Monday, September 27, 2010

Justice denied and delayed By Irfan Husain

ON and off, readers have written to suggest that I do a column on how the higher judiciary in Pakistan is so preoccupied with cases of a political and constitutional nature that it has little time for meaningful reforms in the lower courts.

As the Supreme Court struggles valiantly to deal with such knotty issues as Musharraf’s controversial National Reconciliation Ordinance and the 18th Amendment, its backlog of pending cases has grown to 17,500. But compared to the provincial high courts, where some 150,000 cases are awaiting judgment, it is a model of efficiency. Going down to the lower courts, a recent news item in this paper informed us that some 1.1 million cases are clogging the system.

One reason the Taliban takeover of Swat last year was initially welcomed by many locals was that they promised to provide swift justice. Even though this turned into a nightmare of public flogging and executions, the fact is that millions of Pakistanis caught up in the legal system would even put up with ignorant clerics on the bench if they could just get a quick decision.

In the UK, the country that bequeathed Pakistan the system we suffer under, cases are decided fairly quickly once they are admitted for hearing. So how come we have made such a mess of things? One reason is that for every litigant who wants a quick decision, there is another who wants to slow the proceedings down to snail’s pace.

An old lawyer friend recounted his experience with one case. He had been flying into Karachi from Lahore so often for court hearings in this particular case that he decided to rent a flat to avoid staying in a hotel on each trip. When I asked him why he had to visit Karachi so often, he said the high court judge on the bench had such a heavy case-load every day that his particular case almost invariably got put off each time. So he would take a book and read at the back of the courtroom — if the case did come up for hearing and he wasn’t present, he could get charged with contempt. This went on for years, and of course, the cost was passed on to the client.

Now multiply this case by the hundreds of courts across the country, and you will begin to get an idea of what hundreds of thousands of litigants go through for years. Of course, many benefit by these endless delays: those with a weak case and deep pockets keep spending money to block a decision. Those with a good case suffer the inconvenience and expense of unending litigation.

A few years ago, the Asian Development Bank lent Pakistan $20mn to finance judicial reforms. The stated aim of the project, called Access to Justice, was to “contribute to poverty reduction and good governance through improved rule of law”. Part of the loan went towards the computerisation of the higher courts, and no doubt a sizeable chunk went to the inevitable consultants, transport and study tours abroad. One project goal was to produce “greater efficiency, timeliness and effectiveness in judicial and police services”. I hope the Pakistani taxpayer will consider the $20mn as money well spent as he repays this loan.

I wonder if our fiercely independent chief justice has any time to spare from his judicial activism to look into the huge backlog of cases that has built up over the years, and the impact it has on our society and our economy. It is certainly true that our media is fascinated with the comings and goings of politicians and bureaucrats who are constantly summoned before the higher judiciary in high-profile cases involving the government. In addition, suo motu cases that put the state under much-needed scrutiny make equally thrilling courtroom drama.

What is not very exciting is the nitty-gritty of working out targets for judges to reduce their backlog, and clean up the corruption endemic in the system. After all, thousands of lawyers make a living from the same venality and inefficiency they have been dealing with – and profiting from – over the decades. Changing the status quo is hard work, especially when so many are benefiting from it.

So while our legal fraternity was at the vanguard of calls for the restoration of the chief justice three years ago, it’s not exactly storming the capital to demand judicial reforms that would make life easier for their clients. And yet, this one issue goes to the heart of our failing society. If we could somehow fix our courts, so many other things might fall into place.

Among other problems, there are far too many lawyers in Pakistan. Many people I know have earned law degrees for want of something better to do. It used to be possible to take the LLB degree privately without actually having to go to law school. And anyone with this qualification can set up shop as a lawyer. Of course he doesn’t command the kind of fees our legal superstars do, but he can still issue legal notices.

So far, none of my lawyer friends have been able to satisfactorily explain why judges tolerate these delays. Why can’t the court clerk be instructed to keep the list of cases manageably short? Why are feeble excuses from lawyers about illness accepted, especially when the same lawyers then appear before another bench? Fake medical certificates are routinely used to support absences. Court clerks are bribed to put a case at the top or the bottom of the list of cases to be heard. All judges are aware of these realities, but choose to ignore them.

The truth is that the desire for change has to come from the top of the judicial pyramid. Unfortunately, despite the independence the higher judiciary now enjoys, it has chosen to use this authority to wrest power from the executive and from the legislative branches.

It is certainly true that judicial activism is a welcome new phenomenon in a country where judges have normally accepted dictation from the executive, especially when a general is running the show. However, this newfound judicial independence needs to be judiciously used. Long-term legal reforms would provide the chief justice with an enduring legacy.

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