Back to Basics

[Solomon2]

Back to Basics

Yousuf Nasim | 08 May 12

“The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world.” – Bleak House by Charles Dickens

-Illustration by Faraz Aamer Khan.

If an outside observer were to look into the reasons behind the persistent delays in the court system of Pakistan, he would scarcely know whether to laugh or to cry. I say ‘outside observer’ for the simple reason that actual practitioners of law are too acclimatised to the current state of affairs. Over-exposure has rendered them jaded and thus ill-equipped to appreciate the most fundamental flaws within the system.

Note that in Karachi, the commercial hub, largest city and primary trade route for the country, it is not uncommon for lawyers to advise clients that a simple claim for enforcement of a contract could take up to or over eight years to resolve. This is of course without taking into account the execution stage of the proceedings (at which the decree is effectually enforced) or the stages of appeal. All in all, it can easily take up to 20 years (give or take a decade) for a civil case to be conclusively determined.

This problem cannot be overstated: I have no hesitancy in asserting that there are numerous cases currently pending in Karachi, which would put to shame Dickens’ dystopian portrayal in Bleak House. Yet there persists a myopia which prevents legal practitioners from seeing what is plain before their eyes: that the system is broken. There is, effectively, no access to justice for the vast majority of society. Public confidence in the legal system as a means of resolving disputes is plummeting, and unless drastic measures are taken to arrest this decline, the outcome for our society and our polity will be alarming.

Let’s maintain our focus on the Province of Sindh for a moment. The excuse commonly bandied about to explain the outrageous delays here is: “the huge backlog of cases.” This is of course, no reason at all. “The huge backlog of cases” exists for one simple systemic reason: there are more criminal and civil actions generated within the Province of Sindh than there are Judges to handle them. The solution seems elementary: increase the number of Judges.

Knowing this, it may surprise you to discover that the number of Judges sanctioned for the Province of Sindh has not been enhanced for many years. But more surprising is the fact that the actual number of appointed Judges is one-third of the number actually sanctioned by the Federation. To be precise, 14 Judges (out of a sanctioned strength of about 40) are currently functioning in Sindh. By way of comparison, the High Court of Allahabad in India, has 85 High Court Judges, six times as many as the Province of Sindh.

Reading the above facts you are no doubt alarmed. But you are not nearly as alarmed as you should be. Out of the total of 14 Judges in Sindh, two are posted in Hyderabad, another two in Sukkur, and one in Larkana. That leaves, nine High Court Judges for Karachi. This startling shortfall is further amplified by the fact that the Karachi bench of the High Court of Sindh (unlike the High Court of Lahore for example) has the distinction of serving not only as a court of appeal, but also as a court of first instance for a significant proportion of claims.

The end result is truly frightening: each single Judge or divisional bench in Karachi is scheduled to hear about a 100-odd cases over the course of four hours each day, which (assuming each case is actually heard) equates to two and a half minutes per hearing. By way of reference, this is probably less than the time it will take you to read this short blog entry. In fact, it is about precisely the amount of time it takes for the lawyers to be summoned and the files to be put up before the Judge. Of course, this rarely happens because the vast majority of cases scheduled to be heard are never heard at all. In fact, unless a date and a time is fixed by the court before-hand, the basic presumption is that the cases scheduled to be heard will not proceed. And so, the “huge backlog of cases” grows huger still.

The present situation is completely outrageous and wholly unsustainable. Under the Constitution, the basic responsibility for appointing Judges to the High Court lies with the Judicial Commission of Pakistan, and the name of each member can be found here. This group of people, busy as they may be, need to treat the matter of providing basic judicial services to the wretched litigants of Sindh as one of the highest priority.

If there is some tangible reason why Judges are not being appointed by the Commission, it must come to the forefront – this is a public issue which cannot under any circumstances be swept under the rug. This one small act could do more for the establishment of a system of equity and justice than any number of apex court decisions.

