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Boycotting justice?

Updated April 07, 2019

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The writer is a Karachi-based lawyer.
The writer is a Karachi-based lawyer.

ON March 28,, lawyers surrounded the entrances of the Sindh High Court in Karachi as well as those of subordinate courts, restricting the public’s and other lawyers’ access.

The protest was to ‘seek justice for the common people’, and to undo some decisions taken by the National Judicial (Policy Making) Committee (NJPMC) regarding Section 22-A and Section 22-B of the Code of Criminal Procedure.

Sections 22-A and 22-B dealt with, amongst other things, the right of a citizen to approach the ex-officio justice of the peace for directions to register an FIR if the police had refused to do so. The NJPMC directed that no petition should be entertained by a ex-officio justice of the peace if a prior complaint had not been made to and decided by the superintendent of police complaints.

As per the lawyers, there were two fundamental issues with this. Firstly, the NJPMC, being a policy-related committee, with no legislative or judicial powers, could not change the law. Such instructions would serve to undermine the independence of the judiciary and also be violative of the separation of powers.

Secondly, it was argued, by adding another layer of police ineptness to the process, citizens would be further harassed by a non-cooperative SHO and SP complaints who would either be slow in giving his decision, or not render it at all. There was also the element of bribery, and how the additional requirement would in fact make access to justice even more costly, as opposed to less.

Even if justified in their protest, the lawyers were certainly not justified in the manner in which they protested.

The lawyers, it seems, were partly justified. It is true that the NJPMC has no legislative or judicial mandate to make a complaint to and decision by the SP complaints a precondition for any petition under Section 22-A. However, the Supreme Court in 2016 had already defined the parameters within which a Section 22-A petition could be entertained. Interestingly, the Supreme Court had held that the relevant ex-officio justice of the peace would be required to satisfy himself/herself as to whether the petitioner had in fact approached, and given a written complaint to, the SHO, as well as other superiors in the police hierarchy, prior to petitioning the court under Section 22-A.

So in essence, the Supreme Court had already partially directed a precondition of sorts to be read into the law. However, the difference between the two was that the NJPMC requires a ‘decision’ to be made by the SP complaints prior to entertaining a petition under Section 22-A, whereas the Supreme Court had held that attempts to approach the said forums in good faith, irrespective of whether or not a decision was taken by the higher police officials, would suffice. Hence, it appears that the NJPMC’s instructions requiring a ‘decision’ by the SP complaints prior to filing a Section 22-A petition is beyond the mandate of the policymaking body as well as the directions of the Supreme Court.

The lawyers also appeared justified in pointing out that the additional layer of bureaucracy would only prolong the anguish of the litigant. After all, the pivotal nature of the role of the ex-officio justice of the peace under Section 22-A is on account of the delays, corruption and unresponsiveness of the police system. By adding more police bureaucracy, the public’s confidence in the system would erode further.

But even if justified in their protest, the lawyers were certainly not justified in the manner in which they protested. The modus operandi of protest should have been such that it would not impinge upon the fundamental rights of others, and it should have sent out a message in keeping with the objective of the protest.

In fact, the protests in question appeared to violate the rights of the citizens as well as fellow lawyers. The right of the lawyers’ community to register its protest cannot infringe on a litigant’s access to justice or his right to a fair trial, just as the bar’s right to protest cannot eclipse the lawyer’s right to discharge his professional duties. However, in both cases, they seem to be doing so.

Further, while claiming to champion the rights of the litigants, and cloaking themselves as the guardians of their interest, the lawyers appeared to contradict this principled stance by resorting to boycotting the courts and restraining other lawyers from attending the proceedings. The disconnect between objective and action was stark, and just about as rational as a lawyer believing that he was protecting the public’s right to justice by blocking their very access to it.

In no way would such a protest help the litigants, nor would it lend credence to the struggle being undertaken by the lawyers. If anything, it would show the lawyers as self-serving professionals who tend to serve their own interests in the garb of a larger interest.

Leaving aside the litigants, even on its own, forcing lawyers out of courts, or ensuring that they cannot enter the court premises, results in cracks within the bar itself. Although such strikes and protests can be maintained in the short term, longer bouts will result in sharper voices of dissent, until eventually, a clear division in the ranks appears. Even as we speak, voices of dissent can be heard regarding the manner of protests being encouraged by bar representatives.

In a nutshell, although one can understand the lawyers’ community’s need to register their protest, seeking out justice by boycotting it does not stand to reason.

The lawyers’ movement had certainly created a sense of empowerment for the bar, and also posited positive change. However, if there is one aspect of the lawyers’ movement which requires reconsideration, it would be the growing tendency to boycott court proceedings in the attempt to ‘further’ justice. No matter how we look at it, fighting for justice by paralysing the very courts that are there to deliver it, is tantamount to cutting off the nose to spite the face.

The writer is a Karachi-based lawyer.

basil.malik@rmaco.com.pk

Twitter: @basilnabi

Published in Dawn, April 7th, 2019


The original article has been revised to replace the word 'magistrate' with ex-officio justice of the peace.