Daily Times

Can the current system be relied upon to dispense fair justice to the rightful party? Does the current judiciary satisfy this requirement? The answer is no. The people need to rise up and demand a better, quicker, fairer, and more honest system that helps resolve conflicts without delays and tremendous cost to society and litigants. An effective and efficient judicial system is needed to help people receive justice. Can such a system be designed? Of course, it can. If the politicians and judiciary care about the people and fairness, then they will be willing to implement change. Meanwhile, countries need to develop a process to control the current judicial system. The process can be legislated to modify the legal system to make it transparent and accountable. It is easy to create a transparent system without changing the whole bureaucracy.

Most countries do not keep data on their judiciary, that is, the performance of each court, the judges, and the lawyers. One of the solutions is to collect data on pending cases in each court and its judges, the litigants, and their lawyers. The data should include the filer of the lawsuit, the lawyer of the suit, date filed, the court filed in, the judge assigned to, the type of dispute, and date of disposal. The data will show the performance of each court, each judge, and the lawyers. Without this information, it is hard to determine how effective and efficient the judiciary is.

Accountability can be easily achieved by requiring judges to be elected to a six-year term. This will make them accountable to the public, as they have to explain why they should be re-elected

Judge Jorge Jiménez Martín (2002) has said that “judges must demonstrate impartiality, independence, courtesy, diligence, responsibility, and a constant commitment to public exemplariness that transmits security and confidence in the judiciary to society as a whole. We must awaken in ourselves a special sensitivity to many issues in our daily lives that, in some way, could compromise our jurisdictional function.” He further said that judges must assure that the resolutions are fair and rigorous, but judges do not always know the truth; rather, they should doubt what they hear and listen to others’ opinions, which may provide additional information that may make a difference in the decision. This open mind will help ensure excellent and quality public service. “Judges must commit to independence and impartiality, to service and responsibility, to compliance with ethical principles and the effective realization of the values incorporated in the legal system. The confidence of citizens in judges effectively upholding constitutional principles and rights is what legitimizes us as a judiciary.” However, even with a judge like Martín, changes are still needed.

Heritage.org ranks India’s judiciary at 64.1, stating that it is independent, but lower-level courts are understaffed, lack technology, and are rife with corruption. Most citizens have great difficulty securing justice. Sadly, the judiciaries of other countries are even rank lower, indicating that they are worse than India’s.

One of the major reasons for the judicial problem is that judges enjoy a freedom from structural political constraints due to fixed-term appointment until they reach retirement age. Fixed-term appointments protect the judges from any political, procedural interference. Some consider this independence essential for the judges to make impartial decisions. However, this independence also relieves them of judicial accountability. Therefore, some suggest that independence without accountability could result in their making unfair or partisan decisions contrary to legal justification, hurting the claimant in the process. In the United States, some judges make decisions that do favor an ideology that they may pursue contrary to legal justification. Such decisions may have to be appealed, causing a delay in the court system. However, accountability can be easily achieved by requiring judges to be elected to a six-year term. This will make them accountable to the public, as they have to explain why they should be re-elected.

If nothing can be done, for now, one should follow the suggestions of Rebecca Kourlis (Jan. 2016) to change the rules to make the courts more navigable and effective without sacrificing justice. To be successful, the government must do much more than just changing the rules of civil procedure. It must also change the court culture and profession. Kourlis suggests the following changes, based on the results of a survey of dozens of U.S. state and federal judges by the Institute for the Advancement of the American Legal System at the University of Denver. These participants were asked what changes will ensure just, speedy, and inexpensive courts of tomorrow.

These are the top 10 recommended changes (paraphrased):

1. Law needs to be a civil and collegial profession first. Professionalism is promised but not practiced. That has to change-even within the current economic realities of the profession.

2. The focus of the judicial process must be justice, not on winning at any cost. Lawyers must follow a system that protects procedural fairness and justice. The exploitation of the system should be avoided.

3. Lawyers should emphasize the quality of their cases rather than conduct rote discovery and motions practice and allow ideas to emerge over time.

4. Lawyers should not use abusive discovery costing the litigants and judicial system. The discovery should be used to search for truth and not for gamesmanship.

5. The goal of judges should be to serve and to search for truth and fairness in their decision. Discovery motions should be simple; dispositive motions should be quick; deadlines should be short and specific.

6. The courts need to be accessible and provide fair procedures. Once a case is filed, it must be dealt with fairly and effectively.

7. Cases should be disposed of promptly, fairly, and effectively.

8. The judicial system should be digitized to keep the system efficient, effective, and fair. This allows everyone to access information about the legal system. The system must be user friendly, timely, and accessible to everyone.

9. Lawyers and judges need to fight for appropriate budgets for the courts and fight to defend the courts as long as the public trusts the legal system.

10. The legal system must be geared to operate the system toward fairness and promptness. All the focus should be on the motivations of lawyers, judges, and their activities to achieve these goals. Each action must be aligned with these goals and for the improvement of the system as a whole. So may be court time standards that focus on time to disposition rather than procedural fairness.

The writer is Ph.D. (USA), Professor Emeritus (USA)