When Quality Of Justice Does Not Matter
No society can exist without justice. Justice is delivered by an independent judiciary and an efficient administration. Much has been written about the independence of the judiciary – the honesty, credibility, competence and impartiality of the holders of judicial offices are, by and large, the core requirements for ensuring a fair and just dispensation of justice.
However, they say that a ship is only as good as its captain. Over the past fifteen years, we have seen many judges of the Supreme Court of Pakistan take oath as the Chief Justice of Pakistan i.e. the head of the judicial organ of the state. Individual judges, including Chief Justices, have been criticized on various counts, whether on the basis of their professional conduct in court, the legality or otherwise of decisions rendered by them, or on the basis of their actions in their personal lives. During this period, we have also seen the induction of a number of fresh judges in the higher echelons of our judiciary, including some highly reputed, well-educated and proficient practising lawyers. Such lawyer-turned-judges, some of whom are foreign qualified and had thriving law practices, have by and large, as judges, been able to deliver well-reasoned, objective and well-articulated judgments, based on a proper appreciation of facts and law, rendered without fear or favour. They have also managed to keep themselves at a distance from any controversies or breaking-news and instead, opted to put their heads down to the tasks given to them, endeavoring to deliver quality justice. We are in the process of seeing these shining stars being elevated to higher ranks within the judiciary and burdened with greater responsibilities.
Unfortunately, these “supermans” of justice are few in number and serve as patchwork for our entire moth-eaten judicial fabric. Much needs to be done to ensure the timeliness of justice, which is as, if not more, important as the quality of justice. Efforts to ensure quality justice go in vain when justice comes too little too late.
Delays in dispensation of justice are common and accepted facts of life in our country. Benjamin Franklin may have had to alter his famously uttered words to incorporate another element of certainty, to the effect that: “in the world, nothing is certain, except death, taxes and prolonged litigation in Pakistan”. Such ubiquitous delays are direct results of the antiquated, inefficient and poor administration of justice in our country.
There have been numerous writings, research papers, reports, recommendations and what not, addressing the myriad problems of our administration of justice. A common thread running through all these works is the notion that justice delayed is justice denied. However, has anything been done to adequately and effectively address this problem plaguing our judicial system? The chronic delays in our system of justice are caused partly by a lack of resources and also by archaic and inefficient work practices. It would not require foreign aid or elaborate budget expenditure to tweak the system and make it more efficient and streamlined. Much could be done internally to introduce and put in place procedures that are more efficacious and result in lesser delays.
One of the main reasons for such delays is the fact that judges are required to hear more cases each day than is humanly possible for them to handle. Long cause lists at both the District and High Court level, inevitably lead to the scanty treatment of matters affecting the fundamental rights of individuals. Cases are adjourned on the flimsiest of excuses and the following ones called in a speedy manner, just to ensure that the cause list is exhausted and the day’s job is done. Those cases which are fortunate enough to be argued at length, end up taking the majority of the court’s time. This leaves behind many cases that are termed as ‘left-over’ i.e. to be heard on another day. At the district court level, these matters are adjourned to another date, perhaps facing the same fate on the next date of hearing as well. At the high court level, such left-over cases are adjourned indefinitely and there is no automatic re-fixation of these matters. A litigant would have to request his or her counsel to prepare and file a miscellaneous application for early hearing and have the same heard by a bench of the said court, in order to request a new date, which may or may not be allowed, depending on the judge’s inclination. Quite frequently, due to excessive workload, cases which are re-fixed by the court after allowing such an application, are left-over numerous times, further delaying the final adjudication of the matter and, at times, even making the disputed matter infructuous.
Delays are also caused by judges going on unannounced long or short leaves (short leave is a term coined for an occasion when the judge is absent from the court for a few hours). No prior intimation of a judge’s leave is communicated in advance, to either the concerned bar association, litigants or to the general public. Litigants and counsel alike only come to know of a judge’s absence once they arrive at the court premises, thereby, causing inconvenience and disappointment. Likewise, the lawyer community also has a habit of announcing a strike on almost any issue, however trivial, thereby, abstaining from representing clients in court and allowing hundreds of cases to be adjourned to another date.
