New Tehreek-e-Insaaf government must live up to its name, provide equal justice to all in Pakistan

“The opposite of poverty is not wealth, it’s justice.”

Dean Tufano of Oxford’s Saïd Business School reminded the audience of this quote by American lawyer and rights activist, Bryan Stevenson, during his farewell speech last Friday to the school’s graduating class.

His message was that business schools still don’t put enough emphasis on the pursuit of justice and that as this class moves on to leadership positions on the world stage, hopefully with the aim of “tackling world-scale problems”, we must not forget the importance of justice in our societies.

For me, as a Pakistani lawyer and member of this graduating class, his words couldn’t have been more profound. They re-affirmed my belief that no amount of wealth or social stature could replace the need for living in a society with equal justice.

Access to justice remains a world-scale problem and the issue is of even greater importance for countries such as Pakistan. In fact, for us in Pakistan, it is not merely a matter of equal justice but, more significantly, of accessible and timely justice.

Justice delayed, denied

At the end of 2017, there were more than 1.8 million cases pending before the courts in the country. As of August 2018, there were 36,344 cases pending before the Supreme Court alone – a number that has doubled since 2009.

This number includes 294 constitutional petitions, 177 human rights cases and 59 suo moto matters. These few cases take up a significant amount of the superior court’s time and get disproportionate media coverage, whereas many other cases impacting human liberty take decades with little or no public attention.

The acquittal in 2016 of Mazhar Hussain, who had already died in prison two years earlier and hence couldn’t be around to see justice prevail, took around 12 years since the day he was initially awarded the death penalty.

The minimum monthly wage for unskilled workers in Pakistan is Rs 15,000, with many household and farm workers making even less than this meagre amount.

According to the Economic Survey 2018, 24.3% of the country’s population, around 51 million people, was living below the poverty line in 2015-’16. Moreover, only 58% of the population can be considered to have achieved some level of literacy.

Are we to imagine that this significant percentage of the population with limited financial resources and little or no literacy has no need for access to justice?

How can any of them even achieve legal literacy and awareness, let alone have the means, to approach the courts or engage a lawyer?

There are now around 100,000 lawyers in Pakistan and tens of thousands of law students enrolled in the country’s few dozen government and private law colleges.

In a country where wealth is concentrated in the hands of the few and where the top 10% of the population earns around 27.6% of the national income, the legal fraternity is obviously only geared towards servicing the needs of the top 10%-20% of the population.

Even then, many lawyers in Pakistan struggle to earn a decent living and complain of being under paid daily wagers.

Snail’s pace

One of the main issues leading to slow case disposal, in addition to issues related to shortage of judges and lack of judicial resources, is the trend of seeking constant adjournments from the courts on one pretext or the other and using delaying tactics to avoid the final decision of a case.

This is partly linked to the low income of many lawyers and the inability of their clients to pay proper fees, resulting in a situation where the lawyer keeps on taking additional fee, in small amounts, for each hearing.

This is not to say that lawyers charging high fees don’t use the same tactics in their clients’ interests and end up wasting precious time of the courts; however, the problem is more systematic and very much linked to the fee payment structure for a large percentage of lawyers in the country.

The question remains that if the legal system is facing these socio-economic challenges at a time when a large proportion of the population is perhaps not even in the fold of the justice system or is very marginalised and underserved, how will we provide access to justice in its true sense to every Shahzeb and Zainab in Pakistan?

How will the state enable legal representation for a domestic worker who gets kicked out from their job without receiving the previous month’s salary, or to a street vendor who has their goods stolen or taken away by those above the law, or to the girls faced with unimaginable decisions of unlawful jirgas in remote villages?

Very few of the underpaid members of the legal fraternity would be willing to work overtime for very little or no money without the incentive of fame or fortune. For the high-earners, pro-bono cases are a recent trend and few and far between.

The legal aid systems in Western justice systems work at great expense and under a lot of accountability. At this stage, we have the resources, will and procedures for neither.

Therefore, one must wonder if the judiciary’s current activism is merely symbolic and probably not capable of achieving any systematic success of ensuring equal, timely and accessible justice to the population at large.

Perhaps widespread access to justice can’t even be a goal at this stage and it is certainly not the judiciary’s fault alone.

We certainly don’t have enough judges with sufficient resources at their disposal to clear the backlog of 1.8 million cases within a short span of time and we have never seen the political will to address this issue.

Need for change

The party in power now was established as a movement of justice, but it has inherited so many problems from the previous governments that access to justice is currently not so central to its agenda. One would hope that this would change and ensuring justice will become priority.

There have been many good steps in the recent past to tackle some of the key issues:

The parliament has passed laws or amendments aimed at penalising frivolous litigation; the courts have tried to implement the National Judicial Policy to adhere to strict timelines and case progress procedures; the Law and Justice Commission of Pakistan has proposed recommendations; technology based social projects such as Mohtasib.pk have increased access to Ombudsperson offices in Pakistan; and at least the Lahore High Court, under then-Chief Justice Syed Mansoor Ali Shah, took steps for adopting alternative dispute resolution mechanisms with reasonable success in a short period.

All these efforts are good. But they do not come anywhere close to providing equal, accessible and timely justice to the entire population of Pakistan.

We must strive for equal justice; we must raise our voice for timely justice, but most importantly, we must think of ways for ensuing access to justice to tens of millions of Pakistanis for whom justice is perhaps just a meaningless word or, at best, the title of an important person and not an ideal of hope, fairness and equity.

This article first appeared on Dawn.