JUSTITIA, or Lady Justice, is an allegorical aspirational figure of a woman with scales in one hand and a sword in the other. Her blindfold is a representation that justice in this world is possible only if the decision-maker — the judge — is blind. The fictional Lady Justice, for instance, would not decide a case based on a litigant’s (or their lawyer’s) rank, color, ethnicity, religious or political beliefs, status or wealth. This is not to say that these are necessarily unimportant considerations in every case; they may be important in some cases, such as discrimination suits.

The blindfold, however, manifests an idea of principled neutrality. Lady Justice does not favour anyone merely on the basis of such characteristics. She is not biased. She bestows no undue favours. She judges only on the basis of law and evidence, measured on a scale.

In our courtrooms, however, there is no Justitia. Our courtrooms, like others in the world, are presided over by mortals — ordinary flesh and blood, instead of figures out of Graeco-Roman mythology.

The judges, in our legal system, enjoy wide latitude of discretion. This discretion can prove to be vital, for instance, when deciding the question of maintainability — which has a special significance for writ petitions entertained by high courts. Similarly, for granting preliminary relief, or adjournments, the application of the standards to particular facts, remains within the realm of the deciding judge’s discretion. This, in and of itself, may not be a bad thing. The suggestion here, for instance, is not that the discretion is necessarily employed to render favours to a particular party, or to select lawyers. However, the presence of the discretion entails the possibility that a particular hypothetical judge may exercise this discretion in ways that seemingly favour a particular party or its lawyer.

In our courtrooms, there is no Justitia.

The judges’ discretion may also be manifest in the way hearings are conducted. The judge may hear one side for much longer than the other. Or worse, a lawyer for a party may be interjected to a point where he is unable to effectively make his submissions. Since both sides are presenting the facts and law in light most favourable to their clients, disproportionate time allocated to the two sides may not yield a neutral verdict. Again, the insinuation is not that the justices allow different amount of time to the parties. But, if a particular hypothetical judge were to allocate completely disproportionate time, there is no procedural mechanism (eg a rule that specifies an equal amount of time that must be allowed to both sides, unless agreed otherwise by the parties with the consent of the judge) safeguarding against such practice.

In the absence of procedural mechanisms regulating the way hearings are conducted, or in an apparent superficial application of legal standards for granting a stay or an adjournment, even a benign use of judicial discretion one way or the other may lead to a perception, unfairly, that a particular judge is biased. Our legal system is particularly amenable to being perceived in such a way.

The legal fraternity, reflecting the society at large, is broadly divided into two groups: those who have made it — the successful lawyers — and those who have not. This divide often creates a perception, even if completely unwarranted, that those who have made it are extended a more favourable treatment by the bench than that meted out to the unsuccessful lawyers.

The lawyers-who-have-made-it category comprises advocates with some years of practice under the belt, many with fathers and grandfathers who are or were esteemed lawyers or judges. They inherited a chamber. They went to fancy law schools. They are fluent in English. In this category of successful lawyers, are also a few others. These are lawyers who may have enlisted as conformist, unquestioning foot soldiers of the bar associations, canvassed for their seniors and garnered them votes, called strikes and enforced them, and as the recent events have shown, could reliably be called on to break into hospitals, maiming innocents, if the honour and pride of their legal fraternity so demanded.

If the perception sticks that only successful lawyers can secure the relief sought by the litigant, not only because of their intellect and hard work, but also, at times, by virtue of their or their fathers’ name, then that hurts the whole profession. In such a situation, the only path to success for the new entrant — not from an already successful lawyer family — meanders through either slavishly pandering to his successful senior, or enlisting as a mindless foot soldier in the bar associations.

To rectify any such (even at times unjustified) perception of bias, the judges must be seen to be wearing their blindfold. This can be made possible through creating and enforcing even-handed procedural mechanisms.

The writer is a litigator based in Islamabad.

Published in Dawn, March 4th, 2020