A system of delays

Published May 24, 2021
The writer is a lawyer.
The writer is a lawyer.

WE are all fed up with delays in the judicial system. And as any lawyer who actively practises can tell you, the first thing someone will say upon finding out that you are a lawyer is that the judicial system is pitifully inefficient and cumbersome. The lawyer will usually admit this, but shift the blame onto the other actors in this delicate dance of delays.

In order to understand why they do this, you would have to understand the persona that is this lawyer. Lawyers tend to wear their uniform more like a badge of identity as opposed to a casualty of their profession. It is like their personality starts at the black coat and ends at the tip of their black tie. Even their cars and motorcycles feel the need to exclaim who is so eloquently riding them day in and day out.

As such, there is a great deal of pride, perhaps misplaced to some extent, in dealing with people as a representative of the said community and that of the system that produced them. They consider the problems of the judiciary as those which are essentially of someone else’s making, and that they are at the vanguard of the struggle to course correct.

The problem lies in the interests and capacities of the various players that drive the judicial set-up.

People would perhaps be gullible enough to defer to such a sentiment had they not seen this dance before. Was not the lawyers’ movement all about change in the system as opposed to merely the restoration of a chief justice many in the bar disliked in any case? Was not the National Judicial Policy supposed to be an attempt to better a system which typically afforded justice not to the claimants, but the children of the children of such claimants? Have chief justices not acknowledged incessantly the need for changes to better the delivery of justice without any real and substantive changes actually taking place? The answer to all these questions is yes, and the sum of all these zeros is still a zero.

The reasons for this are multifaceted. The issue with the current judicial set-up is not that the system is evil in and of itself, but the problem rather lies in the interests and capacities of the various players that drive this set-up.

For example, lawyers usually take their professional fees in lump sum and at the beginning of engagements. It doesn’t matter whether the case lasts for a day, a month, a year or a decade; the lawyer is straddled with the brief till its conclusion or his own. This is coupled with a competitive market in which the client wants more for less and considers ‘intangible services’ such as legal services to be a source of unlimited bargaining, so much so that the lawyer has to insist on taking his fee in advance for the fear of never seeing it at all.

In such a structure, the lawyer has to consistently take on more and more cases to ensure a certain level of monthly income to sustain his household. This in turn results in each lawyer having multiple cases fixed in court each day, with the only solution being that he manages his daily workload by adjourning some matters and proceeding with others.

Now the solution to this may well be to increase the professional fee per case, thereby taking away the need for the lawyer to become an ambulance chaser seeking to continuously augment his income. But this brings us to our next player, that is, the client.

The client wants everything. And I mean everything. He wants the best lawyers, the swiftest of reliefs, the most convenient of experiences, and he wants this all at the same price as you would buy a toaster from a supermarket. As a result, in feeling justified in compelling a lawyer to take on more cases for lesser fees, the client unwittingly encourages the lawyer’s need for bulk, and in doing so, contributes directly to the very reason that many cases, including his own, are not proceeding in court.

Furthermore, ironically, the interests of many clients may not even be in bringing the case to conclusion, but merely in having it drag on until the other side simply gives up, or even better, expires during pendency. In doing so, the client furthers his own stake in the system of delays he so emphatically calls out in the comfort of his own home.

Judges, on the other hand, are also a part of the system that perpetuates delays. This is not to say that they intentionally cause it, but that the system leaves them with little choice. Effectively, put a roster or docket of over 40 to 50 cases before anyone on a daily basis, and let us see if they can conclude all those matters within a span of four and a half hours on any given day. It’s just not possible. Judges who are freshly inducted do not perhaps appreciate this enough, which is why they start their judicial career with the aim to deliver justice at the speed of light, only to eventually realise that the bureaucracy of the system is such that on any given day, they would be lucky to dispose of one to two matters on merit.

As such, with a docket of so many cases, judges will either be more receptive to requests for adjournments or simply not have the time to proceed even if all parties are ready. Hence the joke amongst lawyers that on any given day, it does not matter if the parties are ready if the judge is not.

In conclusion, if you want to change the system, you will have to change the stakes and interests of each of its players. Attempting or promising grandiose changes without context results in as significant a change as we have witnessed in Naya Pakistan, where old wine (or honey) in new bottles is sold for a dime a dozen.

The writer is a lawyer.

basil.nabi@gmail.com

Twitter: basilnabi

Published in Dawn, May 24th, 2021

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