By SR Balgopal
“There is a pressing need to impose on all Courts a time limit for delivering judgments in specific cases. In bail cases, this time limit should not exceed two days and in complex civil and criminal cases, 3 months would be reasonable.
We have seen that in the Block 104 case before the Judicial Committee of the Privy Council that the Law Lords heard the case in late October and delivered the judgment on 20th December. Timely justice is not only possible but most desirable…”
The culmination of litigation is the delivery of a judgment by a Court. It is interesting to note that both in the context of the hearing of criminal and civil cases, section 10 of the Constitution provides that the criminal case (section 10(1) of the Constitution) and the civil case (section 10(8) of the Constitution) shall be the subject of a fair hearing within a reasonable time. The relevant sections of our Constitution are reproduced below:
“10 Provisions to secure protection of law
(1) Where any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.
(8) Any court or other authority required or empowered by law to determine the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial, and where proceedings for such a determination are instituted by any person before such a court or other authority, the case shall be given a fair hearing within a reasonable time.”
It cannot be gainsaid that the hearing of a case within a reasonable time would fulfill the legitimate expectations of litigants as the finality of litigation is the judgment. It is unfortunate that our Constitution does not give the explicit right to the litigant to be entitled to a judgment within a reasonable time. Is it often said that justice delayed is justice denied and it would be interesting to have a survey of pending judgments before our Courts to assess to what extent there is a delay in the delivery of judgments in our jurisdiction.
We observe that in the Bail (Amendment) Act 2011, there appears to be a timid message from the legislator to the Courts that bail applications need to be determined within a reasonable time. A new section 3A in our Bail Act will thus provide as follows:
“3 A. Hearing of bail applications
The Court shall endeavour to hear and determine any application for bail within the shortest delay.”
One may contend that in matters of personal liberty the need for celerity is obvious and that this section merely states the obvious. This may well be the case, but it should also be considered that if Courts take over a week to determine bail applications, when our law on bail is well-settled, it unfortunately requires a gentle reminder from the legislator to the judiciary to deliver bail rulings expeditiously. We are of the view that this amendment is a step in the right direction and it should be the prelude to imposing statutory time limits for judgments, it being given that the Courts deliver a service to litigants and, as service providers who are paid out of taxpayers money, there is little justification to make the Courts an exception to the rule that there should be an efficient and timely delivery of service.
Our Code Civil also hints at the duty of Courts to deliver decisions after the case has been heard. Thus article 4 of the Code Civil Mauricien provides that:
“Le juge qui refusera de juger sous prétexte du silence, de l’obscurité ou de l’insuffisance de la loi, pourra être poursuivi comme coupable de déni de justice.”
Article 4 of the Code civil mauricien squarely imposes the duty on the judiciary to determine the cases which are before it according to law but fails to directly impose a time limit to deliver judgment.
This absence of a constitutional right in relation to being entitled to judgment within a reasonable time and the lack of an express provision which allows a litigant to press for his rights when he has not received his judgment within reasonable time is a situation which is most unfortunate.
Administratively, there may be ways and means for the judiciary to regulate itself with regard to the time-limit for delivering judgments but this would be a flawed way of addressing a potential problem of delay in giving judgments as it might give rise to a situation where judicial officers are taking their colleagues to task. A provision in the Constitution which would give an express right to seize the Court to have a judgment in a civil case within 3 months of the close of the case would go a long way towards empowering litigants and enhancing the confidence in the judiciary in Mauritius.
This would also attract investors as corporate entities abhor the idea of wasting time in court and such a provision in our law would comfort them. What needs to be avoided at all costs is the problem of systemic delays which then “forces” corporate entities to resort to arbitration. Whilst arbitration is to be encouraged, it cannot and should not be the only way to obtain speedy justice.
Further, individual litigants and corporate entities clearly do not have the same access to financial resources and it would be a matter of regret if the citizen did not have justice as swiftly delivered as corporate entities. It is for this reason that there is a pressing need to impose on all Courts a time limit for delivering judgments in specific cases. In bail cases, this time limit should not exceed two days and in complex civil and criminal cases, 3 months would be reasonable. We have seen that in the Block 104 case before the Judicial Committee of the Privy Council that the Law Lords heard the case in late October and delivered the judgment on 20th December. Timely justice is not only possible but most desirable.
Litigants must have complete confidence in the results of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgments. It is undeniable that public confidence in the judiciary will be significantly enhanced with the enactment of provisions pertaining to the delivery of judgments within a prescribed delay.
* Published in print edition on 23 December 2011