There is a well-known legal maxim that justice delayed is justice denied. This maxim has profound implications. If a party affected by a lawsuit is not given legal redress or equitable justice in time, it is as good as having no justice at all. Affected parties to a lawsuit have the right to get justice as one of the fundamental rights. They have the right to get expeditious trial and suchlike rights under the legal system. But there is often procrastination on the part of lawyers or judges in settling legal cases and delivering justice in countries like ours.
There may be several factors responsible for procrastination in the justice delivery system. Such factors may be reasonable or not. The legal case in question may be too complex to deal with, the existing legal system may be too complex, there may be too many cases or the parties concerned may be ordinary people with no political access or favour. More importantly, lawyers or judges may lack required competence to deal with all kinds of lawsuits or they may just want to keep the cases lingering. In some cases, judges tend to seek evidence after evidence, thus slowing down the case settlement process. Releasing the accused on bail is a fashion in Nepal’s judicial system. When the culprit is releases on bail, the case often gets delayed. In fact, judges hardly give priority to such cases. Such cases may linger for years.
According to John Owen Wilson, Chief Justice of the Supreme Court of British Columbia, a month’s delay is normal; two months’ delay is long; and three months’ delay is too long. In our case, delay in settling cases runs into not months but into years and even decades. There are district courts, high courts and the Supreme Court in Nepal. There are thousands of cases pending in these courts. And the number of cases is increasing day by day. There is an informal saying that if you are involved in a lawsuit when you are young, the case may not get settled even in your old age. This saying seems too stretched; but there is some truth in it. It is a paradox.
Lawsuits should be settled as soon as possible. It is the everyday harness of judges, lawyers and other legal professionals to deal with lawsuits. But the parties to such lawsuits have to undergo mental stress and tension till they are settled. As long as the lawsuits are being fought, time, money and energy have to be spent on them. Judges and lawyers should look at the lawsuits from this perspective, too.
It is reported that there is a shortage of judges. The hearing of Sandeep Lamichhane has been postponed time and again citing a shortage of judges. Frequent postponements of the case have frustrated and given tension to Lamichhane so much so that he has announced his leaving the national cricket team. This is just the tip of the iceberg. There is a tendency on the part of judges to defer hearings on one pretext or the other. Experts point out that the major reason behind delay in the justice delivery system is the procedure-centric justice delivery system. There is a long procedure to settle cases. Judges may issue unnecessary orders or seek one evidence after the other. All this will lead to prolonging hearings. Without timely hearings, lawsuits are bound to linger.
Some cases are left unsettled for years, fearing that doing so may give rise to controversy or put at stake their professional careers. It may be noted that court decisions should be based on objective fact or evidence. As such, it has been imperative to reform the judicial system so as to expedite the settlement of lawsuits and deliver justice in time to the relief of the parties to the lawsuits. For this, it is essential to identify how the judicial system is working. Judges are often appointed on a political quota, when they should be appointed on the basis of their qualifications, competence and experience. Judges should be competent enough to comprehend lawsuits well. When lawsuits are settled improperly, the parties affected often knock at the doors of the higher courts: high courts and the Supreme Court.
In order to reform the judicial system, it is necessary that the court administration and lawyers ensure cooperation. Hearings should be conducted in a timely manner. District courts and high courts should be made more effective so that lawsuits can be settled at the district or high court level so that the Supreme Court can be relieved of its burden. Minor cases can be settled at the mediation level to give relief to the district and high courts, and the Supreme Court. For this, mediation centres should be prioritised.
Moreover, the Supreme Court should monitor the performance of the district and high courts, evaluate the judges and make them fully accountable to their work. But first the Supreme Court should set itself an example. There are many backlogs of cases pending at the Supreme Court for years. These backlogs need to be cleared without delay. After clearing all the backlogs in the district courts, the high courts and the Supreme Court, the judiciary can be brought back to track and the trust of people, which has now been tarnished beyond repair in a sense, in the judicial system can be restored. It would be propitious to mention a Latin aphorism: Actus curiae neminem gravabit (The act of court shall prejudice no one). The court is under an obligation to undo the wrong done to a party by its own act.
(Maharjan has been regularly writing on contemporary issues for this daily since 2000.)