Source : Google photo
Synopsis : A slow and cumbersome judicial process that is corrupt creates enormous backlogs in the courts that result in the delay in the deliverance of the justice people seek there. The blog looks at the origin of this system and suggests ways to reform it so that speedier justice is available to all the litigants .
There was a king in India who was known for his fairness in judging people who went to his court with their problems and sought justice. One day two women went to his court with a kid that both claimed as their own so the king had to decide who was the real mother. This was long before the advent of DNA testing . The king patiently listened to the arguments put forth by the two women and finally came to his conclusion.
He asked his executioner to split the kid in two with a sword and asked the two women to share the kid this way but the real mother begged the king to spare the life of the kid and said that she was willing to give the kid to the other woman. The king now knew who the real mother was and gave the kid to her custody. The other woman was then punished with lashes for falsely claiming the kid.
There are many such stories that fill the annals of history before the modern day court system was introduced and a breed of immoral, inept and greedy lawyers in black gowns filled the hallways of the courts everywhere. They look more like vultures that prey on aggrieved people who seek justice for the wrong done to them. They file their papers, are given a docket number and a date for their hearings , pay the required fees and seek the counsel of the vultures who now descend on them in large numbers.
They see a client as a source of money for years so they keep on postponing the hearing date each time the client comes to the court seeking justice. The lawyers on both side of the cases do the same so a case can linger for years and the litigants may even die but their cases do not come up for hearing that frustrates the litigants. But the lawyers get paid just the same in the meantime so they take advantage of the system that permits them to postpone a case for years just so that they can make money. They are not interested in the justice but want to keep their cash cows as long as possible.
The Kings and Queens of the past gave swift justice without charge and punished the guilty so how did they dispense justice quickly and fairly ? They were not lawyers but they depended on their own intuition and were very smart to figure out who was telling a lie and who was not. Sometime a king ordered a case to be reviewed in a few days time while his agents sought new information by seeking witnesses and facts.
Source : Google painting of the execution by elephant in the Court of Akbar in Sikri
In Fatehpur Sikri near Agra where Emperor Jalaluddin Mohammad Akbar established his capital , there is a huge peg of stone where a monstrous elephant was kept tethered. After hearing a case often the king ordered the guilty party to be brought forth to be executed by the elephant that was trained to put its leg on the chest of the culprit. This was swift justice that needed no appeal in lower court , higher court or the supreme court because the king was the law and his order was final.
The justice system now requires large number of jails but it is the tax payer who foots the bill for making the jails and keeping the prisoners there for years while they await a final verdict. The entire penal system has developed into a massive business that some private companies make huge amount of money from. They build massive jails , maintain them, supply the food and clothes for the inmates and maintain security at a high cost to the tax payers while constantly bidding for more contracts to build more jails nationwide.
The law schools in the mean time keep on producing more graduates who become the black robed vultures in the hallways of numerous courts looking for their preys. How did this corrupt system come into being and who was responsible for it?
To understand the entire legal system , you have to go back a few hundred years in our modern day history and find that the legal system that most countries practice had its origin in the United Kingdom of Great Britain that ruled its colonies . The Indian court system was set up by the British so the laws promulgated were just copies of it that were used in the British court system. They set up the courts, enacted the laws , set up the law schools , built massive court buildings and brought the whole colony under their legal system that kept on getting more and more complicated.
To make the legal system very complicated they insisted on paperwork , records and docket system that buried the cases for years under the mountain of paperwork before a a case even came up for hearing. It made people wait endlessly for justice, made them bankrupt feeding the greed of the lawyers and the voracious apetite of the courts for fees and more fees so it made the system inherently corrupt. It was said that the justice delayed was the justice denied but the system became too cumbersome to make any reform although many justices have tried and failed.
To make the matter worse, they introduced the jury system as was practiced in England. The jury system was based on just asking the common people to sit at the court and examine the merits and demerits of any case without any legal training whatsoever and decide as a whole on the verdict that they presented to the judge. No one could excuse himself or herself from the jury duty once summoned by the court so this system still continues today. It was under the reign of Henry’s son, King John, that the first example of the western world’s modern jury system was created. The jury system dates back to the 12th century in England.
History of the jury system:
Source : Google photo of a trial by jury
A jury is a group of persons selected from the community that is charged with hearing a legal case and delivering a verdict on it. Juries are used in both civil and criminal cases, and they base their decisions on testimony and other evidence that is presented at trial. In death penalty cases, they may be charged with imposing a sentence on a criminal defendant.
