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Full Text of Speech delivered by Chief Justice (R) Abdul Karim Khan Kundi on the topic of "Justice hurried is justice buried" at a Seminar conducted by the National Accountability Bureau (NAB) at the Federal Judicial Academy, Islamabad, Pakistan on 5th May, 2005

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Worthy Guests, Ladies and Gentlemen:

One cannot deny the fact that the Courts in Pakistan are so overburdened that administration of justice suffers and suffers badly. This is practically the situation in all our Courts from the apex, the Supreme Court, to the subordinate District Courts.

The backlog of cases and the constant accumulation of new ones under this heading means that quick delivery of justice has become impracticable. Even more frustrating is the fact that quite often an unacceptably large proportion of these cases lay pending for years and sometimes even decades

In India, for example, where there are about 2.8 crore cases pending in the courts, amendments have been brought about in the Civil Procedure Code laying down stringent time periods for completion of pleadings in civil cases. The number of adjournments which can be granted by Courts in the proceedings has also been restricted. We could emulate India. However, it is widely acknowledged there that these amendments in the CPC, relating particularly to restricting adjournments, are mostly breached rather than observed

Adjournments regularly cause delays. The lawyers are then blamed for using such delaying tactics, but what needs to be realized is that no lawyer can succeed in taking an adjournment if the Court refuses to grant it. But to be fair, it is not the Courts that are to be held liable for this either, for in most circumstances they are helpless. Innumerable cases are listed every day before a Civil Judge in almost every major urban center of Pakistan. It is obviously not possible for a Judge to seriously hear and finally decide more than 3 to 5 cases in a day. In the remaining cases, only interim orders or directions are passed. In this way, the cases continue to pile up in huge proportion

The availability of opportunities of Appeals, Revision Petitions, Special Leave Petitions, pose serious hurdles in the final disposal of cases. The uncertainty of legal position on several issues and the very nature of development of common law also encourages legal practitioners to seek newer grounds for filing of Appeals, Revisions and other Petitions.

Ladies and Gentlemen:

In spite of these odds, the judicial service of Pakistan being the last bastion of hope for the masses must continue to discharge its functions to the best of its ability and competence. The large number of cases pending in Courts and the surge of new cases being lodged every day could be taken as a proof of people's increasing demand for justice.

This "demand" for justice must be met with a commensurate "supply" under the simple principle of "demand and supply". What needs to be appreciated is that this demand is for "Justice" and cannot be simply met with a supply of more courts, more judges and quicker and shorter procedures unless they are all geared at providing substantial and complete Justice.

While it is true and better known that "Justice delayed is justice denied" and quicker ways and means must be sought for dispensation of justice. But, while doing so, one cannot afford to overlook the flip side of the coin that "Justice hurried is Justice buried".

The due process of law must not be compromised in any attempt at providing speedy justice.

Ladies and Gentlemen:

Let's try to understand what "due process of law" is?

There should be no doubt that, at the minimum, the Courts must not take any decisions without affording all parties a meaningful opportunity of hearing; and every decision by a Judge must rest on sound legal reasoning.

What is still more important for ensuring the "due process of law" is that:

• Firstly, the procedure provided by law must be such as to advance the cause of substantial and complete justice; and
• Secondly, the procedure so laid down is duly followed by the courts in administering justice.

While a judge could do away with a technicality coming in the way of substantial justice, the entire procedure governing a civil or criminal proceeding should not be considered a mere formality or technicality. Because once you start belittling the significance of procedure, your ability to appreciate its relevance and value to the administration of justice and, resultantly, your interest and respect for procedure would start declining. It would not be surprising if you start disregarding the procedure considering it yet another impediment in the way of justice and another wastage of the court's time.

Ladies and Gentlemen:

As regards the sanctity of procedure, a very pertinent example from our holy scripture, the Noble Qur'an, comes to mind when Allah Almighty ordered all angels to bow before Adam and Iblees (Shaitaan) refused. While Allah certainly knew the cause of Shaitaan's refusal, yet Allah in His Ultimate Wisdom deemed it fit to first call Shaitaan's explanation as to why he did not bow before pronouncing judgment against Shaitaan and punishing him.

Ladies and Gentlemen:

Let us not act smarter than God. Let us learn from Divine Wisdom. If Allah, despite His all-encompassing knowledge, chose to resort to a procedure of providing meaningful opportunity to Shaitaan before proceeding against him, which could easily be termed a mere formality for Allah, why should we undermine the importance of procedure and start considering it a wastage of time owing solely to our limited wisdom and knowledge. As the saying goes: "Justice should not only be done but also appear to have been done".

It is interesting that there is a saying in Arabic to the effect that "Haste is from Shaitaan" (al 'ujlah min-ash-Shaitaan). In Urdu, we say 'jaldi ka kaam shaitaan ka kaam hota hai'. I would not be surprised if these sayings have roots in authentic Islamic tradition.

Ladies and Gentlemen:

It should also be remembered that, while laying down the procedure for timely provision of justice, the legislature should not itself act in undue haste. There are indeed instances where legislatures worldwide have shown intended or unintended disregard to the ends of justice in formulating laws and procedures for administering justice in particular cases.

The legal process begins not when an offence is committed or when the police begins investigation, nor does it begin when the accused is brought before a judge, it begins when our representatives in Parliament agree upon a bill and pass it through the legislative process. This, the conception of justice, therefore, affects all subsequent stages of the legal (police) and judicial (judiciary) process.

