HARDSHIPS TO LITIGANTS AND MISCARRIAGE OF JUSTICE CAUSED BY DELAYS IN COURTS*

HARDSHIPS TO LITIGANTS AND MISCARRIAGE OF JUSTICE CAUSED BY DELAYS IN COURTS* <!--[if gte mso 10]> HARDSHIPS TO LITIGANTS AND MISCARRIAGE OF JUSTICE CAUSED BY DELAYS IN COURTS* By Mr. Justice Ajmal Mian, Judge, Supreme Court of Pakistan [11th July, 1991] Mr. Chairman, Members of the Human Rights Commission of Pakistan, distinguished delegates, honoured guests, ladies and gentlemen, Asalamo Alaikam! * Speech delivered at a Seminar on 11th July. 1991. I consider to be a proud privilege to have been invited as the Chief Guest in the plenary session of this Seminar. I am really grateful to you all for conferring this unique honour on me. I must congratulate the sponsors/organisers of this Seminar for selecting the topic, namely, "Hardships to Litigants and Miscarriage of Justice caused by Delays in Courts", which is a burning issue now-a-days all over the world where judicial systems are founded on adversary system. I am sure that the deliberations during this Seminar will result in formulation of some constructive and concrete proposals, which may be helpful in eliminating/reducing delays in Courts. 2. I may observe that the delay in Courts is not a new phenomena but it is an inherited evil that must be viewed against a history reaching back into the last century and even before. This chronic disease is not confined to the under-developed countries like Pakistan but has been encountered by the most advanced developed countries. Lord Denning in his book "The Due Process of Law" has pointed out that Shakespeare in his monumental work "Hamlet" (Act III SC 1) ranks delays in Courts among the whips and scorns of time and Dickens in Chapter I of his book "Bleak House" tells how delay exhausts, finances, patience, courage and hope. There cannot be two opinions that delays in Courts cause hardship to the litigant public and result in miscarriage of justice. It brings our judicial system and Courts into disrepute and generates feeling that justice may in the final analysis, be denied, because by lapse of time evidence may deteriorate, memories may fail, witnesses may vanish or die, thus resulting the case into dismissal or forcing the parties to enter into unfair settlements. Delays in disposal of guardianship and matrimonial cases cause irretrieveable hardship and miseries. Small children are shuttled from one Court to another Court and their custody is handed from the one parent to the other in the long drawn litigation and in that process they do not fully develop and acquire confidence. In a case for dissolution of marriage, unfortunate young woman has to wait for relief for such a long period that her hair turn grey and by the time the litigation is finally terminated, she passes marriageable age. Delays in disposal of criminal cases no doubt seriously prejudice the accused persons who are to be eventually acquitted upon culmination of the legal proceedings finally. I may point out there was a news item in the English daily newspaper "DAWN" of Karachi dated 29-6-1991 under the caption "Family Gets Delayed Justice in I.R.A. Case". The Reporter, while narrating the facts, remarked that "The British legal system received another jolt on Wednesday when the Court of Appeal in London quashed the sentences passed 16 years ago against members of the McGuire family who were charged with running a bomb factory on behalf of the Irish Republican Army (I.R.A.)". It cannot be denied that the accused in the above case, if they were factually innocent, had suffered for a long period of 16 years in prison. The above suffering cannot be retrieved either by monetary compensation or by any other process. However, I may point out that, particularly, in the under-developed countries like Pakistan, the delays in Courts in criminal cases at the trial stage are in fact more beneficial to the accused persons as a class and detrimental to the public-at-large. With the passage of time, the witnesses either die or disappear or lose interest or are won over and, therefore, it becomes impossible even for an honest and efficient prosecution to secure conviction even in broad daylight murder cases. As a consequence thereof, the percentage of conviction in criminal cases throughout Pakistan has come down to the extent of negligible percentage. I may point out that the addition of the third proviso to subsection (1) of section 497, Cr.P.C. providing bail upon the expiry of statutory period of one year in case of an offence not punishable with death and two years in case of offence punishable with death, has generated the tendency on the part of the defence to cause delay in disposal of dark cases by menoeuvring in order to press into service the above proviso for claiming bail upon the expiry of above statutory period. Though by adding proviso 4 to above subsection (1) of section 497, Cr.P.C. by the Code of Criminal Procedure (Second