The writer is a lawyer practicing in Karachi.

 

[Developereo]

The whole law enforcement chain in Pakistan is a comedy of errors. The poor few who struggle to do an honest job are swamped by the magnitude of the task and are hampered by political corruption every step of the way.

The corrupt power elite has absolutely no interest in providing a transparent justice system to the masses.

 

[Shardul.....the lion]

If an outside observer were to look into the reasons behind the persistent delays in the court system of Pakistan, he would scarcely know whether to laugh or to cry. I say ‘outside observer’ for the simple reason that actual practitioners of law are too acclimatised to the current state of affairs. Over-exposure has rendered them jaded and thus ill-equipped to appreciate the most fundamental flaws within the system.

Note that in Karachi, the commercial hub, largest city and primary trade route for the country, it is not uncommon for lawyers to advise clients that a simple claim for enforcement of a contract could take up to or over eight years to resolve. This is of course without taking into account the execution stage of the proceedings (at which the decree is effectually enforced) or the stages of appeal. All in all, it can easily take up to 20 years (give or take a decade) for a civil case to be conclusively determined.

Exactly similar conditions exist in India regarding delays in Justice.

If its property matters, than disputes in court can go from one generation to next.

 

[Jango]

It has got alot to do with the investigation department which is in shambles. No evidences given, and no case. As develepereo said, corrupt system, inefficient system.

When a terrorist cannot be tried in court and is let off, because he committed a crime in some place of FATA and there is no evidence or anything, he is let free. There should be a change in laws, catering to the current needs of the Pakistani security apparatus. These people who are caught while fighting or something should be tried by the military, in field courts. Quick decisions.

 

[Solomon2]

These people who are caught while fighting or something should be tried by the military, in field courts. Quick decisions.

And if the military says, "You can either go to prison or work for us as a "stateless" fighter trained to attack India"? Are you O.K. with that? Because in that case the militant will be back on the street sneering at his victims or their surviving relatives - now that he's under Pakmil protection. And you won't be able to do anything about that since you yielded control of the justice system to a military which isn't accountable to democratic representatives!

Come to think of it, how different is this scenario from what is happening now?

 

[Jango]

And if the military says, "You can either go to prison or work for us as a "stateless" fighter trained to attack India"? Are you O.K. with that? Because in that case the militant will be back on the street sneering at his victims or their surviving relatives - now that he's under Pakmil protection. And you won't be able to do anything about that since you yielded control of the justice system to a military which isn't accountable to democratic representatives!

Come to think of it, how different is this scenario from what is happening now?

Where does that scenario come in from?

As of now, no such thing is taking place that a taliban is caught by the army and sent into India or anything.

These people are either produced before courts, killed, or put into programs that try to teach these people some industrial techniques. (there was a thread on this sometimes back as well, carrot and sticks one i think).

THe Indian infiltration thing is not going on at present.

 

[Developereo]

It has got alot to do with the investigation department which is in shambles. No evidences given, and no case. As develepereo said, corrupt system, inefficient system.

When a terrorist cannot be tried in court and is let off, because he committed a crime in some place of FATA and there is no evidence or anything, he is let free. There should be a change in laws, catering to the current needs of the Pakistani security apparatus. These people who are caught while fighting or something should be tried by the military, in field courts. Quick decisions.

It's not just about terrorism; it's the whole justice system at every level.

When a upper middle class teenager gets more in pocket money than the average policeman earns in the same period, when the number of judges lags so far below the needed minimum, when witnesses fear for their life because they have no faith in police protection, then you can't have a functioning justice system.

The most important aspect of a functioning democracy is to have accountability, for, without it, it's all just a sham. This is exactly what we have in Pakistan and what the feudal elite will preserve at all costs.

 

[Jango]

It's not just about terrorism; it's the whole justice system at every level.

