COURT DELAYS TO ENABLE EFFECTIVE PREVENTION OF PROGRESS HUMAN RIGHTS ABUSES

COURT DELAYS TO ENABLE EFFECTIVE PREVENTION OF PROGRESS HUMAN RIGHTS ABUSES <!--[if gte mso 10]> COURT DELAYS TO ENABLE EFFECTIVE PREVENTION OF PROGRESS HUMAN RIGHTS ABUSES By Justice Khilji Arif Hussain, Judge High Court of Sindh The Civil Procedure Code and Criminal Procedure Code provide procedural code, with an overriding objective, of enabling the Court to deal with cases justly. The overriding objective, imposes, an obligation upon the Court to provide justice to parties, according to law, within a reasonable timeframe to meet the requirement of Article 37(d) of the Constitution of Islamic Republic of Pakistan. There are various reasons for the delay, but the most important of them, is that, our Courts have "no case management system". The obligation to do justice cannot be discharged without `active' case flow management. Each Court has to make a check list, to be applied to each case, such as in identifying issues at any given early stage, deciding promptly, as to which issues require full investigation and trial, and accordingly disposing summarily of the other, deciding the order in which issues are to be resolved, within a fixed timeframe or otherwise, controlling the progress of the case, giving direction to ensure that the trial of a case proceedings are flawless and efficient. The main crux of courts is to provide justice to litigants. In this regard, the management of complete lifecycle of Court case is very critical for efficient and effective service delivery to all stakeholders. These stakeholders may include litigants, Advocates, Judge and other court staff. The lifecycle of court case starts with the case Institution. Case Filing, Once properly scrutinized, the Court proceedings starts and finally ends with the passing of judgments. Unreasonable and undue delays become a structural and systemic reality. It affects the independence of the Judiciary and lawyers in a substantial manner. The delays in the administration of justice have the effect of subverting the entire process of justice and undermining or displacing the independence of Judiciary itself. Dispensation of justice plays a crucial role in a welfare State the system in establishing the rule of law. People who are victims of delayed justice still repose great confidence in courts. Let not this confidence erode further. Let us avoid any further damage to the society on this account. There can be no denial to the fact that it is the primary duty of the Courts to protect the rights of the people, security of their person, their dignity, freedom of speech, movement, trade, business, freedom to profess religion etc. Research in the U.S., Australia, the U.K. and Singapore has shown that courts must develop procedure that promotes their early control over the litigation process if the courts are to operate effectively. This concept implies that the judge is an active participant in the management of case flow. However, in many developing legal systems, especially those that are code-based, judges tend to let the lawyers set the pace of litigation events. Often, the delay benefits one party over the other, so acquiescing to delay constitutes de facto addication of judicial impartiality and responsibility. In practical terms, one of the most important ways for a judge to assert independence from the litigants is to take control of the court docket, namely by setting a schedule for the various filings, hearings and other necessary events, and authorizing delay only when good cause is shown. Case Management is primarily a supervision or management of the time and events involved in the life of a case. In this mechanism a court's role has the following dimensions:-- (1) Acting as a manager i.e. to supervise the case from filing till disposition and it has to monitor progress in each case. (2) Identifying issues over which the parties are in disagreement. (3) Exploring the possibility of resorting to ADR. (4) Fixing dates in a case in consultation with the main actors in case i.e. the lawyers and the parties. (5) Setting down a schedule for various procedural steps towards the final resolution of a case. (1) The target to provide justice within a reasonable period of time, cannot be achieved without a well-planned system and determination. The judges of lower courts were motivated to follow the case right from the date of filing till final decision by fixing timeframe to achieve the required progress in the matter. At Sindh High Court, practice of stick and carrot is being followed. A judge showing slackness in performance is checked and judge displaying performance is aptly rewarded. Every few hundred years there occurs a sharp transformation. We cross a `divide' within a few short decades, society re-arranges itself, its worldview, its basic values, its social and political structure, its arts, its key instructions. Fifty years later, a new word shall arise. One has to start out with, what is right rather than what is acceptable. It is a