Amendment) Ordinance XXXII of 1983 providing that the third proviso to the above subsection shall not apply to a previously convicted offender or to a person who in the opinion of the Court is a hardened, desperate or dangerous criminal, the adverse effect of the above third proviso to above subsection (1) of section 497, Cr.P.C. has been reduced to some extent but still it is operating to the detriment of the society. The accused persons charged with serious offences, which carry death sentence come out from the prison upon the expiry of the above period of two years. They commit more offences without any hesitation. The life of a common man for want of proper law and order has become miserable. The failure of the normal Courts to deal with the cases involving serious criminal offences effectively and expeditiously resulted in establishment of Special Courts to deal with the cases involving serious offences which is an adverse reflection on the judicial system of the country. 3. In Pakistan the question of delays in Courts was seriously addressed to by the then Government in power, first in 1958 and then in 1967 in the form of constituting of Justice S.A. Rahman and Justice Hamoodur Rahman Law Commissions, respectively. It may be pertinent to observe that Hamoodur Rahman Commission in its report has pointed out that the Laws' delays have been and continue to be a matter of deep concern even in highly developed countries like Scandanavian countries, the United Kingdom, the United States, Japan and other Common-wealth countries and have been receiving constant attention of the authorities in those countries. It was highlighted that in the year 1964 there were as many as 3,39,050 civil cases awaiting disposal by the Courts in Japan as compared to number of cases then pending in the High Courts and the Supreme Court of Pakistan, namely, 22,258 and 3,878 respectively. It has also been pointed out that in India in 1923 a Civil Justice Committee headed by Sir George Clus Rankin, one of the most eminent Judges, was set up, which listed the reasons of the delays in disposal of the civil cases. Hamoodur Rahman Commission, while reiterating the recommendations of the aforesaid Civil Justice Committee of 1923, came to the conclusion that unnecessary delays take place at every stage of litigation due to causes which may be classified in two broad categories, namely, delays inherent in the Courts system itself, and delays which may be described as Lawyers' caused delays. The Commission was of the view that the former delays were attributable to the dilatoriness of the procedure itself, the shortage of judges and Courts to deal with the growing volume of litigation and the lack of attention given by the Presiding Officers of the Courts to the relevant provisions of the procedure like Orders XI, XII and XIII, C.P.C. designed and intended for completing the preliminary stages necessary for making a case ready for hearing, whereas the latter delays were attributable to the unreadiness of lawyers to proceed with the case largely because too few lawyers had too many briefs to deal with. I may observe that some of the recommendations of Hamoodur Rahman Commission were implemented by promulgating the Law Reform Ordinance, 1972, which made inter alia a number of amendments in the Codes of Civil Procedure and Criminal Procedure. However, in spite of the above implementation, the desired result of eliminating/reducing the delays in Courts has not been achieved, on the contrary since then the situation has worsened. It will be a very constructive study if this Seminar examines the reasons of the above failure and also the question as to how the backlog of the aforesaid 3,39,050 Civil Cases in Japan pending in the year 1964 was cleared. 4. In my humble view, the causes of delays in Courts are not only relatable to judiciary and lawyers as is generally believed by the public-at-large but the Legislature, the Executive and the litigant public also contribute substantially towards it. (a) In the late nineteenth and early twentieth Centuries, the enactments used to be drafted by eminent draftsmen after full deliberations on each and every word. In this regard, reference may be made to Pakistan Penal Code, 1860, The Evidence Act, 1872, Bill of Exchange Act, 1882, Code of Criminal Procedure, 1898 and the Code of Civil Procedure, 1908 etc. A very few amendments were made in the above enactments during more than half a century. However, after partition of India, a new tendency has developed of making frequent amendments in the existing laws and enacting new laws hastily, with the result that the drafting is bad and defective, which breeds litigation. (b) The Executive is also responsible for creating litigation by taking hasty and unjudicious action or by acting arbitrarily or capriciously. The object of the incorporation of section 80 of the Code of Civil Procedure was to provide two months period to the Government to