- Of Law and Order
“This is a court of law, not a court of justice”—–Oliver Wendell Holmes, famous American jurist, in a comment on the US Supreme Court (circa early 20th century)
The above quote sums up all of what is wrong with all courts established under the British Common Law tradition, throughout the Old Brit Empire and now the so called Commonwealth nations. Consider the following:
The laws which this country inherited from the departing colonial rulers have remained largely unchanged in the last seventy-three years. The major civil, criminal, and evidentiary laws have been tweaked from time to time, but no major legislations have occurred. Whenever under pressure from external forces we have legislated, it has always been Special Laws, administered by Special Courts. This is true of laws relating to anti-corruption, terrorism, financial offences, revenue matters and what have you. It is a settled principle of Jurisprudence that all Special Laws are bad law, and all Special Courts are Kangaroo Courts. Civilized countries which believe in the ‘due process’ strengthen their entire court system in such manner as to handle the whole gambit of law enforcement in a unitary manner.
We do not have a Judicial Service. Junior judges, who are recruited by the higher courts, have different training iterations depending upon the policy of the Provincial High Courts. Some of these direct entrants reach the status of Sessions Judge in around twenty five years of service which is end of the line for them because judges of the High Courts are appointed out of practicing lawyers, with very few exceptions. Disgusted with the lack of future promotions, many senior district judges seek early retirement and go into private practice.
High Court judges are appointed under a totally opaque method which has no transparency, nor accountability to the people of Pakistan, who pay their salaries and for their considerable perks. There is no formal training, no performance audit, and no oversight for corrupt practices, apparently no internal rule-of –law either. It is the ‘Old Boy’s Network’ at its very worst.
Therefore, a very strong case exists for the creation of Provincial Judicial Service to be recruited by the Provincial Public Service Commission, and a Judicial Service of Pakistan, to be recruited by the FPSC. At the time of graduation, a lawyer must decide if he wishes to spend the rest of his career in the Judiciary, or to go into private practice. Thenceforth, the streams should never be allowed to mix. Arguably, the greatest judges ever produced by this country, Justice AR Cornelius, and Justice MR Kayani, were officers of the Civil Service of Pakistan, recruited by the FPSC, and did not have a day’s private legal practice experience.
Another major reason for the extended time-frame in disposal of cases is the economic structure of the Bar. There is a loose understanding between the Bench and the Bar that the fees charged by the latter are enriched by long-standing litigation. Where a judge does not join this alliance in keeping with the interests of the litigant, unionized lawyers put unrelenting pressure on the judge till he either plays ball, or resigns from his career.
It is a strange and cruel anomaly that the judiciary is not within the jurisdiction of any Anti-Corruption Agency—all of whom are created under the Constitution of Pakistan. Here, one is not necessarily inferring that judges are corrupt, but merely that there have to be external watch mechanisms in the same manner as those which cover other state functionaries paid by the budget estimates of the state. Cows, holy or otherwise, may be revered in Hinduism, but not so in Islam. Our religion dictates accountability, both in this life and the hereafter. Freedom of the judiciary is essential for an equal application of laws across all classes, but the conduct of individuals should be subject to question by auditors exercising civil and criminal powers. This brooks no argument against it.
There is a famed legal maxim that says “Justice delayed is justice denied”. Unfortunately, like the other Common Law countries, the concept of ‘due process’ has been extended to a ridiculously high time frame in Pakistan. Regrettably, the laws in effect in this country today were drafted by an alien ruling elite who had the agenda of keeping a grip on power over the ‘natives’; the laws of the Raj era were designed to trap the litigant in a vicious system of ‘appeals’ which extended over seven or more rungs starting from the Court of Civil Judge to the Full Bench of the Apex Court.
We are such incompetents as a nation that we continue to wallow in the same quagmire. Those of us who once admired the Brits as a civilized nation have been shaken out of our reverie, by the ‘Black Lives Matter’ movement which has even knocked down Churchill (Greatest Briton of the 20th Century) into the gutter of racial bigotry and cruelty to colonized people of the British Empire. “What a great fall it is, my Countrymen” (Loosely plagiarized from Shakespeare’s ‘Julius Caesar’). The BLM movement is profoundly thought provoking for us in many social and historical perspectives. One is to trash all laws given by colonists and work our indigenous justice system based on Islamic equity.
Another major reason for the extended time-frame in disposal of cases is the economic structure of the Bar. There is a loose understanding between the Bench and the Bar that the fees charged by the latter are enriched by long-standing litigation. Where a judge does not join this alliance in keeping with the interests of the litigant, unionized lawyers put unrelenting pressure on the judge till he either plays ball, or resigns from his career. The state, which in the final analysis is the keeper of the interest of the citizen couldn’t care less. So the hapless guy caught in this convoluted system either suffers in silence or just gives up on ever getting justice from the cruel set-up.
I opened this piece by quoting a famous common law judge. It is an admission by one of the titans of the United States common law system; and it seems to have been said by Justice Holmes as a commentary on our courts. Our Lordships follow the letter of the law to such extremes that justice gets left out somewhere in the legal debate. How so very sad. One cannot even begin to imagine the horrible impact of our present court structure and output on the over-all untidy law and order scene. But it must be considerable to say the least.