The concept of the jury system can be traced to Athens, Greece, around 400 B.C. These earliest juries heard arguments in legal cases but did not apply law. According to author John Guinther, quoting Aristotle, juries in Athens instead decided cases based on their “understanding of general justice.” The vast empire of ancient Rome rejected the idea of juries, opting instead for a professional court system in which ordinary citizens had no role. The dark ages that followed the fall of the Roman empire had little use for law, not to mention juries, and the jury system of justice lay dormant until the twelfth century. Around that time, Italian scholars revived the rule of law in Europe with the force of their arguments.
In Great Britain, the jury system was not used until the twelfth century. Prior to that time, the Catholic Church dominated the legal system with its ecclesiastical courts. Judgment and punishment were carried out by the Church through the “ordeal,” a form of torture in which a wide variety of physical pains could be inflicted on an accused criminal.
Random crimes could be resolved with the “hue and cry,” a process in which a person publicly called for a posse to hunt down and thrash a suspected criminal. Civil disputes often were solved by “compurgation,” a method that required each party in the case to bring several friends, or “compurgators,” for verbal support; the party with the most compurgators won the case. In the twelfth century, English monarch Henry II formulated the earliest British version of the jury system when, after a struggle with the Papacy in Rome, he ordered that a group of regular citizens would decide disputes over land in secular courts. However, Henry II also utilized inquisitions and ordeals and the hue and cry remained the foremost system of justice. It was under the reign of Henry’s son, King John, that the first example of the western world’s modern jury system was created.
For Lord Denning it was also “the bulwark of our liberties”. In Ward v James a civil appeal, he stated that “whenever a man is on trial for serious crime, or when in a civil case a man’s honour or integrity is at stake, or when one or other party must be deliberately lying, then trial by jury has no equal.”
Yet, he went on to conclude that in personal injury cases trial by jury had given place to trial by judge alone, because, I quote: “trial by a judge alone is more acceptable to the great majority of people. …judges alone, and not juries, in the great majority of cases, decide whether there is negligence or not. They set the standard of care to be expected of the reasonable man.” In the criminal courts, it is the jury who set the standards of the reasonable man and woman and decide issues of negligence. They decide far more complex issues than simple dishonesty. Is the distinction between criminal and civil trials one of principle or pragmatism? ( Wikipedia )
Bill of rights and Magnacarta:
Magna Carta Libertatum (Medieval Latin for “Great Charter of Freedoms”), commonly called Magna Carta (also Magna Charta; “Great Charter”),[a] is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215.[b] First drafted by Archbishop of Canterbury Stephen Langton to make peace between the unpopular king and a group of rebel barons, it promised the protection of church rights, protection for the barons from illegal imprisonment, access to swift justice, and limitations on feudal payments to the Crown, to be implemented through a council of 25 barons. Neither side stood behind their commitments, and the charter was annulled by Pope Innocent III, leading to the First Barons’ War.
After John’s death, the regency government of his young son, Henry III, reissued the document in 1216, stripped of some of its more radical content, in an unsuccessful bid to build political support for their cause. At the end of the war in 1217, it formed part of the peace treaty agreed at Lambeth, where the document acquired the name Magna Carta, to distinguish it from the smaller Charter of the Forest which was issued at the same time. Short of funds, Henry reissued the charter again in 1225 in exchange for a grant of new taxes. His son, Edward I, repeated the exercise in 1297, this time confirming it as part of England’s statute law. The charter became part of English political life and was typically renewed by each monarch in turn, although as time went by and the fledgling Parliament of England passed new laws, it lost some of its practical significance.
At the end of the 16th century there was an upsurge in interest in Magna Carta. Lawyers and historians at the time believed that there was an ancient English constitution, going back to the days of the Anglo-Saxons, that protected individual English freedoms. They argued that the Norman invasion of 1066 had overthrown these rights, and that Magna Carta had been a popular attempt to restore them, making the charter an essential foundation for the contemporary powers of Parliament and legal principles such as habeas corpus.
Although this historical account was badly flawed, jurists such as Sir Edward Coke used Magna Carta extensively in the early 17th century, arguing against the divine right of kings propounded by the Stuart monarchs. Both James I and his son Charles I attempted to suppress the discussion of Magna Carta, until the issue was curtailed by the English Civil War of the 1640s and the execution of Charles. The political myth of Magna Carta and its protection of ancient personal liberties persisted after the Glorious Revolution of 1688 until well into the 19th century.
