Foqia Sadiq Khan writing for The NEWS raises some pertinent issues that require attention. PTH
Winning in lower courts too
Has David won over Goliath? It seems so. The principled, courageous, and vigorous lawyers’ movement for the independence of the judiciary in the last two years seems to have succeeded. The lawyers’ movement has been unique in its moral underpinnings and spirited protests. But does that mean timely justice will be delivered to common people in the lower courts? This is essential as the lack of it in the lower courts has a potential to give rise to religious militancy in Pakistan.
Related to religious militancy is the concern aired by some quarters that lawyers’ movement of late has been co-opted by the religious rightwing parties. Raza Rumi and Asad Sayeed wrote: “Now the secular and revolutionary lawyers are preparing for the second long march, and this time they have an array of allies in the form of various political parties. There is the PML (N) with mass support in Punjab, the rightwing Jamaat-e-Islami, and individuals like former ISI chiefs… There is also the sports star turned politician Imran Khan… A common thread among the political supporters of the lawyers’ movement is a soft corner for the Taliban and a justification for their barbarity in the name of US excesses across the globe and in particular the bombing of civilians on Pakistani territory. Curiously, the consensus among this motley group is the mantra that ‘this is not our war’. One would question how calls for ‘rule of law’ would reconcile with prescriptions of jirgas by Imran Khan and ‘Sharia’ systems of justice by others.” Beena Sarwar expressed similar opinions by emphasising the ‘Jihad International’ (that Pakistani establishment cobbled at the behest of Washington in 1980s) to be “the biggest threat facing Pakistan”.
Fauzia Minullah countered these assertions by pointing out that leftwing parties such as Anjuman Mazarain Pakistan, Awami Party, and others, progressive NGOs, human rights activists, side-lined PPP leaders and minorities leader J Salik to be also siding with the lawyers movement. She also mentioned PPP and ANP’s alliance with Maulana Fazul-ur-Rahman, reopening of Madrassah Fareediya, bartering away of Swat and allied areas for Nizam-i-Adl and appointment of supporter of burying women alive (Zehri) and giver away of young girls to settle dispute (Bijarani) as federal ministers by the PPP government.
Moral and intellectual support for the lawyers’ movement certainly came from left-leaning parties, associations and individuals. However, the numerical strength to flex street power muscle was largely provided by the rightwing parties. Imran Khan has been called “cheerleader of Taliban”, Jamaat-e-Islami is of course a religious party and PML-N has a soft stance on religious extremism. Though such a contradictory alliance is not entirely un-common in recent times. Stop the War Britain, a largely left-leaning peace organisation joined hands with a religious Muslim Council of Britain and others to launch struggle against Iraq war in 2003.
Threats emanating from religious extremism and terrorism cannot be swept under the carpet as battle for independence of superior judiciary has been won in an historic manner by the lawyers movement. A message awaits to be picked up by the implementation of Nizam-i-Adl by Tehreek-e-Nifaz-e-Shariat-e-Mohammadi in Swat. The message is loud and clear: you need to deliver justice at the lower level or else you leave the field open to religious extremists in other parts of the country as well.
There are about 2,000 lower courts for 170 million people in this country. A lower court judge often sitting in cramped room has to “deal” with 200-250 cases per day. As my research with Shahrukh Rafi Khan (for details, see Initiating Devolution for Service Delivery in Pakistan, Oxford University Press, 2007) on lower judiciary shows that the courts are often used by the influentials as an instrument to settle scores. The courts can act very expeditiously when there is vested interest involved. It is usually the influential rather than the poor and victimized who initiate litigation. The judges often become a party to delaying tactics, even to the point of violating the law.
There are inordinate delays in civil and criminal cases that can be obviated through a systematic process review and adjournment motions. Most of the criminal cases end up in acquittal or, due to long delays by the prosecution, eventually as a compromise. Almost half the average expense incurred on litigation is in the form of illegal fees and outright bribes.
Would the lawyers’ movement continue till justice is delivered to common person? Unlikely as lawyers themselves are often involved in delay of justice in the lower courts. Rather than pumping money into arms and ammunition, would the US and Western allies spend money on improving access and dispensation of justice at lower level? There are no signs of it as yet. There has been relatively no public debate on why $350 million Asian Development Bank’s programme failed in Pakistan in the recent past! It is critical that an independent review of the Access to Justice Programme be made public. Our notion is that it failed because its emphasis was management-oriented and technocratic rather than power oriented. Influentials and powerful gain from delayed and denied justice. Pakistan Law Commission reports have made recommendations to improve dispensations of justice since decades. Justice Hamood-ur-Rahman in “The Report of the Law Reform Commission” offered detailed analysis as far back as 1970. Lack of resources to improve physical and human infrastructure of lower judiciary is only one of the constraints, the more important constraint is the lack of political resolve to provide justice. One hopes Iftikhar Mohammad Chaudhry focuses on the meaningful reforms of the lower courts in his present reincarnation as the Chief Justice.
If Davids did not win the battle of providing justice in the lower courts, I doubt if someone would be able to resist another Sufi Mohammad from demanding Nizam-e-Adl through the barrel of gun.