan does not guarantee the right to a fair trial within a reasonable time
in such explicit terms as the Constitution of United States, the Canadian
Charter, the Jamaican Constitution and the European Court of Human Rights. A
constitutional amendment incorporating these rights may, therefore, be
desirable. This, however, is not essential. There is scope for creating these
rights by an imaginative judicial interpretation of the existing Constitutional
provisions.
Article 37(d) of the
Constitution enjoins the State to "ensure inexpensive and expeditious
justice". This provision is placed in the Chapter on "Principles of
Policy" and cannot be enforced through judicial review70. It
can, however, be argued that this duty of the state has also been guaranteed as
a Fundamental Right of the individual in Articles 971 and 1472
of the Constitution. Article 25 of the Constitution which guarantees the right
to equality makes it possible for the courts to test all legislation and
executive action on the criteria of reasonableness.
The right to life and
liberty do not have much meaning when criminal proceedings drag on for years.
The state must be compelled to honour the dignity of man by making the means
and methods available for the adjudication of his criminal liabilities and
civil rights within a reasonable time. If any precedents are required to
substantiate this argument, support can be found in the judgements of the Indian
courts.
The Supreme Court of India
has ruled that the right to life and liberty guaranteed by Article 21 of the
Constitution of India73 demands that every procedure must answer the
test of reasonableness. It must be right, fair and just and not "arbitrary,
fanciful or oppressive; otherwise it would be no procedure at all and the
requirements of Article 21 would not be satisfied"74.
The court built on this
premise in Hussainara Khatoon v. State of Bihar and observed that if "a
person is deprived of his liberty under a procedure which is not 'reasonable,
fair or just' such deprivation would be violative of his fundamental right
under Article 21 and he would be entitled to enforce such fundamental right and
secure his release ... No procedure which does not ensure a reasonably quick
trial can be regarded as 'reasonable, fair or just'and it would fall foul of Article
2175." The Court went on to hold that "it would not be
enough merely to establish more courts but the State Government would also have
to man them by competent judges and whatever is necessary for the purpose of
recruiting competent judges, such as improving their conditions of service,
would have to be done by the State Government ..." for making justice
reach "to the large masses of the people for whom justice is today a
meaningless and empty word76."
Following the guidelines
of the Supreme Court, the High Courts have held that an accused who had been
acquitted after a trial which went on for seven years and where the appeal
against acquittal had been pending for eight years was entided to an
unconditional release and the charge against him was dismissed77. It
was held that a delay of ten years or more, for which the accused was not
responsible, in arriving at a decision at the first and appellate stage was
unreasonable. In similar circumstances it was held that the time of fifteen
years consumed in trial and appeal was unreasonable and so the charges were
dismissed78.
The Supreme Court of India
in another case held that in the case of juvenile offenders below the age of 16
years, where the offence is punishable with imprisonment of not more than seven
years, the case must be tried and disposed off within 6 months79.
These judgments, though
they break new ground, have been criticized for being too narrow. They provide
no relief to juvenile offenders who have committed offences punishable with
imprisonment of more than seven years and there are no time limits set for the
trial of adult prisoners. Even the High Court rulings deal with those who were acquitted
by the trial court. They do not provide any guidance as to whether a person
under trial or one convicted by a trial court whose appeal has been pending for
a long time can apply for having the charges against him dismissed on the
ground of unreasonable delay80.
The provisions of our
Constitution are wider and can be interpreted to guarantee a right of speedy
trial to an individual in civil and criminal cases. Where the criminal trial
has been unreasonably delayed the courts can dismiss the charges. In civil cases
where the Government is a party and the decision of the case has been
unreasonably delayed the individual can be awarded compensation. The common law
must be developed to permit a citizen to sue the Government for damages where
his claim has not been expeditiously dealt with by the courts of the country.
Such judicial activism may
also compel the Government to take action for improvement in an area where it
has also avoided action. The task is not easy. It requires innovation, craft
and courage. It needs a great judge81.
