JUSTICE CAUSED BY DELAYS IN COURTS”- Makhdoom Ali Khan Bar-at-law

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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Meta Knowledge/ Knowledge Calculus - classification of Action Research

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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that litigation was basically a private matter between the parties which could be dealt with at their convenience is no longer valid.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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