time of computer age and in imparting e-justice its use cannot be ignored. Due to active case flow management and use of computer the disposal-of cases in district Courts has increased from 287 per Judge in 2001 to 447 in 2004. (2) It has been noted that State is one of the largest litigant in Court pursuing matter up the level of apex Court instead of accepting the order of Appellate Court confirming the order of Trial Court or Tribunal. Appeal against an order and judgment were filed, as a matter of routine without first taking legal opinion whether order called in question suffer from legal lacuna or not. Party should be motivated to make an attempt for resolution of .their dispute by way of mediation with the assistance of trained mediators, before approaching the Court. The Constitution of Pakistan 1973 guarantees fundamental rights, including equality of status, or opportunity before the law, social, economic and political justice, and freedom of thought, expression and belief, for all; resolving, to create an `egalitarian society through a new order'. Articles 4 and 9 of the Constitution provide for the right to access to justice to all as an inalienable right of every citizen. In particular, Article 4 provides: `no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law (3). The courts of law have also laid down that every public functionary or person must show legal authority for interference with the rights of another (4). Article 9 also guarantees security of life and liberty; `no person shall be deprived of life and liberty, save in accordance with law'. The Supreme Court of Pakistan has held "life" as to mean, "all aspects of life". (5) Denial of access to justice has also been declared by the Supreme Court of Pakistan as a violation of Article (6). It is interesting to note that unlike the constitution of other countries in the Region, Article 37 of the Constitution of the Islamic Republic of Pakistan provides that the State shall ensure inexpensive and expeditious justice. In order to ensure inexpensive and expeditious justice, High Court can issue directive to regulate its working and procedures and similarity also of the Courts subordinate to it (7). Article 38 makes it imperative for the State to secure the well-being of the people and provide basic necessities of life. Moreover, Article 8 declares any law or custom or usage that has the `force of law' and it inconsistent with Fundamental Rights shall to that extent be void. Contrary, what provided by, access to justice is expensive, slow and unpredictable. With poverty on the rise, survival and security are daily struggles. While addressing the issue of delay, the court ought to have take care between speedy justice and justice in hurry, as speedy justice provided relief to affected parties within reasonable period of time, whereas decision in hurry deprive a party from his right, resulting not only in multiplicity of the proceedings, but also creating frustration in civil society. Criminal justice cannot be provided without fast,' fair, honest and expeditious investigation into every reasonable conspicuous against each and every person reasonable suspicious of involvement in the alleged offence has to be made strictly in accordance with law and if investigation agency has not acted fair impartially involving an innocent person malafidely with a charge of an offence depriving him from his fundamental right and for long time to undergo trial in Court, while acquitting such person in appropriate cases reasonable compensation can be granted instead of asking parties to file separate, legal proceedings. Article 9(5) of the International Covenant on Civil and Political Rights 1966 states "any one who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation". The content of this Article 9(5) is that the victim will have an enforceable right to compensation. Now a days it has become a regular phenomenon on the part of the government to invade the fundamental and human rights of citizen in the guise of maintaining law and order, prevention of crime etc. The problem will arise only when the administrative power is being used indiscriminately and arbitrarily to affect the fundamental and human rights of citizens. In some cases the fundamental rights which are infringed may be resorted but it is not possible in all cases and in such circumstances, the infringement may be suitably compensated by awarding monetary compensation by the Court. In number of cases, it has been held that defence of sovereign unanimity is not applicable and it is alien to the concept of guarantee of fundamental rights and such defence is not available in the constitutional remedy. Time has come when a person who deprived from his right of free movement on account of criminal case, which ultimately fails, should also be compensated. The judicial delivery system which include Judges, Court, Staff, Advocates, Prosecution Agencies, Police, Parties to proceedings and civil society unless work as a whole like machine, desire result to deliver justice to parties