In order to reduce delays,
besides an activist judiciary and better procedural laws we must search for
alternatives which can siphon discontent from courts. Not only the Government
but the judiciary as well as the Bar have a duty to promote dispute resolution
mechanisms other than litigation, which would ease the burden of the courts by
diverting at least a part of the inflow to other forums. This must be done by
strengthening the existing structures as well as by experimenting with new ones.
One such alternative
dispute resolution method recognised by our law is arbitration. Arbitration is
a handy and by now well tried means for dispensing early justice82.
The effectiveness of arbitration as a dispute resolution mechanism has been
compromised by judicial over-interference. Awards are at times set aside for
narrow technical reasons. Its effectiveness as a speedy mechanism is undermined
by the fact that awards are invariably challenged in courts and these
applications remain pending for years. The judges can promote arbitration by
making it clear that the decision has been given by a forum selected by the
parties and the courts will not lightly interfere with it. This may not even
require legislative change. It can be done by construing the term 'misconduct'
in Section 30 of the Arbitration Act, 1940, narrowly.
In many jurisdictions,
which include the United Kingdom and Singapore, small claims are tried without
lawyers, without detailed pleadings and without either side having a right of
cross-examination. The claim and the reply are made by filling out pre-printed
forms.
Usually the proceedings are
completed in one sitting and no right of appeal is provided. In Singapore such
claims, particularly when made by tourists against local businessmen, can be
processed and decided within 24 hours. These examples from other jurisdictions
need to be examined and if found practicable emulated. The pecuniary
jurisdiction of the Small Causes Courts needs to be enhanced to at least Rs.
100,000.00. Such short procedures will considerably ease the pressure of civil
litigation on the courts.
In United States the
growing dissatisfaction of the society with the manner in which the law is
performing its function has encouraged ADR83. Prison inmate
arbitration and mediation for juvenile offenders has been initiated and
neighbourhood justice centres established. ADR is supported by Congress, the
organised bar and the Chief Justice of the United States84.
In India Nyaya Panchayats85
which have jurisdiction to decide small civil and criminal disputes have been
in existence for some time. They are not required to follow the rules of civil
or criminal procedure or the laws of evidence or limitation. Complaints can be
made orally or in writing and no legal representation is allowed. Witnesses are
examined on oath or solemn affirmation. Judgements are in writing. While in
some states these bodies have been able to dispose of a large number of small
civil and criminal claims their success on the whole has been mixed86.
In Pakistan the experiment
of ADR if successful will not only reduce judicial delays but will also help
strengthen local government which is the most neglected, under-staffed and
under-financed branch of government at present. Yet, this is the only level where
the people have some direct access to and contact with their elected
representatives. If the experiment of democracy in Pakistan is to be a success
every effort must be made to ensure that it receives grassroot support and
finds roots in public cofidence. Strengthening local government will be one
very effective way of strengthening democracy.
In India some provincial
governments, lawyers, judges and social workers set up Lok Adalats as a
supplement to and not a substitute of the legal system. A Lok Adalat can take
cognizance of any case transferred to it by a court or tribunal or referred to
it by the district authorities. It can, thus, take cognizance of a
pre-litigation as well as a post-litigation case. It specifies its own
procedure but must be guided by legal principles and the rules of equity,
justice and fair play. Its award has the status of a decree and is conclusive
and final. No appeal lies against it. It
has the same powers as a court to summon
witnesses and order the production of documents87.
These Adalats in 11 States
and Union Territories settled 121,286 cases during 1982-8688. The
overall success of the experiment persuaded the Government of India to enact
the National Legal Services Act, 1987, to bring the Lok Adalats within the
mainstream of the national legal system.
These ADR mechanisms
cannot succeed without the enthusiastic support of the bar and the bench.
Lawyers, however, tend to oppose all ADR which excludes them and thus
undermines their influence and economic benefits. They regard all dispute
resolution without lawyers as flawed. We have lived with justice with lawyers
for such a long time and the results have not been very encouraging. The time
has come for the bar and the bench to give ADR a chance.
While ADR and other methods
of easing pressure off the courts and providing justice without lawyers need to
be seriously considered to provide speedy justice, our enthusiasm for community
power and a non-litigious society should not blind us to the fact that these
schemes can also become vehicles for controlling the disadvantaged have-nots.