consider the claim of a citizen and to redress his grievance before he approaches a Court. The benefit of the above section is not availed of by the Executive. Now-a -days a tendency has developed on the part of the Government officials not to take a bold and quick decision in respect of any claim but to leave the matter for the Court to decide, with the result that one of the main litigants in the country is the Government or its functionaries, corporate bodies etc. (c) The delays on account of judiciary have been highlighted in Hamoodur Rahman Commission's Report because of inter alia procedure and non-observance by the Presiding Officers the provisions of the procedure which are intended to eliminate delay. Beside the above reasons, the weakness, incompetency and lack of desire to work to their full capacity on the part of some Judges have also contributed towards delays in Courts. For that, some of the lawyers are equally responsible as the Judges, who do not work and grant adjournments of cases readily are considered as accommodating Judges, whereas the Judges who wish to work to their full capacity and who decline to grant unnecessary adjournments are termed as unaccommodating Judges. (d) The legal profession is considered to be a noble profession as it provides a social service to the needy and suppressed people. However, unfortunately now-a-days some of the people in the Indo-Pak sub-continent, join the legal profession not with the desire to serve the people but for the reason that they do not have any other option. Therefore, to them earning of the money is the only aim, with the result that they conduct proceedings without any scruple. They do not tender correct advice to the litigant public in order to avert frivolous litigation. They do not prevent their clients from taking false stand or making false statements. (e) The litigant public itself is also contributing a lot towards delays in disposal of cases. The greed and desire to have easy money and to become rich overnight, has generated frivolous litigation. I may point out that in the Province of Sindh a new practice has developed which is alarming and is required to be dealt with, with heavy hands, namely, that after a landlord succeeds in obtaining an ejectment order upto the level of the Supreme Court after long litigation of 10 to 15 years, a tenant generally on the basis of forged documents either files a suit for specific performance of an alleged sale agreement of the tenement of which ejectment order has been passed, or a suit for declaration that the landlord has granted new tenancy after the decision of the Supreme Court. I may observe that so long as the above contributories to delays in Courts do not change their above working style, delays in Courts are inevitable and no amount of procedural changes, the Law Commissions and Seminars are going to eliminate the same. We should also create awareness among all the quarters concerned that delays in Courts be treated as a national problem and be dealt with on high priority basis. 5. Before concluding my address, I may make following a few suggestions: The Court's current difficulties stem from an inherited backlog. Delays in Courts cannot be eliminated/reduced unless and until the backlog is first cleared and, therefore, the Courts should control and monitor the litigation process from the time of filing till the conclusion in order to ensure expeditious disposal. For clearing backlog of criminal cases, inter alia the number of Judges may be increased but for civil cases instead of increasing number of Judges, we may involve alternate supplementary effective forums for adjudication of the same. (a) In United States, in order to reduce the workload of the normal Courts, quite substantial number of disputes are being referred to arbitration. The arbitration has become so popular in America that some of the sitting Judges after resigning have established their judicial arbitration service. However, in our country, arbitration has proved a failure because after arbitration ends, litigation begins. A proceeding for making an award a rule of the Court is registered as a suit and goes through the entire procedure of suit with all its consequential appeals upto the highest Court. Some times the question, whether the dispute is to be referred to arbitration or not, remains the subject-matter of litigation for more than a decade either in the form of proceedings arising from an application under section 20 of the Arbitration Act for filing of arbitration agreement in the Court or in the form of proceedings arising from an application under section 34 of the Arbitration Act filed in a suit. The proceedings upon the merits of the claim begin after the final adjudication upon the above question, and if the dispute is to proceed before an arbitrator, it takes another 10-15 years till an award acquires finality and becomes executable. In my view, the Arbitration Act be