Un­ful­filled prom­ise

The Pak Banker - - 4EDITORIAL - Sameer Khosa

IN the af­ter­math of the restora­tion of the chief jus­tice of Pak­istan, there was wide­spread hope that the ju­di­cial sys­tem of the coun­try would im­prove. The in­de­pen­dence of the judges, the fact that stal­warts of the le­gal pro­fes­sion had led the move­ment, and the mass mo­bil­i­sa­tion of peo­ple de­mand­ing con­sti­tu­tion­al­ism, equal­ity be­fore the law and in­de­pen­dence of the ju­di­ciary all led one to be­lieve that a real "rule of law" moment was in the off­ing. Yet, six years af­ter the move­ment started and four years af­ter it cul­mi­nated in the restora­tion of the chief jus­tice, the moment - and the prom­ise it held - has come and gone. The legacy of the lawyers' move­ment is an em­bold­ened ju­di­ciary, un­afraid of the ex­ec­u­tive but not a work­ing jus­tice sys­tem that de­liv­ers for or­di­nary lit­i­gants.

A work­ing jus­tice sys­tem does not sim­ply re­quire an in­de­pen­dent judge. It re­quires a sys­tem that does not thrive on de­lay, one that is not op­pres­sively dif­fi­cult for the weak and vul­ner­a­ble. On both those counts, there has been no im­prove­ment.

The prob­lem of de­lay is nei­ther a new one, nor one that judges are un­aware of. In 2009, the Na­tional Ju­di­cial Pol­icy was an­nounced. It de­clared that cases would be dis­posed off ex­pe­di­tiously. How­ever, the ju­di­ciary has failed to im­ple­ment ba­sic ad­min­is­tra­tive mea­sures that could have a sub­stan­tial ef­fect on this prob­lem.

A lit­i­gant's ba­sic re­quire­ment is to have his lawyer avail­able in court. How­ever, the Supreme Court and the var­i­ous high courts of the coun­try have ab­so­lutely no co­or­di­na­tion with each other. This has the re­sult that var­i­ous courts set cases in­volv­ing the same lawyer in dif­fer­ent cities.

Not only can the lawyer at­tend only one of those cases, this also wastes the court's time in cases in which the lawyer can­not ap­pear. The fact is that one of the most com­monly cited rea­sons for cases to be ad­journed is a lawyer's ab­sence in court. This prob­lem can be avoided through greater co­or­di­na­tion.

Fur­ther­more, courts only re­lease their list of cases on Satur­day evening each week. This means that nei­ther a lawyer, nor a client can ever plan or know for sure about their at­ten­dance in a par­tic­u­lar case, un­til it is re­leased over the week­end.

Fun­nily enough, the Na­tional Ju­di­cial Pol­icy of 2009 ex­plic­itly states that in or­der to re­duce ad­journ­ments, the list of cases should be de­clared at least one month in ad­vance. This would go a long way in en­sur­ing that con­flict­ing cases are not sched­uled on the same date. How­ever all courts in the coun­try have failed to im­ple­ment this.

It is not as if lawyers are with­out blame, even em­i­nent ones. It should be in­ex­cus­able that cases are ad­journed be­cause a lawyer has not had time to pre­pare (co­or­di­na­tion and case lists in ad­vance would solve this too). Ad­journ­ments should only be granted to coun­sel when no­ti­fied in ad­vance. Th­ese mat­ters can be re­solved sim­ply by cor­re­spon­dence in writ­ing (as op­posed to wast­ing the time of the court in which ar­gu­ments can be heard). Fur­ther­more, ad­journ­ments are sought, and granted, to lawyers on med­i­cal grounds with­out the re­quire­ment that med­i­cal ev­i­dence be pro­vided for the pur­pose. While the courts ex­tend great courtesy to mem­bers of the bar in such cir­cum­stances by tak­ing them at their word, the fact is that some lawyers - in­clud­ing em­i­nent and se­nior lawyers - mis­use this trust.

Re­gard­less, if ad­journ­ments are to be dis­cour­aged then each re­quest must be ac­com­pa­nied with proof of the cir­cum­stances ne­ces­si­tat­ing the re­quest. Then of course, there is the com­pletely un­ac­cept­able ten­dency of the black coats to strike. The me­dia and the pun­dits point to the fact that peo­ple look with ex­pec­ta­tion to the Supreme Court and cite it as ev­i­dence that the law is rel­e­vant and we are in a rule of law moment. Yet, the fact that ev­ery­body must look to one court (and not the sys­tem of jus­tice) for re­dress is not ev­i­dence of a work­ing sys­tem.

Quite the con­trary, it is ev­i­dence of a fail­ing sys­tem. If one is lucky enough to get the Supreme Court's at­ten­tion, it will brow­beat the sys­tem into churn­ing its wheels. If not, well one is just not im­por­tant enough.

Con­sider for ex­am­ple, the fact that the Shahzeb mur­der case has to be re­ported daily to the Supreme Court. This is a damn­ing in­dict­ment of the fact that with­out the Supreme Court look­ing over your shoul­der, even a mur­der trial can­not be car­ried out. That is the re­al­ity of the sys­tem. Be­hind the head­lines and away from the spot­light, the en­trenched in­ter­ests still win. De­lays still op­press the weak and the vul­ner­a­ble. Wit­nesses still get brow­beaten, ha­rassed and in­tim­i­dated into re­cant­ing tes­ti­mony. The wit­nesses to Wali Khan Babar's mur­der are dead. Avowed lead­ers of banned out­fits es­cape mur­der charges be­cause wit­nesses are bumped off.

Cases still linger on for years. En­trenched and rich in­ter­ests can still af­ford the big lawyers and brow­beat weaker in­ter­ests into submission. The fact is that amidst the head­lines of the ex­ploits of our ju­di­ciary is hid­den the dirty lit­tle se­cret that for the com­mon man noth­ing, really, has changed. That change would have re­quired real ad­min­is­tra­tive re­form - an ex­er­cise that is far too mun­dane for the head­lines.

We have learnt the im­por­tance of the judge and the lawyer, but not the im­por­tance of hav­ing a sys­tem in which the role of the judge and the lawyer is per­formed eq­ui­tably, ex­pe­di­tiously, and fairly with equal ac­cess to all peo­ple.

The lawyer's move­ment promised rule of law. In­stead it gave us a more prom­i­nent ju­di­ciary, which has thus far failed to ad­dress the sys­temic flaws that pre­vent mean­ing­ful rule of law.

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