When a upper middle class teenager gets more in pocket money than the average policeman earns in the same period, when the number of judges lags so far below the needed minimum, when witnesses fear for their life because they have no faith in police protection, then you can't have a functioning justice system.

The most important aspect of a functioning democracy is to have accountability, for, without it, it's all just a sham. This is exactly what we have in Pakistan and what the feudal elite will preserve at all costs.

ANother thing that seems to be cropping up now, is the interpretation of law according to one's own liking. The PM case is a perfect example. THe government is saying that the SC order is wrong, in essence doing the interpretation by itself. This could evolve over time, and get to something big.

Just today, a police man got beaten up by a lawyers association in a session court. But everybody will go scotch free, and as you said, no accountability for anyones actions

 

[Solomon2]

Just today, a police man got beaten up by a lawyers association in a session court. But everybody will go scotch free, and as you said, no accountability for anyones actions

You're kidding, right? Surely the judge immediately sent the lawyers to jail for contempt?

 

[VCheng]

You're kidding, right? Surely the judge immediately sent the lawyers to jail for contempt?

You really have no idea just how bad things are in Pakistan, do you?

 

[Solomon2]

You really have no idea just how bad things are in Pakistan, do you?

He's not kidding? Linky, please. Note that a society where the court must put up with violence by counsel in the face of the law is, by definition, not civilized.

 

[VCheng]

He's not kidding? Linky, please. Note that a society where the court must put up with violence by counsel in the face of the law is, by definition, not civilized.

Stuff like that won't even make it into the news.

And your definition is correct and applicable, unfortunately. Simple and bitter truth.

 

[Solomon2]

Do Pakistanis really want to re-establish civil law or will they stand aside as remnants of the legal system burn away in flames fueled by corruption, militarism, and religious bigotry? 'Cause right now all I see is #2.

Jinnah, for all his faults, didn't leave Pakistan a bad system of governance. But Pakistan needed dozens of Jinnahs and Liaquats instead of just two. I recall the words of old Benjamin Franklin, emerging from the Constitutional Convention. What kind of government will the United States have? "A republic, if you can keep it."

 

[VCheng]

He's not kidding? Linky, please. Note that a society where the court must put up with violence by counsel in the face of the law is, by definition, not civilized.

Just to give you an idea of just how bad things are for civil society in Pakistan these days:

from: Child dies during loadshedding protest in Multan - geo.tv

MULTAN: A one year old child was killed due to extreme heat as the bus he was traveling in was stuck in a traffic jam.

The traffic jam had been caused by people who had blocked the Lahore road in protest of loadshedding in Multan.

Immediately after the death of the child, protestors cleared the area and the flow of traffic was restored.

Do Pakistanis really want to re-establish civil law or will they stand aside as remnants of the legal system burn away in flames fueled by corruption, militarism, and religious bigotry? '...............

Pakistanis as a people want the same as any other in the world, same as you or I even. But they are crushed down by the unholy troika you mention, and unfortunately I don't see that changing anytime soon.

 

[Solomon2]

Pakistanis as a people want the same as any other in the world, same as you or I even. But they are crushed down by the unholy troika you mention, and unfortunately I don't see that changing anytime soon.

I'm not so sure. There are a lot of charges of "double standards" here. The double standards fallacy fallacy usually indicates a different hierarchy of values between interlocutors.

For example, the convicted violent felon who complains that he shouldn't be in prison because citizens in a free country shouldn't be confined by the government is correct that a double standard exists: a different standard is applied to him than to anyone else. The difference is that there exists a hierarchy of values and his is different from the ethics of the society he lives in - society says such convicts give up their right to freedom and should go to jail.

Similarly, I see Pakistanis want the achievements of a free society but without making the sacrifices themselves to achieve it. This is a sad legacy of colonialism that Pakistan's leaders have done nothing to correct: the Brits established the liberties so many Pakistanis cherish but these have steadily decayed under the assault of "the unholy troika" in the face of public indifference.