within reasonable time cannot be achieved. In criminal justice system police/investigating agencies, prosecution and complainant party are main stakeholders. It has been noted that delay in dispensation of criminal justice mainly caused due to inefficient and non-serious investigation by the police/investigation authorities and further aggravated by lethargic attitude of the prosecution in discharging their duty. In most of the cases police for many reasons including lack of sources, proper training, behaviour problem could not investigate the matter brought before them properly, impartially and efficiently and acted in a mechanical manner or protecting interest of one of the parties either complainant or nominated accused persons, which resulted that it becomes very difficult for the Court to deliver criminal justice as required. In Sri Lanka conviction ratio is 4%, in India it is 5% whereas in Pakistan it is 7 to 10%. Unless and until police department/investigation agencies are not fully trained and necessary facilities are not provided to them like forensic laboratories, conveyance, modern technique of investigation etc., justice in criminal proceedings will be very difficult to deliver. It has been noted that the concerned Investigating Officer did not mention detail address of the witnesses, so that summons can be served upon them as and when their presence are required in Court to give evidence and further kept themselves informed about the whereabouts of the witnesses. The prosecution agency totally failed to discharge its responsibility in this regard. It has been noted that in good number of matters summons/notices issued to the witnesses returned by the prosecution agencies in stereo type report that "witnesses are not available on the giving address or they have been shifted from the place where they were residing" which is another cause of delay in criminal justice system. The learned Judges of the Trial Courts also, may be on account of pressure of work, avoided to record the evidence in the matter, in which witnesses were present in Court, which resulted that witness who came to Court for giving the evidence after one or two occasions loose their interest in the matter and avoided to attend the Court on next date of hearing. It is desirable that in the matter listed for evidence the Court ought to have recorded the evidence instead of adjourning matter, in which witnesses are present. Right to get dispute decided within reasonable time is un-denied fundamental right of the parties. In Hong Kong all government contracts contained a clause that before approaching to the Court by either of the parties to the contract they have to make an attempt for settlement through mediation. It is desirable that such clause should also be incorporated in all commercial contracts, so that before approaching the Court an attempt of settlement can be made and possibly a good number, out of it, may be resolved outside Court, which in turn reduce the burden of the Court. Number of Under Trial Prisoners are much more than convicted in Jail. As per statistic in India, five percent is the conviction rates and in Pakistan it is between 7 to 10 percent. In other words, about 92 to 93 percent of Under Trial Prisoners have been deprived of from their company due to delay in deciding their matters in court. This abuse of Human Rights at the hand of authority needs to be looked into. Necessary amendment is to be made in statute that if a matter cannot be decided within specified period for time then Under Trial Prisoners should be released on bail/bond. The person, to whom Court after three to five years acquitted, as charge against him is not proved, needs to be compensated for the period during which he remained confined without any fault on his part. Due to delay in the Court proceedings resulting abuse of the human rights and denial of justice to vulnerable section of the society, in exercise of powers under Local Government Ordinance, committees of respectable persons have been constituted at grass root level where any party can approach for redress of his/her grievance and the said committee make an attempt for resolving the disputes by amicable settlement. Required resources to police prosecutor and Court with manpower need to be provided to address issue of delay. Number of Judges at all level from subordinate Courts up to apex Courts are required to be increased, looking into the pendency and filing of the cases in Court. Within five years of time, filing of the cases has almost increased 100 percent in High Court of Sindh. The ramparts of defence against tyranny are ultimately in the hearts of the people. The Constitution, the Courts and the laws can act only as aids to strengthen those ramparts; they do not and cannot furnish substitutes for those ramparts. If the ramparts are secure, anyone who dares to tamper with the liberties of the citizens would do so at his own peril. If, however, the ramparts crack down, no Constitution, no Court, no law would be able to do much in the matter.