The alternatives to litigation can at times simply become reforms offered by
the legal community to marginal clients. This may in the end create, as
Auerbach warns, "a two-track justice system that dispenses informal
'justice' to poor people with 'small' claims and 'minor' disputes, who cannot
afford legal services, and who are denied access to courts89."
Eternal vigilance is, therefore, essential for the success of such programmes.
I am, however, not
entirely convinced that even if all the reforms outlined above are carried out
they will bring about any great changes. In particular, these reforms even if
carried out will not change either the structure of the legal system or the
outlook of the lawyers. It may not be possible to change these in the near
future but there is no harm in taking a look at our system and the way we work.
The present legal system
as we all know is a British creation. As this system started taking shape,
having an impact in shaping the political economy and influencing social
affairs the British encapsulated it in a black letter law tradition. In this
tradition the law is interpreted according to the rules understood only by its
practitioners90. Its main
concern is to service the narrow, everyday needs of the legal practitioner and
the administrator. The legal literature which was necessitated by the growth of
litigation concerned itself mainly with books meant for lawyers.
The philosophy of the law, its
relation to morality, the social background of the lawyers, judges and
administrators and its impact on the growth of society were completely ignored.
After independence this
tradition was continued. While practitioners' handbooks abound there is not a
single book in this country which examines the social content of the law and
how it can work or why it has failed and the extent to which it has failed to
service the needs of the great majority -- the poor of our country. In spite of
the growing difference between the rich and the poor, in spite of the social,
religious and ethnic divides which are pulling the country apart, in spite of
the failure of the legal machinery to do anything for the disadvantaged and in
spite of the social rhetoric of the Constitution, law colleges, lawyers and
judges remain concerned with statute and case law.
The present legal system
is supported by lawyers who are fully committed to it, have a stake in its
continuance and are convinced of its virtue91. It is through the
courts of which the lawyers are an integral part that the state legitimises its
authority. The continuation of the system serves their ends as much as it serve
the needs of the state. The power which they enjoy within the system confers
economic benefits on them. The lawyers will, therefore, always insist that
there is no viable alternative to the prevailing system and will reject out of
hand all proposals for a basic change.
The proposals for
reforming the system which emanate from the practitioners of law, therefore, never
extend beyond the technical reformation of procedural laws. Not a single report
produced by the many law commissions and committees provides any meaningful
suggestion for making the law reach out to the disadvantaged. Handicapped as we
are by the complete lack of information, data, reports and books about the
social origins and impact of our law reform proposals, like the ones being made
here, are a product of intuition not investigation.
We also fail to ask
ourselves what can be done with the courts. While talking about using the
courts for social justice we tend to forget that they are set up by the State.
The State represents a particular power elite and did not create these courts
to change the social structure and the social balance which work to the
advantage of the power elite. The
lawyers are a part of this power elite-notwithstanding a few attempts by middle
class lawyers to cleanse their conscience and use law to help the poor -- and
will not permit a change of the system. Such
a change threatens their position and they in conjunction with others will use
their nuisance power to retain their route to fortune92.
Those who created the
courts also made us believe that they were safe and that they were independent.
Even an attempt to challenge this premise as false was promptly squashed by the
use of the law of contempt. Adherence to the black letter tradition prevents us
from asking how law is used to subjugate people. Discussions about courts are
limited to formal technical evaluations of their work. No one in this country
has evaluated the working of the courts by a social critique of law and
litigation.
If the system has to be
reformed we must understand that the judiciary is a unique bureaucracy created
by the State and guided by the market economy of private lawyering. It is a
unique bureaucracy in the sense that it is granted autonomy in its internal
management methods. The British understood this. They knew that it was central
to the survival of the law to maintain the image of judicial independence
because if it was discredited it will not be able to legitimate the policies of
the Raj. They accepted its correctives as independent assessments of what was
really necessary for the survival of the regime and, thus, enabled the courts
to legitimise status quo. They knew that the courts will never manufacture
legal doctrine which will be a real threat to the regime. Headlong
confrontations with the judges by shortsighted governments after independence
have shattered this image and brought not only the impartiality of the judges
but also the neutrality of the law into question. It is this development which
makes the legal community insecure and prompts them to use legal aid and public
interest litigation to keep the number of defectors down.
