Cover Story: Judiciary in the Dock
All this notwithstanding, however, there are other reforms that, if implemented, could significantly reduce the burden on the courts. As mentioned earlier, many of the cases do not merit being in the courts in the first place. If outside-court mechanisms were in place to handle such cases, or even if the judges used their powers to penalise lawyers for bringing them in, it would ease the burden of the courts. According to Siddique, around 10-15% of cases in the courts pertain to rent disputes, which have no constitutional or human rights dimension to them. Out-of-court authorities, he believes, could easily settle these disputes. When Khawaja Naveed served as the High Court judge in Sindh, he created a formula for dealing with rent disputes. In residential cases he gave the tenants a year to vacate the premises so that they had time to raise funds for a new lease, thereby ensuring that tenants’ childrens’ academic year would not be disrupted by an overnight shift of residence.
Meanwhile, according to this formula, the rights of the landlord were also protected: the rent controller would issue a writ of possession without notice to the tenant on the date of default. This also included monthly rent and utility payments and assistance from the police in vacating the premises. For business-related rent disputes, Naveed gave the tenants two years to vacate, so that they had sufficient time to mobilise and raise capital. Through the use of such formulas, he disposed of 350 constitutional petitions of rent within four months, and people even joked that he had emptied the entire rent branch. His actions did invite some criticism and Naveed quotes a young lawyer who said, “Khawaja Sahib nay rent law tabah kar dia hai (Khwaja sahib has destroyed the rent law).”
Had the formulas devised by Naveed been objectionable to the law, the litigants could have appealed to the Supreme Court, but none did.
Another area of reforms that requires serious attention is in regard to the introduction and strengthening of alternate dispute resolution (ADR) mechanisms.
“We are very wary of jirgas, and often rightly so. But there are other dispute resolution systems such as market committees, mohalla committees, biradiris etc. which we can’t just cast aside because we see them as problematic. We really need to explore where, under certain regulations, they could be used to resolve certain kinds of disputes,” maintains Siddique. Along with his students at LUMS, Siddique conducted a survey in the Lahore High Courts in which he interviewed around 440 litigants. Many of them lived in nearby villages and after legal fees and transport expenses, they couldn’t even afford the subsidised food at the court canteen or the five rupee surcharge for using the restroom facilities. Keeping this subset of impoverished, uneducated Pakistanis in mind, Siddique believes that a regulated jirga or ‘Lok Idalat system,’ which is practiced in India, albeit to mixed reviews, would not only serve speedier justice, but also save the people money and time.
Naveed however, is sceptical of such reform systems. “If these jirgas were of educated people, we would call them arbitration. Arbitration is a good thing since it saves both money and time. But over here, because of lack of education, the jirgas’ decisions are appalling. If a man assaults someone’s daughter, the jirga will order four men to assault his – these kinds of decisions are very common.”
Siddique acknowledges this problem and is very clear that the jirga or panchayats’ judgments should not contradict the basic laws and rights provided to the citizens and they would be allowed to only handle certain kinds of disputes. And he believes that even if the jirgas or other grassroot level modes of dispute resolution are reformed, the courts should still be responsible for cases that carry a human rights or constitutional angle.
“These methods of local dispute resolutions already exist, the least one could do is study them to see if they could be salvaged,” says Dr Siddique. However, the fact is that even if they are salvaged, the other problem that would emerge is that these jirgas lack executionary powers. So while the formal legal system has the police and other state machinery to help enforce its orders, the jirgas must resort to the feudal lord’s henchmen to enforce their judgments.
In any case, the likelihood of regulating local forms of dispute resolution is slim. If the legal community has failed to reform the judiciary in 65 years, there is little hope that they have the resources, or even the desire, to regulate external systems.
What is more disturbing, however, is the fact that the legal community – from the Supreme Court to the lower levels – seems to be too busy to engage in discourse about what reforms should be applied to the country’s formal judiciary and how the backlog of cases can be solved.
The lawyers are busy physically attacking reporters, judges or anybody who they perceive as the enemy. They are busy showering rose petals on murderers, as was witnessed in the high-profile Salmaan Taseer assassination case. They are busy going on strikes, even if it means the bail hearing of Rimsha, a Christian child accused of blasphemy, has to be adjourned.
And the justices are even busier. They are busy issuing suo moto notices against actresses for carrying liquor, or ensuring that ‘innocent’ people like Arsalan Iftikhar, son of the Chief Justice of Pakistan, are delivered speedy justice.
And until the legal community frees itself of all these concerns and finally tires of ‘vukla gardi,’ (judicial mob activism), maybe then, they will start thinking about how these 1.6 million pending cases, which are increasing by the day, can be resolved.
Justice Delayed is Justice Denied.
On December 17 1988, 18-year-old Mirza Tahir Hussain, a British Pakistani, killed a taxi-driver, Jamshed Khan, in Rawalpindi while allegedly trying to protect himself from sexual assault. Nine months later, after the police allegedly tortured him into confessing, the Session Court found him guilty and sentenced him to death. He appealed the judgment and the case went to the High Court, which revoked the death sentence due to discrepancies in the evidence and ordered a retrial. The case returned to the lower court where he was deemed guilty once again and sentenced to life imprisonment. Hussain once again appealed to the High Court, which acquitted him. By then he had already spent eight years in captivity.
