- Justice delayed is justice denied
By: Salman Munir
In 2017, I was back in a High Court after some 35 years, with an exception. This time I was in the Sindh High Court, Karachi appearing as a witness in a wrongful dismissal case instead of the Lahore High Court, Lahore where I appeared as a practicing lawyer until 1982. Nothing much had changed during these 35 long years. The Cause List (list of cases for the day) was still a mile long and the title of the case and the name of the lawyer were called out aloud by a peon at the entrance of the Courtroom. Just like 1982. And perhaps like 1882. The whole morning was taken up by the first two cases because of the lengthy arguments of the lawyers concerned. Needless to say, I returned to Islamabad without the case coming up for hearing.
Recently I was reading a book entitled “Out of Order” written by Sandra Day O’Connor, a retired Associate Justice of the Supreme Court of the United States. This book contains stories from the history of the Supreme Court and mentions how the Supreme Court has reduced the time allocation for lawyers to argue orally to just 30 minutes. This was not always the case. In the beginning, lawyers had unlimited time for oral argument. The Court realized that quantity was not quality. So in 1848, the Court limited arguments to two hours for each side. This was then reduced to one hour per side in 1925 and finally in 1970 each side had just 30 minutes for oral argument. This practice continues today. In fact the Court has also put limitations on written briefs. The parties’ briefs in cases coming up for oral arguments may not exceed 15,000 words. This ensures that the lawyers fully research and contain all relevant citations in their briefs, rather than depending upon their eloquence in oral arguments. This cuts both ways and gives Justices the time to read and even have the briefs researched thoroughly with the help of their assistants and then seek clarifications, if needed, in those 30 minutes.
If we were to follow this practice, not only will this tremendously help in bringing down the number of cases pending adjudication, it will also help in resolving a longstanding issue of the up-and-coming lawyers. These lawyers feel rather strongly that they are not given as much time as the more established big name or big firm lawyers. A recent op-ed written by a budding lawyer and published in another English language newspaper from Karachi, mentioned exactly the same issue. Giving unlimited time to lawyers just prolongs cases and burdens their clients with additional appearance fees and expenses for travel and hotel. A few months ago, a lawyer argued for 4 straight days about just one aspect of a case. Then there were other lawyers arguing about other aspects of the same case. Result: case still pending.
Another way to limit cases and expedite justice is to simplify the language contained in the statutes. A simple reading of any statute, old or new, will show us that it’s written in a language that is not in common use.
In my view it’s time for the Supreme Court and even the High Courts to limit the time of the oral arguments to a maximum of 30 minutes for each party and insist that the written briefs with a set word limit must contain all relevant citations and arguments in their favor. The Courts can then focus on seeking clarifications during the oral arguments. Imagine, if we had followed this practice in the Panama cases for example; how much time and public money we could have saved? Gradually this practice can be introduced to the subordinate judiciary to expedite cases.
Another way to limit cases and expedite justice is to simplify the language contained in the statutes. A simple reading of any statute, old or new, will show us that it’s written in a language that is not in common use. In our daily lives how many times do we use thereafter, or hereinafter or party of the first or second part etc. Phrases in Urdu are even more ridiculous. Consider a commonly written phrase in Urdu language plaints/applications “Mun kay Mussami.” Whatever that means. No real efforts have been made to simplify language so that a layperson can understand the meaning without the help of the lawyers, who like psychologists and doctors love jargon, which invariably complicates thing. Increasingly, large US law firms are now employing editors to simplify letters sent to clients and even advise on the wording of contracts.
In UK, the City Council in Bradford experimented with plain English with fascinating results. In consultation with a lawyer, a group comprising a journalist, a librarian, teachers etc. redrafted the rules, standing orders and other legal documents. The final product was much easier to understand because jargon was kept to a minimum. The reason our statutes are so complicated is because of the jargon and absence of fresh thinking or thinking out of the box. Perhaps our Governmental Law departments staffed with career civil servants or so-called drafting experts should also consider employing English and Urdu language teachers, editors, writers, journalists and librarians. The final product will surely help litigants and further the cause of justice.
Another hot topic in criminal justice system is that of perjury. The Supreme Court has in the last few years lamented time and again perjury by the witnesses in criminal trials. Prevention being better than cure, the District and Sessions Judges may like to prepare lists of all witnesses in criminal trials pending in their areas to see if one witness was appearing in more than one criminal case. This National Identity Cards-driven database will flag the “usual suspects” or the professional witnesses. The tendency is that such witnesses stick to their areas of residence and, therefore, could be appearing in more than one case in the same area. A similar exercise can be carried out to flag out those police officers who like to rely on torture or false testimonies to strengthen their investigations. They generally repeat their “special expertise” in every police station they are attached to. Once this list is prepared, it will be easy to see if the same witness is appearing in more than one case or if there is a connection between a witness and an errant police officer.
A few months ago, I wrote “While volunteering for a few months in 2018 with Justice Project Pakistan (JPP), a non-profit human rights law firm established in 2009 in Lahore, I came across some 1867 cases of torture and destruction of rights by police in Faisalabad district alone. Although most victims were men, police did not spare women and even children. Many of the police atrocities have been documented in reports prepared by students of The Allard K. Lowenstein International Human Rights Clinic at Yale Law School and JPP, published in June 2014.” Later on upon analyzing this study we found that the same police officers carried out atrocities whether posted in one police station or another. I guess old habits do die hard.
So it will not be difficult to look for professional witnesses and errant police officers and take preventive action against them. By the time a person convicted for murder under duress or a false testimony is finally released by the Supreme Court, he or she has spent considerable time behind bars. Sometimes even a lifetime. The State must proceed against witnesses who give false testimony, and those police officers who encourage and perpetuate such testimonies by knowingly producing such witnesses. In the recent years the Supreme Court has released a number of death row prisoners who had been convicted on false testimonies but without compensation for living behind bars. While I agree that no amount of compensation can bring back the years spent behind bars, however, some compensation to start life anew is warranted even if there is an absence of a specific law on the subject. In my view, the Court could give the Government a direction to “adequately” compensate the person concerned within a week or two on account of the criminal justice system’s failure to provide justice. People, after all, look for justice towards the Supreme Court and only the Supreme Court. A friend once told me that if he were killed in New York, he would die with the satisfaction that his killers will be caught and justice served. In the same breath he also said that if he were killed in Karachi, he would die with the regret that his killers will not be caught and justice shall not be served. This coming from a law abiding and tax-paying citizen is a sad commentary on our police and justice system.
Thurgood Marshall, Associate Justice of the Supreme Court of the United States, and the first African-American Justice famously said “We must never forget that the only real source of power that we as judges can tap is the respect of the people.”
Let’s work towards getting justice and the respect of all people!
Salman Munir is a management consultant and innocence lawyer. He can be reached at [email protected]
