Speedy Justice! How?
Besides safeguarding the state’s frontiers, the dispensation of justice is a government’s foremost obligation. Many state constitutions across the world reckon access to speedy justice as one of the citizen’s fundamental rights. Yet, commentators on public affairs everywhere complain of the lethargy with which their judicial process moves. In our own case, politicians as elsewhere make similar promises daily. Courts in many countries have accumulated huge backlogs of pending cases. Litigation in civil courts is notorious for its slow movement but sometimes even criminal cases may take an incredibly long time to conclude. A recent example is that of Asif Zardari who remained in jail for eight years, and the charges against him are still pending in courts.
One reason why the wheels of justice move so slowly is that in many societies, the volume of litigation has increased enormously during the last 50 or so years. Minor disputes or brawls that were once settled by the friendly intervention of friends and neighbours, or through negotiation and compromise, or simply let go, are now taken to court. Consider also that governments sue, and are sued by, private parties much more often than before.This increase has occurred in civil much more than in criminal cases. In many societies, including Pakistan, a large percentage of the crimes does not even get reported, because of the hassle the victim has to go through in dealing with the police.
It is commonly said in both Pakistan and India that the number of courts and judges must be increased to deal with the increased volume of litigation. India has about 11 courts per one million of population. The situation may be roughly the same in Pakistan. Western democracies, by contrast, have close to 100 courts for the same number of people. A related problem may be mentioned. At any given time, a substantial proportion of the authorized posts in various courts are lying vacant especially in Pakistan. Many positions in the Pakistani courts remain unfilled. The appointing authorities are in a position to know many months ahead of time when a judge will retire. Failure to appoint his successor promptly is simply incompetence on the part of the people at the helm of affairs.It has been contended that intricate and cumbersome procedure, more than any shortage of courts and judges, is to be blamed for delay in the processing of court cases. That may be true, but those who would simplify the procedure must be cognizant of the fact that the procedure is what it is partly to protect the rights of the accused and respondents.
The “jirga” in the tribal regions of NWFP is well known for the promptness with which it settles disputes and punishes crimes. Unlike the jirga in Sindh and southern Punjab, which has become notorious for its inequity, the one among our Pukhtun tribes is reasonably well regarded. It includes some of the village elders and notables but it is open to all those who might wish to attend. In certain cases it admits an equal number of nominees from each side to the dispute. It settles issues according to the well-established tribal custom.
In the Anglo-Saxon tradition cases are heard and decided by judge and jury. It is the jury, consisting of the accused person’s “peers,” that determines his guilt or innocence. The judge conducts the trial and explains the relevant law to the jury. In case it finds the accused to be guilty, he explains to the jury the limits of the penalty it may impose in view of the mitigating circumstances, if any, that it may wish to consider.
The jirga among our Pukhtun tribes is not unlike the jury, except for the fact that it works without the direction of a judge and the intervention of lawyers. A great deal of criticism of the jirga in Sindh and southern Punjab has been voiced in recent years, and that for good reason. Critics maintain that it should be abolished. Considering that our judicial system is so slow-moving, it may not be a great idea to abolish the Pukhtun jirga which is not the object of condemnation as its Sindhi and Punjabi “counterparts” are.
In any case, if the jirga is allowed to remain in Sindh and Punjab, it should probably be reformed. Its membership and modus operandi may be regularized; its jurisdiction limited to certain specified categories of disputes and offences, and it may be required to implement the law of land and not its tribal custom. To the extent that the custom is benign, it may be made part of the law. It may be recalled that much of the English common law was, once upon a time, the ongoing custom of the land and its people.
Some of the frequently mentioned impediments to speedy justice may be noted. First, far too many writ petitions are filed in the higher courts, and many of them are said to be frivolous. They should be subjected to stricter scrutiny before they are admitted. Second, too many adjournments are allowed for reasons that are not good enough. The police should be forbidden to keep an accused in custody beyond a specified period of time before taking him to court, and if a viable case against him cannot be prepared by the appointed deadline, the charges against him should be dropped.
Lawyers, as a class, have little interest in speedy justice especially if they are paid by the hour or by the day. The longer it takes for a case to be settled, the larger the amount in fees and expenses that they can bill their client. A strict limit should be placed on the time a lawyer may take to present his oral arguments. At the present time, they can take days to argue a case. The United States Supreme Court allows an attorney no more than 30 minutes to argue his case. All else he may put in his written brief.
If justice is to be made prompt and affordable, supplements to the existing apparatus need to be considered. A movement called “Alternative Dispute Resolution Mechanisms” began in the United States in the 1970s. As a result, some of the states have set up small claims courts to deal with cases involving obligations of less than $5,000.A local “justice of the peace,” a non-salaried functionary (somewhat like the “honorary magistrate” in pre-independence India) hears and settles the cases. The parties may or may not be represented by counsel. The plaintiff states his claim under oath, and in writing, and presents supporting evidence. The respondent presents his case, if he has one. The matter is settled usually in one hearing.The attorney-general in Florida has instituted another system. Volunteers, trained in the arts of conciliation and mediation, act as hearing officers to bring about a settlement between the aggressor and the aggressed in minor criminal cases and between the plaintiff and the respondent in cases involving small claims. Apparently, the system is working well.In April 2001 the government of India offered the states five billion rupees to establish “fast track” courts in each district to handle criminal cases involving “under trial” prisoners. It should be interesting to find how well these courts are functioning.
The feasibility of these alternative mechanisms for delivering justice in Pakistan deserves to be considered seriously.Improved skills of the judiciary in case flow management would help to provide speedy justice to the poor, needy and vulnerable.The huge burden of pendency of cases continued\to add to the challenge that the courts are facing to discharge their duties in time and efficient manner.Some of the pending court cases are more than 10 to 15 years old and this situation obviously highlighted the importance of having better case flow management. Only in Punjab, in 2001, the number of indisposed cases was reported to be more than a million, and in the same year Sindh, NWFP and Balochistan had 119,969; 159,074 and 6,029 cases pending in the courts respectively.The extremely poor ratio of judges per population, which was one judge for every 140,000 persons in Pakistan, was one of the main reasons for pendency of cases.A number of measures have already been taken to strengthen the judiciary by providing better infrastructure, latest gadgets and international standard contemporary skills.
The leaders of the Pakistan must get together for ensuring a perpetual peace, security and prosperity for the succeeding generations. A new order should be evolved based upon the golden principals of truth, justice and fairplay. This would be of great help an end to the curse of crime in Pakistan. The future of human civilization and the fate of our country hang in the balance. One wrong step can demon us; one right step can save us. The future of Pakistan rests on this choice. We must learn to ignore our petty interests and prejudices in order to rise to the occasion and to take the right decision.