Justice delayed is justice denied

ISLAMABAD:

The Supreme Court has ruled that inordinate or long delay in the conclusion of a trial for no fault of the accused and his/her protracted detention without determination of guilt amount to harassment and abuse of the process of law.

“Such delay can therefore be a valid ground for releasing the accused on bail and restoring his fundamental right to life and liberty", said Justice Syed Mansoor Ali Shah in a judgement while hearing a NAB plea regarding cancellation of bail to an accused person.

A three-judge bench of the apex court led by Chief Justice of Pakistan Umar Ata Bandial heard the matter.

The court said there was no doubt that the right to life and liberty guaranteed by Article 9 of the Constitution is “subject to law” but the law, which can curtail this right, means a law that promotes the larger public interest and not a law that impedes “fair trial” and limits “due process”.

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The judgement said that the general criminal law has balanced the public interest and individual rights to life and liberty by recognising the right of an accused to be released on bail, in case the trial against him is not concluded, for no fault on his part, within a specified period from the date of his detention, that is, one year for offences not punishable with death and two years for offences punishable with death.

It noted that the judgment relied upon by the learned counsel for the petitioner also recognises the ground of “shocking, unconscionable and inordinate delay” in the conclusion of the trial as a ground for granting the accused the relief of bail.

However, it did not specify what period of delay would be considered “shocking, unconscionable and inordinate”. “It has left to the discretion of the courts to determine it in the peculiar facts and circumstances of each case.”

The court also said that such discretion must be structured equitably and exercised uniformly. In this regard, the courts can borrow guidance from, and act upon, the legislative wisdom codified in the general criminal law balancing the public interest with the individual rights, and can accordingly give effect to the scheme of the NAB Ordinance and enforce the fundamental rights of the accused to life, liberty, fair trial and due process guaranteed under Articles 9 and 10A of the Constitution.

The court also said that inordinate and endless delay in the conclusion of a criminal trial is the singular most important challenge faced by our criminal justice system and has a devastating effect on the credibility, transparency, public confidence and health of our justice system.

The judgement observed that in order to meet this challenge, coordinated efforts from all the organs of the government, legislature, executive as well as judiciary were required. It suggested that one immediate solution was to activate the provincial justice committees constituted under the National Judicial (Policy Making) Committee Ordinance 2002.

It said that the chief justices of the high courts, who are the chairpersons of these committees, must convene and hold meetings of these Committees at least on a quarterly basis.

Similarly, the vice chairperson of the provincial bar councils may also be invited to attend and participate in meetings of these committees as the bar is an important stakeholder in the justice system. Likewise, the district criminal justice coordination committees established under the Police Order 2002 should also be revitalised for reviewing and improving the operation of the criminal justice system.

“Additionally, the high courts should take up and address, on a priority basis, the issues relating to appointments of judges in the district judiciary against the available vacant posts and consider the creation of new posts to reduce and rationalise the heavy dockets of cases before the general and special courts,” the judgement said.

It added that it was needless to reiterate that the high courts have the constitutional mandate under Article 203 of the Constitution to supervise and control all courts, whether of general or special jurisdiction, established by law as per Article 175(1) of the Constitution within their respective jurisdiction.

The court ordered its office to send copies of this order to the registrars of all the high courts and to the secretaries of all the federal and provincial law ministries and departments.