Adjournment requests from counsels are also a frequent occurrence and, whilst there may be genuine reasons for a counsel’s inability to appear in court on a particular day, this provision in the law is often abused by lawyers where it suits their or their client’s interests (e.g. where they are benefiting from a stay order or, as a defendant, wish to prolong the litigation as the status quo lies in their favour). Judges are only too keen to grant such adjournment requests, enabling them to exhaust their cause list for the day as quickly as possible, or simply avoid having to hear arguments in a lengthy matter.
Where there are several parties in a litigation, represented by several lawyers, or where numerous similar or identical cases are clubbed together before the same judge, having such matters decided is an arduous and time consuming task as, more often than not, one or the other counsel(s) may be unavailable on the date fixed for hearing. This enables the judge to adjourn the matter to another date on the pretext that he or she cannot hear arguments until all the counsels are present before him or her.
Unnecessary delays are also caused by the failure of parties (sometimes deliberate) to receive notices issued by the court and, therefore, repeat notices have to be issued. This is followed by substituted service by means of a newspaper advertisement or other means. This process may take several months, until the time when the party being served finally appears in court and seeks time to engage counsel and/or to file its reply. A few further adjournments are granted for this task and a simple matter ends up taking an astonishingly long time to even reach the stage of recording of evidence.
The passing of a judgment in any matter is also not a straightforward matter, as it may take the judge a substantial period of time to write his or her judgment. This problem was acknowledged by the Supreme Court of Pakistan in one of its recent judgments wherein specific timelines were laid down for judges within which they were required to pronounce judgments. Whether or not this is actually being done across the country is another matter.
The process of justice comes to a standstill during the summer, when all the high courts of the country (including the Supreme Court of Pakistan) go on a two-month long vacation, whilst the district courts take a one-month break. Only very urgent matters are permitted to be fixed and heard during this period and that too by a select number of duty judges who are required to work during the vacation period. While judges and lawyers enjoy their vacation, justice is on hold for a couple of months each year. Prisoners under trial are made to wait a few months till the rickety wheels of justice start moving again – that too at a snail’s pace. Hundreds and thousands of pending cases are kept pending, whilst new ones are added each day to the pile, leaving it to the litigant’s imagination as to when he or she may expect a redressal of his or her grievances – if at all.
Many cases are rendered infructuous due to the lapse of time and a decision thereon, at a belated stage, would give little or no benefit to the litigant. Who should bear the costs, not to mention the other losses, that a litigant suffers due to the delays in having a matter decided by the court? There is a well-known maxim that an act of court shall prejudice no one. Whilst delays by one party could be compensated for by awarding costs to the other party, what about those delays that arise due to the inefficient administration of justice? Surely these need to be addressed and the suffering litigants compensated thereafter.
Not imposing costs at all (or imposing insufficient costs) based on the principle of ‘losing party pays’, adds to the woes of litigants. Similarly, where there is no award of compensation for the physical and mental torture that a litigant goes through whilst pursuing or defending his or her legal rights for years on end, even a final decision in favour of such a person does not fully do justice between the parties.
Let us not think of ways to reinvent the wheel. Streamlining the administration of justice is an evolving process, one which is shown to be, by and large, fair, quick and efficient in developed countries such as Britain or Canada. Being a polity based on Islamic principles of democracy, freedom, equality, tolerance and social justice, it is ironic, yet necessary, that we look towards developed nations of the West, which have their judicial systems based on Islamic principles of justice, yet do not profess to be governed by the injunctions of Islam.
In the words of Al-Sarakhsi, a noted classical Islamic jurist, to render justice “ranks as the most noble of acts of devotion next to belief in God. It is the greatest of all the duties entrusted to the Prophets…and it is the strongest justification for man’s stewardship or khilafah on earth.”
We have to seriously consider modifying or developing practices and procedures that have the effect of (a) minimizing or discouraging litigation; (b) reducing delays, and (c) ensuring an efficient, equitable and fair administration of justice. Only then would the quality of justice matter.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.