Legal aid and public
interest litigation, the much touted wonder drugs for curing the vile social
ills which afflict our system of justice, only increase litigation and the
domination of law over the life of the poor. These push us further towards a
litigious society and create pressure for abandoning extra-legal solutions.
This perfectly fits the economic interests of the lawyers and perfects their
hegemony. It does not transform the law into a discipline which can alter the
lot of the poor. It only makes the poor believe in the law.
Law is a very
sophisticated and subtle instrument of oppression. "An understanding of
how this is done goes to the root of understanding how modern societies, though
notionally committed to equality, come to maintain vast differentiale between
the rich and the poor in the name of justice93." Till such time
that we continue to propose reform without understanding this basic reality,
our efforts are not likely to be very successful.
REFERENCES;
[1]. Hamlet, m. i. 70-2. , ,
2. Charles Dickens, Bleak House, 1853, Ch. 5.
He said of the Court of Chancery that 'there is not an honourable man amongst
its practitioners who would not give -who does not often give - the warning,
"Suffer any wrong that can be done you, rather than come here"'.
Bleak House, Ch. 1.
3. Qurat-ul-Ain Haider, Chandni Begum, 1990,
p. 186.
4. "The first thing we do, let's kill all
the lawyers": Shakespeare, Henry VI, Part U, iv. ii. 86-87. ,
5. Michael Zander,
A Matter of Justice: The legal System in Ferment, 1988, p. 167.
6. Timothy M. Swanson, A
Review of the Civil Justice Review: Economic Theories Bebtnd the Delays in Tort
Litigation, 1990 Current Legal Problems
185,193.
7. For quotas based on
sex which discriminated against women in admission to medical colleges and were
struck down as unconstitutional see Shirin Munir v. Government of Punjab, PLD
1990 SC 295, and Farhat Jaleel v. Province of Sindh, PLD 1990 Karachi 342.
8. Valkenburg, Inside the Litigious Society, 85 Col L Rev
216, 222 (1985)
9. Marc Galanter,
Competing Equalities: Law and the Backward Classes in India, 1984,p.500
10. See Lord Donaldson
of Lymington, Reform of the Legal Profession, 1990 Current Legal problems 1, 6:
"All citizens want justice to be readily available. All citizens want it
to be cheap and the cheaper the better. All citizens are also agreed on what
constitutes the proper and efficient administration of justice. But here is the
rub. The proper and efficient administration of justice means, to the vast
majority of citizens, a system under which he will not be found guilty of any
criminal charge brought against him and will be completely successful in
prosecuting any civil claim which he may advance and equally successful in
defending any civil claim that may be brought against him."
11. David Pannick,
Judges, 1987, p. 146.
12. For a list of some
of the causes of the delays see Makhdoom Ali Khan, Tahir Ahmad and Uzma Burki,
Study on the Land Tenure in Punjab, A Shelter project Sub-study, Islamabad,
1991, Chapter 11.
13. Sixty-one years ago the Indian Statutory
Commission [(1930) Cmnd 3568, Vol. I] stated:"... the readiness of many
Indian races to have recourse to courts of justice has always struck Western
observers and is deplored by many Indians today."
14. See Barton, Behind
the Legal Explosion, 27 Stan L. Rev. 567 (1975) and Rosenberg, Let's Everybody
Litigate? 50 Tex L. Rev. 1349 (1972).
15. There is, for
instance, considerable academic dispute on the very existence of a litigation
explosion. Some academics contend that the litigation explosion must not be
viewed in isolation and place it within the wider context of the landscape of
disputes. See Marc Galanter, Reading the Landscape of Disputes: What We Know
and Don't Know (and Think We Know) about our Allegedly Contentious and
Litigious Society, F8 (1983) 31 UCLA Law Review, 4.
16. Rajeev Dhavmn, Law
as Struggle, Paper in Asian Seminar on Law Schools and Legal Services to Rural
Poor, Bangalore, 8-13 April, 1990, p. 6.
