We were warned

Published April 4, 2024
The writer is an author.
The writer is an author.

PAKISTAN is a judicial jungle, thick with laws, and inhabited by lawyers and judges. Justice lies hidden somewhere in the undergrowth.

Even though all three leaders in the subcontinent — M.A. Jinnah, Jawaharlal Nehru and Sheikh Mujibur Rahman — studied law, the countries they sired are suffering from shared defects: legal inertia, judicial paralysis and civic frustration. Mercifully, they do not have to witness the unedifying sight of pending cases, piled like lost luggage at an inefficient airport.

The Law and Justice Commission of Pakistan released statistics regarding all the cases pending before the Supreme Court of Pakistan, the Federal Shariat Court, all high courts and District Judiciary. They amount to “a staggering 2.26 million cases”.

Over 1.86 million (82 per cent) are at the district level, with the remaining 18pc clogged at the upper tier. New cases filed exceed those resolved, adding every year to the backlog. It is a Sisyphean struggle, with the boulder increasing in size each year.

When can Pakistani, Indian and Bangladeshi litigants expect justice?

In India, the scale goes beyond the margins. It has the largest number of pending court cases in the world. In 2023, the total number of pending cases exceeded 50m. Over 169,000 court cases have been pending for more than 30 years in district and high courts. According to one Indian strategy paper, “it would take more than 324 years to clear the backlog”. Almost as long as the number of years the Mughals ruled the subcontinent.

In Bangladesh, the backlog is 4.2m cases, some pending with the district courts for more than five years.

When can Pakistani, Indian and Bangladeshi litigants expect justice? As one wit observed: “You get justice in the next world; in this world, you have the law.”

In Pakistan, there are 160,000 or so registered lawyers whose duty it is to advise their clients. They show them both sides of the coin, and then pocket the coin. The savant Edmund Burke suggested a higher dimension: “It is not what a lawyer tells me I may do, but what humanity, reason, and justice tell me I ought to do.” That moral loftiness has since subsided into obscurity.

Over the years, the judiciary in Pakistan has undergone changes — some cosmetic, many overdue. Gone is the use of cumbersome wigs that were outdated and inappropriate for colonial climes. Statutes enforced in the name of an absentee sovereign have been replaced by onerous ordinances and leaking laws.

The judiciary has often been described as being the third pillar of the state. It is certainly the leanest. It has always been underfed. In a textbook published by the Federal Judicial Academy, Islamabad (2005), its director general griped that the judiciary was not getting even 1pc of the total budgetary allocation of the federal/ provincial governments. This third pillar of state is tilting dangerously, its foundations eroded by the other two — the legislature and the executive.

The press — some regard it as a fourth pillar — in fact stands outside the constitutional tripod. Today, it is raucously independent. It no longer relies on government handouts. Its solvency is underwritten by lucrative commercial advertising.

Of late, members of the judiciary have been diagnosed with a more dangerous malaise — a crisis of confidence in themselves, and in each other. Many (even judges) turn on one another in a feeding frenzy that in a less civilised society would be akin to cannibalism. They forget the words of the Argentinian novelist Augustina Bazterrica: “Today I’m the butcher; tomorrow I might be the cattle.”

Many years ago, I was dropping my son off for his kindergarten class. From the car ahead of me, his schoolmate emerged, accompanied by a guard sporting a Kalash­nikov rifle. He esc­orted him into their class of six-year-olds. I noticed that the car ahead bore the emblem of a judge of the Pun­jab High Court.

I tackled its occupant. I asked him whether he had gauged the impact his guard’s Kalashnikov would have on the other young pupils in the classroom. Then I asked him that if the law could not safeguard him as a judge, then what protection could I, an unarmed member of the public, expect? He drove off quickly, hurling a less than judicious epithet.

It seems that nowadays an assassin’s bullet is the least of a judge’s worries. He needs to secure himself against microphones and inquisitive cameras installed in his home, some even in the privacy of his bedroom. The bottom has fallen out of our barrel of standards.

In the 1990s, Singapore’s leader Lee Kwan Yew visited Pakistan. On his way out, he was asked his opinion of us. He replied: “I have never seen a country so determined to commit suicide.”

Don’t say we were not warned.

The writer is an author.

www.fsaijazuddin.pk

Published in Dawn, April 4th, 2024

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