Barely a week after his acquittal, a Federal Shariat Court decided to take up the case since Hussain was also accused of robbing the dead driver and robberies with murder came under the jurisdiction of the Shariat Courts. In 1998, he was found guilty yet again, even though the prosecution failed to provide witnesses in court.
After a total of 18 years in prison, multiple stayed executions and several pleas from human rights activists, Hussain was finally released in 2006. Having spent half his life in prison, Hussain required extensive counselling to help him adjust to life as a free man.
Had Hussain not been a dual (British-Pakistani) national, international organisations may not have petitioned for his release and international agencies such as Amnesty International may not have repeatedly highlighted how the case was jeopardised from the start since the police influenced the witnesses and tampered with evidence. Prince Charles certainly would not have made a clemency plea to then President Musharraf on his behalf and, in all likelihood, Hussain would have been dead by now.
Not all are convinced of Hussain’s innocence though. Khan’s family believes Hussain did not act in self-defence and in a 2006 interview with Newsline, pointed out contradictions in his testimonies. But regardless of how this case is viewed, whether Hussain was guilty or innocent, the constant retrials and questionable judgements are a glaring example of how our judicial system has failed us. – Zehra Nabi
Waiting For Justice…
Two years ago, 16-year-old Uzma Ayub was kidnapped from her home in Peshawar and repeatedly gang-raped. Nearly a year after her disappearance, the young woman managed to escape her tormentors and worked up the courage to file a case against them. Now the mother of a baby girl –a result of the repeated sexual assaults – Uzma awaits justice that seems perpetually out of reach. Despite the murder of her brother, Alamzeb, just as he left Takht Nusrati Court after a hearing, despite being subjected to a lie detector and DNA test –the results of which remain ‘inconclusive’ for inexplicable reasons, despite the disposal of the suo moto notice taken by the Peshawar High Court due to ‘lack of evidence’ – and despite threats from the police deployed for her protection, Uzma remains resilient, even while her case bounces from court to court, with no end to her pain in sight. – Maheen Irfan Ghani
Law and Disorder
Nearly three years ago, Mohammad Imran was murdered in Malir town. The murder was allegedly committed by an acquaintance of the victim (who also happens to be a police constable in Malir), Mohammad Rafiq. The victim’s family (a brother-in-law named Shafqat, and a young sister, a young cousin, and an aunt) spoke to Newsline as they waited for yet another hearing at the Sindh High Court.
According to Shafqat, it took nine months for police investigators to submit the alleged murder weapon – a pistol – as evidence, and that too only after the district judge issued an order to the effect. Furthermore, he disclosed, the pistol bore no fingerprints. Then, at several previous hearings, either the defendant’s lawyer or their own lawyer did not show up, and it was at one of these hearings, despite the absence of the plaintiff’s lawyer, that the district judge presiding over the case demanded that Shafqat present his testimony in court. This, against the backdrop of alleged ongoing harassment of Shafqat and his family members by the accused’s police colleagues. Despite the mounting legal fees and endless fruitless trips to the court, Shafqat and his family remain determined to see the alleged killer brought to justice. The question is: Can their resilience outweigh the power of the police? – M.I.G
Overtime on Inside Time
In January 2007, the Sindh High Court directed the provincial government to compensate a prisoner for detaining him in jail for an additional month after his jail term expired. The judge decreed that the prisoner, Abdul Hakeem, should be given Rs 5000 for each day he was unnecessarily and illegally confined.
Hakeem’s trial had already been delayed several times because the authorities failed to produce him in court. The court had previously declared that imprisonment is considered illegal if an under-trial prisoner is not produced in court on the day his hearing is fixed. The failure of the police to bring him forward and to then delay his release not only speaks of their negligence in complying with the courts, but also shows how the state authorities themselves seem to disobey the orders of the court.
The Sindh High Court judge took suo moto notice of the instance and ordered the provincial authorities to pay the prisoner at his next hearing. Whether the police finally brought Hakeem to court or paid him the amount determined by the judges is a mystery, since such low-profile cases are often overshadowed in the media by high-profile cases involving powerful politicians and the like.
But Hakeem’s case is not at all unusual. Just the year before, in 2006, the Sindh High Court ordered the central prison superintendent and the home department to pay a detainee Niaz Mohammad Rs 420,000 for illegally holding him in jail for nearly three months. According to Mohammad’s lawyer, he was arrested without a detention order and the judges on the Sindh High Court bench noted that it was a matter of shame that a man was detained without ever being produced in court.
Thousands of prisoners languish in jails across Pakistan without the benefit of trials, or even detention orders. In such circumstances it makes sense, then, when they say the law is an ass. –Z.N
This article was published in the October issue as the cover story under the headline “Judiciary in the Dock.
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