17. Aitizaz Ahsan v.
Chief Election Commissioner PLD 1989 Lahore 1.
18. Aftab Ahmed Sherpao
v. Governor N.W.F.P., PLD 1990 Peshawar 192.
19. My
information is that the final hearing in the case was postponed to a date after
the elections were over with the consent of counsel of both parties. What was
more important to the lawyers was mutual accommodation rather than the
resolution of an issue of great national importance.
20. The Commission made a number of
recommendations for amending the procedural laws, their strict implementation
and improvement in the administration of and the facilities available to the
courts. See, The Report of the Law Commission of Pakistan, 1958-59,1959, pp.
59-66.
21For
proposals for administrative and procedural reforms see, ibid. pp. 43-48.
22Ibid.
p. 6.
23The
Report of the Law Reform Commission, 1967, 1970.
24Ibid.
313-317.
25Ibid.
pp. 192-197.
26ttrid.
317
27. The Report of the
High Powered Law Reform Committee, 1974, pp. 82-83, quoted injustice Dr. Nasim
Hasan Shah, Constitution, Law and Pakistan Affairs, 1986, p. 125.
28. Report of the Law
Committee for Recommending Measures of Speedy Disposal of Civil Litigation
(Oct, 1978), pp. 4-12, quoted in ibid. pp. 125-6.
29. The
causes of delay in civil cases were summarised as follows:
- Lack of elaborate
inspection of subordinate courts.
- Absence of whole-time
courts for Rent and Family cases.
- Shortage of judicial officers.
- Shortage of personnel,
particularly, process servers and stenographers.
- Unsatisfactory working
conditions.
- Lack of
court/residential accommodation.
- Lack of proper training
facilities for judicial officers.
- Unattractive service
conditions of subordinate judicial officers.
- Lack of libraries.
- Shortage of furniture,
stationery, and typewriters.
- Lack of transport
facilities for process servers to effect service on parties and witnesses.
30. For
reforms in the civil and criminal law through procedural and administrative
changes see M. Krishna Rao, Arrears in
Courts, (1985) 12 Indian Bar Review 492; Baddepudi Radhakrishnamurti, Law's Delays (1989) 16 Indian Bar Review 200 and M.M. Khapali, Some Suggestions for Reducing Delays in
Litigation (1987) 14 Indian Bar Review 271.
31. Civil
Justice Review, General Issues Consultation Paper, 1987
32. The Bar Council of India has proposed that
a judge should dispose at least 650 cases a year and has suggested the
following time table:
i. A
regular civil suit should be completed within one and a half year.
ii. Contested
first appeal, six months.
iii. Second
appeal in the High Court, one year.
iv. Civil
first appeal in the High Court, one year.
v. All
writ petitions, revisions and criminal appeals within a period of two to six
months.
See Rajeev Dhavan, The Supreme Court under Strain: The
Challenge of Arrears.
33. Muller & Phipps (Pakistan) Limited v.
District Magistrate, Karachi and others PLD 1974 Karachi 261; Kazi & Kazi
Ltd. v. Fifth Sind Labour Court 1975 PLC 822 and Hafiz Amanat Ali v. Director
Administration LDA 1989 PLC 690.
34. The obvious beneficiary of such an
interpretation is the employer. The power elite, the judges, the lawyers and
the employers have placed on the law the meaning which is conducive to their
interests. A worker, therefore, now has a choice. He must either wait
indefinitely for his reinstatement or go with bended knee to the employer and
accept the settlement offered.
35. Bell v Director of Public Prosecutions
and Another [1986] LRC (Const) 392, 402.
36. Articles 184 to 188 of the Constitution.
37. Under Article 185 an appeal lies to the
Supreme Court:
- where the High Court has reversed an acquittal and
sentenced the accused to death, transportation for life or life imprisonment or
on revision has enhanced the sentence to this extent or after trial has passed
such a sentence on an accused,
- where the High Court has punished
a person for contempt,
- where the subject matter is of the value of more than
Rs. 50,000.00 and the judgment, decree or final order of the court immediately
below has been varied or set aside by the court appealed from,
- where the High Court certifies
that the case involves a substantial question of law.
