JUSTICE DELAYED IS JUSTICE DENIED

WHETHER JUSTICE DELAYED IS JUSTICE DENIED

By

Syed Muhammad Kaleem Ahmad Khurshid,

President, Lahore High Court Bar Association

One must learn from the past and refrain from repeating the mistakes. There is a general tendency that the judiciary as well as the lawyers are being criticised and said to be responsible for the delay in the process of justice. The developed societies and overcrowded countries have highly complexed laws, thus, causing delay in the disposal of the cases even then this aspect of the matter has never been held to be the main hurdle in the process of justice. Even in civilized societies the Court system is provided by the States to its citizens for resolving their disputes and in our society the dispute resolving apparatus which the State provides and which we as lawyers serve produces the result which is just proper and if we take the view that justice delayed is justice denied then this view will affect the society and may cause hardships without appreciation of the real matter.

2. In my opinion the time that passes between the arising of claim and disposal of it by a final judgment, can be divided into following periods, namely the arising of the claim, commencement of the proceedings of Court, service of opposite‑party, the trial period, the period between the trial and judgment and disposal of the final appeal. Improper delay may occur in this process as such the reasons for the delay in such circumstances and the remedies for it are different at different stages and the main problem is that delay in not synonymous with the passage of time rather improper delay affects the society and such improper delay amounts to the denial of justice.

3. Lawyers generally take time to process claim and for the drafting of the petitions, suits and complaints, notice to the opposite‑party. Courts allow time for needs which are incidental to the main proceedings, issues are formulated in order to avoid surprises, evidence is collected and complexity of the matter may determine the quantum of evidence and these are sufficient reasons in taking considerable time, as such the time consumed in processing the claim cannot be said to be improper delay. It is the duty of the lawyers to see that the disputes are resolved quickly and this vital service to the society by the lawyers is their paramount consideration.

4. The recent publicity in respect of undue delay in the process of justice is highlighted by the executive but it reflects a long standing failure by the lawyers to inform the public of its judicial purpose, skill and services provided by the legal profession to, the litigants for resolving their disputes.

5. Unless and until the delay is not appreciated in its true perspective we cannot say that the justice delayed is justice denied. Generally delay is caused by the Courts due to overwork because the cases are fixed before the benches after many years in such circumstances the executive is responsible for such delay but the delay which is incidental to the proceedings, in order to enable the parties to settle the issue to collect the evidence, cannot amount to improper delay and the time consumed in such matters will not amount to "justice delayed is justice denied". The lawyers are not responsible for improper delay in the process of justice. The working of the Courts, case load, the complexity of the litigation and quantum of evidence is the relevant material for the speedy justice and the decision of cases cannot be equated with treatment of a patient. Thus, without providing full opportunity for the production of evidence to the opposite‑party, the decision of suit in hurry and haphazard manner will amount to denial of justice and the real purposes of administration of justice may be flouted by speedy disposal which amounts to "justice hurried is justice buried". Reliance is placed on PLD'1996 Lah. 210 where concept of hearing has been highlighted.

6. The improper delay can be avoided by simplifying the present procedural laws and legislation can be said to be responsible for improper delay because there are different types of Courts, different types of legislation for different subjects thus resulting in delaying the justice. It will not be out of place to mention here that certain suggestions are given by the Courts to simplify the procedure but the same are not incorporated by the Legislature, thus, causing hardships for the litigants. At this juncture I will refer to PLD 1973 Supreme Court page 619 wherein it was observed by the Supreme Court of Pakistan that the definition of cheating under section 415 requires amendment but the said definition of "cheating." was amended in 1980. There are many other examples in this behalf and the same was amended in such circumstances it can easily be said that when the cases are being decided on hypertechnical issues by the Courts then this may amount to "justice delayed is justice denied". The lawyers are not responsible for such inordinate delay and the legislation and executive can be held responsible for inordinate delay. It is the duty of an Advocate and he is under obligation to assist the Courts in the litigation entrusted to him. The lawyers always took interest that the matter should be settled without undue delay but some instances of delay do not amount to improper delay in such extreme cases. Deliberate delay in the process of litigation may amount to the abuse of the process of the Court but this undue delay can be avoided when the time limit should be fixed within which case of a particular kind may be dealt with and disposed of and the superior Courts should seek explanation from the lower Courts for such delay. The Court must adopt administrative structure and machinery to ensure that litigation is concluded within the stipulated period. The Courts must adopt a structure appropriate to the speedy disposal of the litigation so that the delay should not amount to the denial of justice. In order to achieve this object the number of claims can be fixed being dealt with by an advocate by the Bar Council. Overcrowded professional engagements of an advocate may be one cause of delay in the process of justice. The number of Courts should be increased so that the overworking of the Courts should not be responsible for delay which amounts to denial of justice. Lastly, statutes and the rules made thereunder should be simplified by the legislation and complexity of the statutes is the main reason for process of delay.

