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Unfulfilled promise

March 19, 2013

IN the aftermath of the restoration of the chief justice of Pakistan, there was widespread hope that the judicial system of the country would improve.

The independence of the judges, the fact that stalwarts of the legal profession had led the movement, and the mass mobilisation of people demanding constitutionalism, equality before the law and independence of the judiciary all led one to believe that a real “rule of law” moment was in the offing.

Yet, six years after the movement started and four years after it culminated in the restoration of the chief justice, the moment — and the promise it held — has come and gone. The legacy of the lawyers’ movement is an emboldened judiciary, unafraid of the executive but not a working justice system that delivers for ordinary litigants.

A working justice system does not simply require an independent judge. It requires a system that does not thrive on delay, one that is not oppressively difficult for the weak and vulnerable. On both those counts, there has been no improvement.

The problem of delay is neither a new one, nor one that judges are unaware of. In 2009, the National Judicial Policy was announced. It declared that cases would be disposed off expeditiously. However, the judiciary has failed to implement basic administrative measures that could have a substantial effect on this problem.

A litigant’s basic requirement is to have his lawyer available in court. However, the Supreme Court and the various high courts of the country have absolutely no coordination with each other. This has the result that various courts set cases involving the same lawyer in different cities.

Not only can the lawyer attend only one of those cases, this also wastes the court’s time in cases in which the lawyer cannot appear. The fact is that one of the most commonly cited reasons for cases to be adjourned is a lawyer’s absence in court. This problem can be avoided through greater coordination.

Furthermore, courts only release their list of cases on Saturday evening each week. This means that neither a lawyer, nor a client can ever plan or know for sure about their attendance in a particular case, until it is released over the weekend.

Funnily enough, the National Judicial Policy of 2009 explicitly states that in order to reduce adjournments, the list of cases should be declared at least one month in advance. This would go a long way in ensuring that conflicting cases are not scheduled on the same date. However all courts in the country have failed to implement this.

It is not as if lawyers are without blame, even eminent ones. It should be inexcusable that cases are adjourned because a lawyer has not had time to prepare (coordination and case lists in advance would solve this too). Adjournments should only be granted to counsel when notified in advance.

These matters can be resolved simply by correspondence in writing (as opposed to wasting the time of the court in which arguments can be heard). Furthermore, adjournments are sought, and granted, to lawyers on medical grounds without the requirement that medical evidence be provided for the purpose.

While the courts extend great courtesy to members of the bar in such circumstances by taking them at their word, the fact is that some lawyers — including eminent and senior lawyers — misuse this trust.

Regardless, if adjournments are to be discouraged then each request must be accompanied with proof of the circumstances necessitating the request. Then of course, there is the completely unacceptable tendency of the black coats to strike.

The media and the pundits point to the fact that people look with expectation to the Supreme Court and cite it as evidence that the law is relevant and we are in a rule of law moment. Yet, the fact that everybody must look to one court (and not the system of justice) for redress is not evidence of a working system.

Quite the contrary, it is evidence of a failing system. If one is lucky enough to get the Supreme Court’s attention, it will browbeat the system into churning its wheels. If not, well one is just not important enough.

Consider for example, the fact that the Shahzeb murder case has to be reported daily to the Supreme Court. This is a damning indictment of the fact that without the Supreme Court looking over your shoulder, even a murder trial cannot be carried out.

That is the reality of the system. Behind the headlines and away from the spotlight, the entrenched interests still win. Delays still oppress the weak and the vulnerable. Witnesses still get browbeaten, harassed and intimidated into recanting testimony. The witnesses to Wali Khan Babar’s murder are dead. Avowed leaders of banned outfits escape murder charges because witnesses are bumped off.

Cases still linger on for years. Entrenched and rich interests can still afford the big lawyers and browbeat weaker interests into submission. The fact is that amidst the headlines of the exploits of our judiciary is hidden the dirty little secret that for the common man nothing, really, has changed. That change would have required real administrative reform — an exercise that is far too mundane for the headlines.

We have learnt the importance of the judge and the lawyer, but not the importance of having a system in which the role of the judge and the lawyer is performed equitably, expeditiously, and fairly with equal access to all people.

The lawyer’s movement promised rule of law. Instead it gave us a more prominent judiciary, which has thus far failed to address the systemic flaws that prevent meaningful rule of law.

The writer is a lawyer.