38. Samuel Estreicher and John Sexton,
Redefining the Supreme Court's Role, 1986, p.l.
39. Humayun Saifullah Khan v. Federation of
Pakistan PLD 1990 Sc 599, Ajmal Mian J dissenting at 611.
40. Article 188.
41. Erwin Griswold, The Supreme Court's Case
Load. Civil Rights and Other Problems, U. III. L. F. 615
42. Stevens, Some Thoughts on Judicial
Restraint, 66 Judicature 177, 182 (1982)
43. Ginsburg & Huber, The Intercircuit
Committee, 100 Harv: L. Rev. 1417,1434-1435
44. Hellman, Caseload, Conflicts and Decisional
Capacity: Does the Supreme Court Need Help?, 67 Judicature 28, 30-31 (1933).
45. Peter L. Strauss, One Hundred Fifty Cases
Per Year. Some Implications of the Supreme Court's Limited Resources For
Judicial Review of Agency Action. 87 Columbia Law Review 1093, 1096 (1987).
46. P. Bhujanga Rao, The Mounting Arrears in
the Supreme Court - The Imminent Need to Restructure Us Functioning, (1989) 16
Indian Bar Review 40, 44
47. See Note, The Right to a Speedy Criminal
Trial, 57 Col L Rev 846, 863 (1957): and Note, The Lagging Right to a Speedy
Trial 51 Va L Rev 1587,1619 (1965). 48.
Dickey v. Florida 398 US 30, 26 L Ed 2d 26, 38. In his concurring opinion
Mr. Justice Brennan identified three factors for consideration: the source of
the delay the reasons for it, and whether the delay prejudiced the interests
protected by the right. '
49. In United States v. Butler, 426 F 2d 1275,
1277 (1970), the First Circuit Court thought that a delay of nine months,
without a good reason, in a case that depended on eyewitnesses was too long.
50. In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial.
51. Barker v.Wingo 407 US 514, 33LEd2d 101
(1972). The Court pointed out at page 112 that "the right to a speedy
trial is a more vague concept than other procedural rights. It is, for example,
impossible to determine with precision when the right has been denied. We cannot
say how long is too long in a system where justice is supposed to be swift but
deliberate. As a consequence, there is no fixed point in the criminal process
when the State can put the defendant to the choice of either expressing or
waiving the right to speedy trial."
52. Ibid. p. 115.
53. Ibid. p. 121.
54. Ibid. p. 117.
55. Ibid.
56. Ibid. 117-118
57. Ibid. p. 118
58. United States
v. Ewell 383 US at 120,15 L Ed 2d, at 630
59. R. v. Cameron
[1982] 6 WWR 270.
60. Rahey v. The
Queen [1987] 1 SCR 588. See also Peter H. Russell, Canada's Charter of Rights
and Freedoms: A Political Report 1988 Public Law
385, 393-
61. Section 20 of
the Jamaica (Constitution) Order in Council, 1962, provides, inter alia:
"Whenever any person is
charged with a criminal offence he shall, unless the charge is withdrawn, be
afforded a fair hearing within a
reasonable time by an independent and impartial court established by
law".
62. Bell v.
Director of Public Prosecutions and another [1986] LRC (Const) 392, 401.
63. Article 5(4)
provides:
"Everyone who is deprived
of his liberty by arrest or detention shall be entitled to take proceedings by
which the lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful." Article 6(1)
provides, inter alia:
"In the determination of
his civil rights and obligations or of any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time by
an independent and impartial tribunal established bylaw."
64. Konig v.
Federal Republic of Germany (1978) 2 EHRR 170, 197.
65. Ibid. 196-7.
66. Also see Bucholz V. Germany (1981) 3 EHRR 597
and Obermeier v. Austria (1989) 11 EHRR 57.