It influenced the early American colonists in the Thirteen Colonies and the formation of the United States Constitution, which became the supreme law of the land in the new republic of the United States.[c] Research by Victorian historians showed that the original 1215 charter had concerned the medieval relationship between the monarch and the barons, rather than the rights of ordinary people, but the charter remained a powerful, iconic document, even after almost all of its content was repealed from the statute books in the 19th and 20th centuries.
Magna Carta still forms an important symbol of liberty today, often cited by politicians and campaigners, and is held in great respect by the British and American legal communities, Lord Denning describing it as “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot”.
In the 21st century, four exemplifications of the original 1215 charter remain in existence, two at the British Library, one at Lincoln Castle and one at Salisbury Cathedral. There are also a handful of the subsequent charters in public and private ownership, including copies of the 1297 charter in both the United States and Australia. The original charters were written on parchment sheets using quill pens, in heavily abbreviated medieval Latin, which was the convention for legal documents at that time.
Each was sealed with the royal great seal (made of beeswax and resin sealing wax): very few of the seals have survived. Although scholars refer to the 63 numbered “clauses” of Magna Carta, this is a modern system of numbering, introduced by Sir William Blackstone in 1759; the original charter formed a single, long unbroken text. The four original 1215 charters were displayed together at the British Library for one day, 3 February 2015, to mark the 800th anniversary of Magna Carta. ( Wikipedia)
The bill of rights, the Magnacarta itself and the establishment of courts to hear the criminal as well as civil cases through the judge and the jury system thus became the foundation of the modern day justice system that is now found in most democratic countries. Kings and queens no longer dispense justice although some have powers to forgive a person who suffered the miscarriage of justice . Almost all the heads of states have this power as well that they can use to save the life of a person through their act of clemency who has suffered enough.
Today I would like to focus on what is really wrong with the justice system as practiced in many countries that is under scrutiny because of corruption. Recently a noted criminal in Uttar Pradesh state of India who was responsible for the death of 8 policemen and many more injured in a gun fight fled the crime scene . A massive man hunt was initiated and the fellow was caught a few days later in another state. He tried to escape the policemen who then shot him dead but he had plenty of time to reveal his secrets to the police . He openly bragged that he had many policemen , important politicians and even judges in his pocket who gave him protection from prosecution in exchange for large sums of money. He sounded like a mafia boss that he indeed was.
Frustrated with the corrupt justice system ,many countries have developed a parallel justice system that punishes the guilty with expediency and very little cost to the litigants. In Haiti, they have such a system that is illegal but brings justice to the poor that is far more effective than their court system that is full of corruption.
Similarly in India all villages offer justice through their elected village council that is a legal body to those who seek justice that may usually involve land disputes or water rights but may include cases of rape or domestic violence or inheritance issues.
In Africa many countries have a similar set up in their villages where the village council settles their land dispute or other civil cases but refers the criminal cases to the courts.
Many justices of the Supreme Court in India have tried to reform the criminal justice system but made no headway until now. Now the government of Mr. Modi has begun the process of reform by first abrogating more than 1200 laws that had become obsolete and is determined to abrogate all the old laws of the British Raaj that are still being used. The Parliament makes new laws that address the current situation of the law and order.
Secondly the corruption in the judiciary and among the lawyers is also being tackled and the guilty are being punished but to succeed , the reforms must be deep and longer lasting. Only a corruption free judicial system can dispense justice quickly and fairly so small steps are being taken to overhaul a deeply entrenched system that was left behind by the British colonialists.
Lastly a modern system of computerization of all the laws, cases and important documents are urgently needed to speed up the cases and reduce the immense backlog that chokes the courts everywhere. This will be a major step in the speedy delivery of justice to all who have the misfortune to go to a court for whatever reasons.
A paperless court that has digital records of all cases and the interrogation of a litigant via webcam from any part of the country can reduce the enormous cost of a physical presence in a court room and speed up the judicial process. In the digital world , a jury can be assembled from any part of the country to deliberate on a case through a virtual meeting thus reducing the cost and speed up the process.
In fact all the courts in a country could be interlinked digitally for a referral on a similar case so their verdict and all the pertinent documents can be instantly transmitted. It is a fact that swift money transfers directly to someone working for the government has eliminated the middlemen thus reducing corruption in India but more can be done in the judicial system as well. It is the age of technology that we should all take advantage of. The whole world will be better off if it can be achieved and the guilty can be punished swiftly without resorting to the tethered elephants. One must not forget that the crime rate was very low in those days when people knew what punishment awaited them.
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