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April 29, 2019

Between livelihood and justice


April 29, 2019

What’s more important: rozi (livelihood) or justice? Rozi is all important, certainly more important than abstract and elusive concepts like justice. In some cases, your rozi may be tied to delaying, subverting and denying justice, all in the name of justice. There are no points for guessing that I am talking about Pakistan’s powerful legal community.

This simple fact dictates that no initiative aimed at reforming Pakistan’s dysfunctional justice system can be allowed to succeed, including the most recent and perhaps most revolutionary effort made in recent times through the institution of model courts. Lawyers are up in arms against these courts, set up all over the country by the Supreme Court under the leadership of Honourable Chief Justice Asif Saeed Khosa.

Pakistani courts are sitting on an immense backlog of cases. There are almost 1.9 million cases pending in over 250 lower, special and superior courts. That also means more than 3.8 million fee paying clients available to the ever-growing army of Pakistani lawyers. For litigants, particularly the weaker ones, these never-ending cases are nothing short of a nightmare, bankrupting them financially and destroying their social lives.

For example, Rani, a poor working class woman from Chiniot was acquitted by the Lahore Court in 2017 after spending 19 years in jail on the allegation of murdering her husband. She was arrested as a teenager and released as a middle-aged woman. Her father had already died after spending elven years in prison in the same case.

There are multiple reasons for such a clog in the system. Perhaps the biggest problem is the way lawyers disrupt court proceedings using procedural loopholes. The delay often serves the purpose of the powerful party in the dispute, who has trapped the opponent in the expensive and punishing system. The delay is good for a lawyer as well because the client is a cow that can be milked over years or even decades.

This problem can also be explained by looking at the way many societies interact with their post-colonial justice systems. In countries like Pakistan, most people use the justice system not to have their conflicts resolved but to take the conflict to another level where the might of the state can be used to inflict damage on the opponent through an unfair, expensive and prolonged legal process.

Even the very first step of dealing with the police can bring a poor person to his knees. Put a few months or years of litigation and even a well-off person would lose money and be willing to submit to the dictates of power.

The prolonged judicial process often paves the way for a final out-of-court settlement that is bound to be tilted to the interests of litigants with deeper pockets and more staying power. In this way, the whole judicial system can be seen as an arm to an informal jirga/panchayat system where most cases are resolved.

According to a World Justice Project report, Pakistan ranks at 106 among 113 countries in the category of civil justice system. The conviction rate in Pakistan is less than 10 percent.

This practice inflicts a huge cost on society and economy. Unresolved disputes act as festering wounds in communities, sapping energies, creating potential of further conflict and violence and diverting resources from gainful economic activities.

Judicial inefficiency is not only bad for litigants. It is also bad for economic prosperity, undercutting a nation’s wealth and economic growth. According to Richard Allen Posner, an American jurist and economist: “Markets depend on the establishment of an environment in which legal rights, especially property and contractual rights, are enforced and protected – an environment that is taken for granted in wealthy nations.”

The PTI had promised to launch a judicial reforms programme in the first hundred days of government, aimed at ensuring disposal of all civil cases within one year and clearing the backlog of all pending cases. A publication of the government launched in the fourth month of government ticks the goal as completed and ready to launch under the championship of the federal law minister. Interestingly, a page on the Prime Minister’s Office’s website meant for tracking the hundred-day plan reports that a task force for Civil Law and Criminal Law Reforms has been created while all other milestones are “In Progress”. Interestingly, no progress is reported beyond the auspicious month of October 2018.

The party of justice appears more interested in the witch-hunt of its political opponents rather than ensuring justice to citizens. The chief justice of Pakistan recently regretted that legal reforms are not among the priorities of parliament and observed that the dispensation of justice is a shared responsibility. In this environment of apathy to judicial reforms, some judges have tried to do what they can to improve the situation. We have seen two amazing initiatives recently – both taken by senior judges.

The first initiative was taken by Honourable Justice Mansoor Ali Shah as chief justice of the Lahore High Court. Under his leadership, Alternate Dispute Resolution (ADR) was adopted into the province’s judicial system in 2016-2017 by setting up an elaborate network of ADR centres in all 36 districts of the province. Sensing a threat to their rozi, hundreds of lawyers went on a strike in all districts of Punjab in September 2016. However, the centres have lived on and over the period of two years, more than 14000 cases have been mediated, lessening a substantial burden on courts.

The Supreme Court under Justice Khosa has initiated a much ambitious initiative. In March, the chief justice announced the creation of model courts in every district of the country to conduct daily trials of criminal cases with the aim of providing early justice to the public and reducing the massive backlog of cases.

Elaborate procedure has been laid out to deal with the causes of delay. For example, a trial schedule is provided to lawyers and prosecutors. In case the lawyers are unable to appear before the court on the day of the case, they have to let the model trial court know who will replace them. In order to ensure the timely conclusion of cases, model trial courts do not grant any adjournments.

The lawyers are unhappy with this day-light robbery that can prove a mortal threat to their rozi. Lawyers’ bodies have launched nationwide strikes and protests against these courts. Courts’ proceedings have been forcibly disrupted and bar councils have also suspended licenses of lawyers for appearing before a model court.

Lawyers have reached the apex of their power in Pakistan and their representative bodies are doing everything to maintain the status quo. It is not uncommon for lawyers to disrupt court proceedings, threaten judges and lock them in their chambers. Many judges have even become victims of violence on the hands of lawyers.

Last week, a civil judge was injured in Jaranwala as a lawyer smashed a chair on his head while pleading for ‘relief’ for his father in some case. All such conflicts are amicably resolved to ensure smooth relations between the bench and the bar. Not a single naughty lawyer has faced any punishment beyond temporary suspension of licence. Only the Taliban were able to able make such a mockery of the state in our history.

These amicable relations between the bench and bar were founded by former CJ Chaudhry Iftikhar and his beshumar janesaris. This relationship appears under stress these days. Janesaris loved the dams that Justice Saqib Nisar built but they don’t like the dams that Justice Khosa wants to build. Justice Khosa had stated in his inaugural speech: “”I would also like to… build a dam against undue and unnecessary delays in judicial determination of cases, a dam against frivolous litigation and a dam against fake witnesses and false testimonies and would also try to retire a debt, the debt of pending cases which must be decided at the earliest possible.”

Facing a daunting rebellion from janesaris, as all powerful sections of society and the government look the other way, Justice Khosa may not be able to complete his dams. A few words of praise by the historian may be his only reward.

The writer is an anthropologist and development professional.

Email: [email protected]

Twitter: @zaighamkhan

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