67. Zimmermann and Steiner v. Switzerland (1983)
6 EHRR 17.
68. Ibid. pp. 24-25. The Court further observed,
page 25:
“Methods which may fall to be considered, as a provisional
expedient, admittedly include choosing to deal with cases in a particular
order, based not just on-the date when they were brought but on their degree of
urgency and importance and, "LP™1*?^ 9" **V" to at 8takc for the
persons concerned. However, if a state of aBairs of this kind is prolonged and
becomes a matter of structural organisation, such methods are no longer
sufficient and the State will not be able topostbone further the adoption of
effective measures."
69. Sanchez-Reisse v. Switzerland (1986) 9 EHRR
71,87.
70. Sec Article 30.
71. “No person shall be deprived of life or
liberty save in accordance with law"
72. “The dignity of man ...shall be
inviolable."
73. It reads:
"No person shall be deprived of his life or personal
liberty except according to procedure established by law." This provision is narrower than Article 14 of
our Constitution which does not restrict the right to matters of procedure
alone and extends it to substantive law as well.
74. Maneka Gandhi v. Union of India AIR 1978 SC
597,624.
75. Hussainara Khatoon v. State of Bihar AIR
1979 SC 1360,1365.
76. Ibid. The decision was followed in State of
Maharashtra v. Champalal Punjajj Shah AIR 1981 SC 1675; T. V. Vatheeswaran v.
Tamil Naidu AIR 1983 SC 473.
77. State of Bihar v. Ramdas Ahir (1985) Cr. L.
J 584 (Pat).
78. State of Bihar v. Maksudan Singh (1985) Cr.
IJ 1782(Pat).
79. Sheela Barse v. Union of India AIR 1986 SC
1773.
80. R. S. Grewal, Speedy Trial: A Fundamental
Right, (1987) 14 Indian Bar Review 121.
81. Louis L. Jaffe, English and American Judges
as Lawmakers, 1969, p. 1.
82. K. S. Chhabra, Arbitration: Answer to
Delayed Justice, (1983) 10 Indian Bar Review 151. For problems with
arbitration
see Michael Zander, op. cit, p. 171.
83. Alternative Dispute Resolution.
84. Wolf, Of Devils and Angels, Lawyers and
Communities, 97 Harv L. Rev. 607.
85. These are established tor an area of 7 to 10
villages and a population of 14,000 to 15,000. A member of this body must be
able to read and write and should not be an elected member of the local body,
or the provincial or national legislature.
86. See Marc Gallanter and Upendra Baxi,
Pancbayat Justice: An Indian Experiment in Legal Access, in Mauro Cappelletti
and Bryant Garth, eds., Access to Justice, Vol. Ill, Emerging Issues and
Perspectives, 1978.
87. Mohammad Ghouse, Lok Adalat: A New Hope, 1,
8-9, Seminar on Lok Adalat, S.K. University, Anantpur, 1987.
88. N. R. Madhava Menon, Lok Adaiat; What? Why?
and How? 13, ibid. On Lok Adalats generally, also see, N. R. Madhava Menon, Lok
Adalat: People's Programme For Speedy Justice, (1986) 13 Indian Bar Review 129
and K. M. H. Rayappa, Lok-Adalat. Objectives, Pre-Requisites, Strategies and Organisation, (1987) 14 Indian
Bar Review 711.
89. Jeroid S. Auerbach./Justice Without Law?,
1983, p. 144.
90. "In our view, a new ground or a new
avenue can be explored on the basis of some legal principle and not merely on
the ground what appears to be just and
equitable": LA. Sherwani v. Government 1991 SCMR 1041 at 1080.
91. Sasheej Hegde, Lawyers and the Legal System
in India - A Critique, (1985) 12 Indian Bar Review 465. Also see V. N. Apte, Reforming the Profession For Speedy Justice (1986) 13
Indian Bar Review 113 and N.R. Madhava Menon, Restructuring the Legal Profession
for Strengthening the Administration of Justice (1988) 15 Indian Bar Review 82.
92. R.S. Khare, Indigenous Culture and
Lawyer's Law in India (1972) 14 Comparative Studies in Society and History 71.
93. Rajeev Dhavan, Litigation Explosion in India,
1986, p. 43- For an expose of the political economy of the law from which I
have drawn heavily see pp. 3-46.
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