Fighting Case-load Challenge Of Judiciary

By Mukti Rijal
THE senior most judge of the Supreme Court Hon. Keshav Prasad Upadhyaya has assumed the office of Chief Justice recently. The Constitutional Council recommended his name for the highest position in the judiciary in deference to the tradition and established track of seniority. Accordingly, His Majesty the King appointed justice Upadhyaya to head the apex court. Chief Justice Upadhyaya will lead the judiciary of the Kingdom of Nepal for about three years before he goes out for retirement.

Important
Mr Upadhyaya’s tenure as helmsman of judiciary will remain most critical and important as he comes steer the judiciary at a time when the performance of law adjudicating institutions has come under sharper focus and scrutiny.

Judiciary is problem ridden. The case-load in the courts is all time high. The most critical condition is found in the Supreme Court as it is overstrained with case burden. The case disposal pace is slow. Cases have been delayed in the absence of speedier settlement due to one or other reasons. Justice delayed is justice denied. This dictum underlines the right to speedy justice as a fundamental human rights of the citizens.

Delays in the court for dispute settlement can reinforce other problems as well. When a case is pending for an extended period, files can disappear, witnesses and party to the suit may lose their interest in the litigation. Mounting backlog also threatens the quality of decisions by judges. Heavy workload can prevent them from studying cases thoroughly and evaluating corpus of evidence meticulously. Consequently, the very purpose of justice may be defeated.

There exist several reasons for delay in justice dispensation. Resources and infrastructure constraints are one of the principal contributing factors. Poor facilities impede working in our courts. There is not even a feeble base of intellectual infrastructure in the courts for judges to enrich oneself to add quality to the judgements. Just 0.03 percentage of the national budget is allocated to judiciary. With such a meagre resource, judiciary is hard pressed to meet its routine needs.

Another reason for backlog is what can be called as litigation explosion. There prevails a tendency in some sections of the society to litigate even at the slight hint of conflict. Litigation is also used as a harassment strategy.

Some disputes that could be resolved at the political level or discussed in the Parliament if not negotiated at the party level are taken to the court. Even minor cases are appealed to the Supreme Court with the claim that these cases involve issues of law. Moreover, the Supreme Court is especially weighed down by such disputes in which litigations are tinged with political interests.

Citing the context in the Philippines, a writer makes some pertinent observation saying, "Lobbying by politicians on judicial decisions has remained a common practiced in the post- Marcos period. It is difficult to assess how successful this lobbying has been in actual practice however. Whatever the case, the persistence of such lobbying has acted as a further factor discrediting the reputation of judiciary."

The Nepalese context is not very much different. The court decisions are evaluated or examined against political frame of reference. The decisions have to be scrutinised with reference to the constitutional spirit or provisions but not according to yardstick or partisan motives.

It has been alleged that court delays are caused due to tactics applied by lawyers as well. Requests for postponement for hearing of cases are said to be popular among some lawyers. It may not be true in majority of cases. However, in some case the greater number of court sessions a case requires, the more frequently the lawyer must appear in court. This can be translated into added charge to clients. Lawyers are not always to be blamed for delays. Some blemishes can be apportioned to judges as well.

Delay tactics resorted by lawyers are sometimes rewarded by judges with postponement. Postponements can provide a judge some temporary relief in his or her working schedule.

Court delays are severe also due to the ineptitude and inefficiency in the internal administration of court functions. Flow of court cases is very much tardy and slow bordering on some kind of red tapism which is also accepted by the Report relating to court management. It is to be note that the Court Management Report was prepared by a committee headed by the incumbent chief justice. The report provides some apt suggestions in fighting court delays so that backlog or are cleared efficiently. The newly appointed Chief Justice seems committed to implement the recommendations of the committee report.

Expectation
Much is expected by the judiciary in this democratic era particularly owing to the fact that the democratic constitution has made it very strong and independent. Its achievement during the last years is significant as well. As a minor is not made to face legal risks of the crime he commits and enjoys exemptions taking recourse to the principle of doli in capex similarly our judiciary should not be ruthlessly criticised as it is still a minor. Now it is transiting from minor to adolescence. The judiciary should be very much attentive to produce credible results through proper justice administration system.

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