suitably amended for providing inter alia as follows: (i) Money claims in respect of specified matters and amounts may be made compulsorily referable to arbitration in pending cases as well as for future claims. Three months period for giving an award may be specified and in no case, the time be extended beyond six months; (ii) Instead of providing for registration of an award as a suit, a direct appeal against it be provided which may be filed within 30 days of the giving of an award before a tribunal, which should dispose of the same within three months from the date of filing it. Permanent tribunals comprising retired Judges of the Supreme Court, High Courts and District Courts be constituted. A permanent machinery for constituting and operating such tribunals be provided. I may suggest that instead of paying pension to the retired Judges, they may be paid their salaries and be entrusted with the above work and other judicial work. An appeal be marked to an appropriate tribunal according to the nature of dispute. (b) That the system of having a pre-trial conference between the parties and their Advocates in presence of the Presiding Judges, be introduced with the object to settle the matter amicably. This system has proved very successful in the United States. During the year 1979-80 in the State of California alone, out of 26,000 matters, 15,000 matters were disposed of at the preliminary stage of hearing popularly known as a pre-trial stage. (c) That the Judges be made conversant with the technique of Court management. Delay in Courts is primarily management problem. The basic structure of the Courts operation should be known. A lot of research work in this regard has been conducted in various countries of the world and this has also been subject-matter of numerous International Seminars. The consensus seems to be that proper Court management reduces delays in disposal of cases. It helps Courts to control and monitor the litigation process from filing onwards till the conclusion of the same. This is also called the case flow management policy. The above technique has been recently employed by the present Chief Justice of Pakistan, with the result that the entire backlog of petitions for leave to appeal and substantial number of appeals have been cleared. In this regard, it may be pertinent to mention that on 6-1-1990, 5,821 petitions for leave were pending as balance. During the period from 6-1-1990 to 30-6-1991, 6,843 new petitions for leave to appeal were registered; thus making a total of 12,664 out of the above total number, 11,391 petitions for leave to appeal have been disposed of, leaving a balance of 1,273. Whereas on above date, namely, on 6-1-1990, 5,235 appeals were pending. During the above period, 4,500 appeals were registered; thus making a total of 9,735 appeals. Out of the above total pendency, 6,086 appeals have been disposed of, leaving a balance of 3,649. The position obtaining on 4-7-1991 i.e. on the last working day of the Supreme Court before the commencement of its summer vacation was that the entire backlog of the petitions for leave to appeal and of the appeals upto and including of the year 1989 had been cleared except that there were 1,029 current petitions for leave to appeal and 932 appeals unit-wise, (but bunch-wise 867 current petitions for leave to appeal and 553 appeals) pending. It is hoped that before the end of his year petitions for leave to appeal and appeals will be disposed of within a week and within a year respectively from the dates of their institution. Even nowa days appeals of 1990 and 1991 are being heard and disposed of. (d) In order to eliminate delays on account of lawyers' absence or engagement in other cases, it may be appropriate that formation of lawyers' firms having a number of partners or associates be encouraged, so that daily workload may be equally divided among them. In Russia, all Advocates are allotted to Legal Aid Bureau set up by Collegium of the Bar in which they operate. Fees are made by a client to the Legal Aid Bureau on a piece work basis and not to Advocate, though a client has the option to specify a particular lawyer from the panel. The formation of such Legal Aid Bureau in Pakistan may not be feasible. However, the formation of the firms as suggested above will go a long way to eliminate delays on account of lawyers, and it will also provide openings for young lawyers who face lot of hardship during initial period of their career. (e) The people who file frivolous cases and make false statements on oath, generally get away without being penalised for their above acts. Compensatory costs be awarded in such cases to the winning parties and the persons guilty of perjury be punished severely. The Court before which offence of perjury is committed, be conferred with the power to punish the offender. 6. In the end I would like to thank once again to all of you and I wish all the success for this Seminar. ***