Shades of entitlement

Legal eye
The writer is a lawyer based in Islamabad.
We can agree or disagree with the jurisprudence produced by Justice Jawwad S Khawaja, his reading of the constitution, his approach to the Supreme Court’s suo motu powers, judging in general or courtroom management.
But what we must not do is ignore the deep-seated causes of decay within our justice system that he flagged in his farewell speech as chief justice. No CJ can fix a broken system in three weeks. But he did the next best thing: he candidly admitted that that our justice system has failed the people of Pakistan, and judges, lawyers and our society’s venal value-set are all responsible.
Things in our justice system are actually as bad as the worst critics of our court system and legal fraternity say they are. And as members of the legal fraternity lawyers and judges cannot shirk responsibility for reinforcing the rotten normative behaviour due to which the public doesn’t perceive us as part of a fair and equitable system of justice but instead as a mafia that abets power elites. What is worst is that, despite the recognition that our justice system is now seen as part of the country’s problems and not a means to resolve them, there is no organised drive led by superior courts or bar associations to stem the rot.
Justice Khawaja has alluded to a behavioural environment where fear of attracting displeasure or being judged by one’s kin or peers or powerful vested interests is a factor that influences judicial actions and where elite lawyers wear a badge of entitlement and expect to be granted exceptional treatment merely due to their names being associated with a case – notwithstanding the merit of the case. He alluded to degradation in societal values. We after all are becoming a society that confuses submission with respect, flattery with reverence, hypocrisy with pragmatism, lack of scruples with ambition and sanctimony with virtue.
The present state of the justice system’s disrepair is such that minor tweaking and face uplift won’t do. But painful institutional reform and reconstruction won’t be possible unless we first identify the regressive behaviour that prevents reforms from being instituted. As a member of the legal fraternity one must admit with shame that our self-perception as professionals isn’t burdened with any sense of nobility or need to promote the cause of justice within society. Equally importantly, exceptions notwithstanding, interests of clients trump allegiance to the law or even the truth.
Standing outside courts or sitting in bar rooms we seldom talk about what is right and what is wrong. And even when we do, largely to judge others, the lack of intent to apply high principles and ethics to our professional lives is patent. We view bar associations and the bench as elite clubs, membership of which comes along with a sense of entitlement. A position within the bar creates the prospect of being elevated to the bench. And the urge to be elevated is often driven by the desire to acquire power and personal privilege and not necessarily the aptitude or love for the tedious work the job entails.
Again notwithstanding honourable exceptions, the desire to make it into the elite club is not inspired by the urge to institute reforms within the club once you’re inducted. It is to enjoy the entitlements that membership offers. And as a member of an elite club you probably begin to appreciate the logic of privileges afforded by clubs and thus develop an understanding and tolerance for other elite clubs in the state and the entitlements they afford to their members. And this creates the chicken and egg problem: can one elite club, while guarding its own privilege, force reform upon other elite clubs in the name of justice?
While we can blame shoddy investigation and prosecution for delays and lack of convictions in criminal trials, what about civil disputes? Is their resolution any more efficient or judicious than that of criminal cases? The responsibility of failure to reform the justice system rests first and foremost with the judiciary, not the legislature and not the executive. A judiciary that has zealously guarded (if not expanded) the boundaries of its province in the name of independence can hardly hide behind constitutional separation of powers to blame other pillars of the state for the existence of a moth-eaten court system.
Our constitution since the 18th and 19th amendments vests in the judiciary almost absolute powers to singularly determine its own composition. Article 209 also vests in the judiciary the exclusive power to undertake accountability of judges. While judicial accountability is inexistent, with Article 209 power yet to be exercised in the contemporary era to curb judicial misconduct, the manner in which Article 175-A powers have been exercised to appoint judges in the recent past leaves a lot to be desired.
Article 202 vests in high courts the power to regulate their own practice and procedure as well as that of subordinate courts. The high courts haven’t deemed it necessary to exercise this broad constitutional power to formulate rules to address the problem of inordinate delays in dispensation of justice or abuse of court process by litigating parties or their counsel. There exists a Law and Justice Commission of Pakistan (created under a federal statue in 1979), which functions under the near absolute control of the judiciary.
This commission is endowed with broad power and responsibility to guide the federal and provincial governments on how to improve, modernise and reform the legal system in view of changing societal needs. We have witnessed the promulgation of the 21st Amendment and creation of courts headed by soldiers with the army chief confirming sentences. But we have not heard about the Law and Justice Commission initiating debates about overdue legal and judicial reforms or proposing steps to be taken by the executive and the legislature to afford citizens the access to timely justice.
There exists a National Judicial Policy Making Committee (created under a federal statute in 2002), which comprises all chief justices and functions under the absolute control of the judiciary. The last we heard from this highest judicial policy making forum was in 2009 when it put out the National Judicial Policy. This policy (projected at the time as a major feat) approached judicial reform as a managerial issue and put out unimaginative instructions largely for district judiciaries that were unlikely to be followed and incapable of addressing the problems of consumers of justice in this age even if they were.
What was missing from Justice Khawaja’s speech was any mention of the urgent institutional reconstruction required at the foundational level to begin dispensing justice to ordinary hapless people. What makes this omission noteworthy is that he also informed us that it takes a case 25 years on average to make its way to the Supreme Court and get disposed of. Without such holistic reform at the grassroots level, for how long can a few good men in the Supreme Court equipped with Article 184(3) suo motu powers keep alive society’s hope and faith in the ability of our court system to deliver justice?
Suo motu-style cathartic justice won’t cut it. It is time to go back to the drawing board. The needs of the complex society that we are today are no hidden secret. And the solutions are no rocket science either. But building good systems will need to be preceded by the urge within the judicial leadership to be good and to attract and nurture good men and women to serve the system with integrity and courage. If we want our justice system resurrected, the legal fraternity will need to substitute its penchant for elite clubs and perks with the desire to build a well-oiled no-frills commoners’ institution.
Email: sattar@post.harvard.edu