AUTHOR Edward Counsel once said that “the course of justice often prevents it”. In saying so, Counsel was perhaps alluding to the procedural and substantive mechanisms put in place in a legal system which although established to ensure justice could, in fact, impede its course.
Be that as it may, other components of the judicial set-up also play a huge role in influencing the dispensation of justice. If justice is a chariot being pulled by a horse, the bar and bench are two wheels of that very same chariot, each necessary yet dependent on the other for justice to be dispensed.
In deliberating this topic, however, critics often oversimplify the problems afflicting the judiciary by singularly holding the bench, ie the judges, responsible. There is no doubt that the perceived disillusionment and lack of confidence in the judicial process stem partially from the increasing number of litigious parties, the understaffing of the judiciary, and a general inability to cope with a huge backlog.
If justice is a chariot then the bar and bench are its two wheels.
However, what has often been discounted is the role of the legal fraternity in adding to these perceptions. The boycott of court proceedings is a case in point. Newspapers are replete with news of lawyers boycotting proceedings.
Amongst other reasons, lawyers have sought suspension of work on the death of senior lawyers or retired judges at times of national tragedies, such as the APS Peshawar and Bacha Khan University attacks, and other instances which are perceived to directly affect the judiciary.
Although it is essential to acknowledge the legal fraternity’s right to protest, mourn, or express its reservations through lawful means, the rationale behind boycotts as an expression of such a right must be questioned. After all, one can’t help but wonder how boycotting judicial proceedings, or suspending court matters, would be in any way honouring the services of those deceased lawyers or retired judges who had given everything to further the process of justice. In hindsight, it appears to be somewhat counterproductive to commemorate their services to the judicial process by seeking the suspension of the same process.
The same questions would have to be asked with regard to mourning tragedies such as Bacha Khan University and APS Peshawar. In that case, the perpetrators attempted to showcase the helplessness of state institutions, the lawlessness in the country, and the ineffectiveness of the judicial set-up.
By mourning a tragedy by effectively closing the gates of justice to thousands of suffering litigants, the legal community proves them right, not wrong.
Other than this, delays in the dispensation of justice also result when lawyers take up too many cases at any one point, thereby finding it difficult to adequately prepare and assist the judges during the course of hearings. Such a practice is well entrenched amongst a number of lawyers, with many resorting to the same on account of financial constraints.
With each case offering an average professional fee which would barely get them through the month, a significant number of lawyers, out of necessity, are forced to take on greater workloads than they can manage.
This bottleneck results in lawyers being unable to be everywhere for every case all the time. Hence, they seek adjournments, thus retarding an already fractured legal process.
Additionally, such workloads on the back of financial constraints also include a number of frivolous cases, which further aggravates the situation and ends up clogging an already overwhelmed judicial set-up.
The course of justice is also seemingly impeded by the unwillingness of lawyers of stature to join judicial service. Although it is true that the financial benefits of remaining a lawyer with a lucrative practice may far outweigh the perks and privileges of being a judge, the general inability to make the transition from a lawyer to a judge has left the judiciary with a smaller pool from which to make appointments. This results in delays in filling judicial vacancies, and in turn, the dispensation of effective justice to the public at large.
Hence, when discussing the judicial system as a whole, the importance of the legal fraternity can certainly not be disregarded or overlooked. As is clear, the bar has a tremendous influence on the effectiveness of the judicial institution.
However, without the active support of the bar, the path to speedy and accessible justice shall always be slow, painful, and sluggish. With one wheel of the chariot jammed to a halt, and the other moving ahead at full speed, what else can one expect than the course of justice moving in circles for times to come.
The writer is an attorney-at-law practising in Karachi.
Published in Dawn, January 22nd, 2016