We cannot deny that at the root of any democracy are certain inalienable freedoms such as the freedoms of expression, life, liberty, etc. However, the most important political freedom in a democracy is the freedom to choose one's representatives to form both legislature and executive organs of the state. These representatives are entrusted with the responsibility of looking after the interests of their constituents and the nation as a whole by arguing, debating and then passing or rejecting bills brought before them in the Parliament.

This legislative process is the essence of democracy; because only through argument and debate can we come to see one another's viewpoints. It is this scrutiny and examination that helps us create a set of laws that are accepted by the people and thus obeyed by them all.

If this process is compromised in any way whatsoever then the victims shall be none other than the people. Haste during the passing of a bill may have catastrophic outcomes as regards due process of law.

The PATRIOT ACT of 2001 passed in USA by the United States Congress is a prime example of just such a compromise in the process. Passed just 45 days after the 9-11 incident by US Congress, there was virtually no discussion or debate on the bill. In fact, most congressmen did not even read the bill. Massive violations of United States constitution and the abuse of numerous fundamental rights of individuals resultantly ensued. For instance, one major violation of due process of law is that a suspect person could be detained indefinitely for consecutive six-month terms without meaningful judicial review in a country like US which is otherwise famous for its constitutional freedoms and guaranteed fundamental rights.

Ladies and Gentlemen:

The procedure of a court must be there to assist in the organized, fair and transparent conduct of court proceedings. In both formulating and applying the procedure, I would say that the emphasis should be on the "timely" and not just "early" completion of proceedings. Let the law take its course and let the judicial process and procedures be not undermined.

However, I do not want to say that there should be no innovations or modifications to the existing procedure or resort to other solutions and methods like increase in the number of judges. In fact, if it takes more judges and courts to administer substantial and complete justice by adhering to the procedure, then let the number of judges be increased be it at whatever cost. The government must realize its responsibility and duly prioritize the access of cheap and speedy justice to the litigant public as one of its top priorities.

Ladies and Gentlemen:

I would like to point out that in appropriate cases or circumstances, the procedure or conduct of proceedings could be legitimately hastened up. A classification of such cases or circumstances could be based on a litigant's hardship or the human or humanitarian aspect of a case.

A general classification could also be made of cases where loss of time could prove irreparable or otherwise incalculable in monetary terms. For example, a young woman seeking dissolution of marriage, where prolonged pendency over years could seriously jeopardize her chances of remarrying.

Likewise, rent matters where eviction is sought by a retired government servant or his widow owning no other property but the one occupied by the tenant.

Another common example would be of accused persons languishing in jails awaiting their release. Judges need to be sensitized for depriving a person of his liberty merely on accusation. It is found that the period of detention undergone weights heavily with the courts in deciding on whether to grant bail or not. This factor is actually not relevant. We know that the period of detaining a person in Jail as an under trial is:

• To prevent the person from committing a repeat offence;
• To prevent a person from tempering with evidence or intimidating
• Witnesses; or
• In extreme cases to prevent a person from escaping.

Unfortunately, however, it is a common practice that the people are detained in jail and remain under-trial even when none of the aforesaid purposes is either applicable or is fulfilled. Detaining a person in prison as an under-trial prisoner is often used as a measure of "punishment", which it is not meant to be. These principles need to be strictly applied keeping the human and humanitarian aspect in view.

There could be so many examples and instances. What I wish to indicate is that in cases where time is of essence and can be objectively so identified could be classified for preferential treatment as regards their timely disposal by the courts.

Ladies and Gentlemen:

What needs to be done is to increase efficiency in the judicial system, placing the emphasis on delivering more justice in the least amount of time and not simply being pressurized into delivering more decisions in less time.

In this regard, once more judges have been made available, as I pointed out before, judges should never have more than 30 matters listed before him or her on any given day. A class of special judges with an exemplary record of quick disposal of cases should be entrusted with long-pending matters and no new matters should be listed before such judges ? the focus being to clear up the backlog and prevent new cases from 'clogging the pipe'. Moreover, monitoring mechanisms need to be developed for judges of all the courts whereby both quantity and quality of judicial work would be objectively monitored.

Also judges in the District Courts need to be trained to be able face new challenges that will require adaptability and flexibility on the part of the judge. A system of continuing education, refresher courses and orientation programs designed to enhance a judge's skills and knowledge base should be established for imparting quality justice. I am happy that the Federal Judicial Academy, where we are holding this seminar today, is making a good effort in this regard. But more needs to be done.

Information Technology must be increasingly utilized by the justice system in the country. Court records need to be digitalised, electronic filing, video conferencing and similar other methodologies can save a lot of time and energy of those associated with the justice delivery system and can also avoid unnecessary movement of person and paper from place to place.

Likewise, in the superior Courts, dedicated benches should be formed dealing with only one specialized area of law like general civil, criminal, commercial or any other specialized field of law.

Ladies and Gentlemen:

I would sum up by concluding that:

• Firstly, there is need of a thoughtful long-term planning on part of all the concerned individuals and institutions.
• Secondly, both at the governmental executive level as well as within the superior and subordinate judiciary alike, there is required a certain introspection and a determination to effect the reforms for providing timely, substantial and complete justice to the general public through the courts of law.
• Lastly, in formulating and effecting the improved justice system, the judges should be made more efficient to be able to deliver justice in a "timely" and not a "hurried up" manner.

Thank you very much.

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