7. In order to get rid of this situation that justice delayed is justice denied some proposals are given below:‑‑

(i) Before the framing of issues, the counsel for the parties should be required to submit a summary of the early neutral evaluation and there should be a specific provision for referring the matter to the arbitrator and if this offer is accepted and parties have referred the matter to the arbitrators the parties may be exempted from the payment of court‑fee. This process is more conciliatory, less‑formal and more flexible. The pre‑trial proceedings can be introduced in the civil suits.

(ii) That if the parties are not at variance on facts, question of law should be formulated and reference can be sent to the High Court under section 113, C.P.C. The aforesaid section 113, C.P.C. may be amended and reference may be laid at rest within one month.

(iii) The provision in respect of interrogatories and admission of documents, admissions of facts, discovery, inspection; production, impounding and returning of documents shall be laid at rest before the formulation of issues in order to avoid delays.

(iv) The Constitutional Courts can avoid undue remands if there is uniformity of judgments, thus, delays can be avoided.

(v) Delays can also be avoided when substituted service is adopted simultaneously.

(vi) Written arguments should be asked to be produced and still the party insists to make oral submissions specified time should be allocated for oral arguments in the interim order.

(vii) Parallel judicial system by the Government are creating hurdles in the administration of justice and the time tested present judicial system is fully appreciated by the people and approved by them. The said system also enjoys the confidence of the people, thus, parallel judicial system should be abolished.

(viii)Exemplary costs should be imposed in order to avoid frivolous litigation.

(ix) The number of Forensic Science Laboratories should be increased and serious action should be taken against the persons responsible for undue delays.

(x) Time should be fixed for hearing of the case and frequent adjournments should be avoided.

(xi) Supervisory jurisdiction may be exercised tinder Article 203 of the Constitution of Islamic Republic of Pakistan if the ruling of the Constitutional Courts are not followed by the subordinate Courts then disciplinary actions should be taken and rules should also be framed in this respect.

(xii) Ineffective Supreme Judicial Council is also a hurdle in the administration of justice.

(xiii) The time limit should be fixed within which cases of a particular kind may be dealt with and disposed of by the lower Courts and the superior Courts should seek explanation from the lower Courts for such delay and disciplinary action may be taken against the Courts responsible for such delay.

(xiv) The High Court must adopt a structure appropriate to the speedy disposal of the litigation and the liability of the delay must be fixed.

(xv) The number 'of claims should be fixed by the Bar Councils. Overcrowded professional engagements of a professional are also a cause for the delay in the process of justice.

(xvi) The number of Courts should be increased and necessary funds should be provided by the executive for the disposal of matters within a reasonable time.

(xvii) The complexed procedural laws should be simplified by the legislation and the suggestions by the superior Courts should become part of legislation and if the same are not incorporated in the statutes within six months due to oversight of the Legislature the public should not think that justice delayed amounts to denial of justice.

(xviii) That it is a duty of the Appellate Court to resolve that the decision by the Court or Tribunal is incorrect, mala fide, or based on incorrect assumption of facts and the Appellate Court should be authorised to pass an order to direct the lower Court to pay the costs to the aggrieved persons.

(xix) That unapproved reporting in the Law Journals is also a cause of delay in the process of justice and it creates hardships for the public. Thus, unapproved reporting in the Law Journals is another cause of the delay, thus, undue delay occurring due to the reckless reporting can be avoided.

(xx) The rule‑making‑powers are not being exercised by the High Court otherwise the confusion can be resolved by exercising these powers and interpretation of the rules may result in the speedy disposal of cases.

(xxi) The Bar Councils should be authorised to propose amendments in the Procedural Laws and if the proposed amendments are not incorporated in the statutes by Legislature within six months then the same may be presumed to be the part of rules. Thus, undue hardship to the litigants can also be avoided and nobody can say that justice delayed is justice denied.

(xxii) That evidence in civil case should be recorded through local commission in order to avoid delays in recording of evidence.

(xxiii) Article 163 of the Qanun‑e‑Shahadat may please be amended to this effect that if the plaintiff states on oath that his claim is true and the defendant refuses to make a statement on oath then the suit should be decreed. On the contrary, if the defendant makes a statement on oath and the plaintiff fails to rebut the same on oath the suit shall be dismissed.

(xxiv) That if the denial in the written statement or evidence in this respect is false then the person should be prosecuted for perjury.

In my humble opinion the time consumed for processing the claim and recording of evidence will not amount to improper delay and the same will not amount to "justice delayed is justice denied" rather if the justice is hurried that will amount, to injustice and will cause hardship and it can be said that if the justice is, rushed then the justice is crushed.