Need for structural changes (Judiciary)
Sunday, May 31, 2009
Dawn, Pakistan
Sunday, 31 May, 2009
A PRESS report quotes Chief Justice Iftikhar Chaudhry having said that the doctrine of necessity stands buried and the rule of law has returned. With full respect that is due to the views of a judge, even when expressed outside the court, it must be said that Justice Chaudhry’s optimism on both counts is misplaced.
The doctrine of necessity is yet to be put to the real test, and the law rules no better than it did before his reinstatement. Every court verdict is still received cynically.
The visible beneficiaries so far are the victims of the previous regime. To get up to the Supreme Court, nevertheless, is a long and expensive course. Or, as a British judge Sir James Mathews put it 100 years ago: “Justice is open to all like the Ritz Hotel.”
Justice Chaudhry, however, was on the mark when he said that it was the inability of the state to dispense speedy justice that had led to the “war-like situation” in Swat — the “time-tested” judicial system was not to be blamed. There he went wrong again.
Delay is built into our laws and procedures. And the judges, lawyers, litigants (except for the unfortunate ones who rot in jails or are otherwise deprived of their rights) all revel in it.The people of the Malakand division have risen in revolt because for generations they were accustomed to speedy, if not always even-handed, justice dispensed by the princes, fief-holders or political agents by invoking the Sharia, usage or colonial regulations — whatever suited the occasion best or was preferred by the parties.
The people in the settled parts of the country have been putting up with the delays in the belief that the final dividend will be a just finding. That belief having been shaken to the core and delays only aggravating, it appears to be a matter of time before the settled, as opposed to the tribal, people too rebel against the “time-tested” system, not for its delay alone but also for its injustice.
In support of this apprehension, this writer may be permitted to recall some personal experiences spread over half a century, first in working the system and later in suffering its torment. Theories can be moulded to one’s liking but not the actual happenings.
Driving through a wayside bazaar in Swat state (as it then was) I killed a goose and hurt the child chasing it. As a crowd gathered a man more authentic than the rest appeared on the scene. He was the local qazi.
He heard both sides in his ‘court’ nearby and ruled that I should pay Rs20 for killing the goose (that I did) and a similar sum for hurting the girl — that her father graciously declined. Within half an hour I was again on the road.
Now the other side of the picture. A few days after that incident, I was sitting in my magistrate’s court in Nowshera when a foreign tourist came complaining that driving through the town his car was badly damaged by a negligent truck driver. The police had registered a case and asked him to appear in my court after a week.
Recalling how grateful I was to the Swat qazi under similar circumstances, I heard the case the following day and convicted the truck driver ignoring his protestations.
“What about compensation for my damage?” the foreigner asked. For that, I told him, he had to go to civil court where it might take a year or more. He left, cursing the system and its operators.
It is a long-established tradition in Chitral that a husband has the right to kill his adulteress wife if caught red-handed. The state’s judicial council upheld that right in rather uncertain circumstances. As the government’s chief adviser to the state I wouldn’t agree despite repeated pleas of the council. The following day the woman was found dead in the woods. Custom, and not order,
prevailed.
During my stay in the state not a single heinous crime was reported. The worst offender was a state police official who hunted down a snow leopard — a protected species — to present its skin to me as a memento.
In 1994, my wife and I both were kidnapped and robbed by a gang of four. The chief gangster was convicted after a five-year long trial but instantly released as the sessions court set his sentence off against detention during trial.
The punishment prescribed in the law being life imprisonment, the advocate general on behalf of the state filed a revision petition in the Sindh High Court. It still lies there somewhere for seven years now.
On the report of a cleric, I was prosecuted for misrepresenting my religious faith. It took appearances before a number of sessions and high court judges spread over six years before a lady additional sessions judge, Nuzhat Alvi, took half an
hour to hear and dismiss the complaint.
That intrepid woman, combined with my recollection of the late formidable Suraya Pai who was additional district magistrate when I was district magistrate of Karachi in the 1970s, convinces me that for expeditious and just disposal of criminal cases, perhaps, all our trial courts should be headed by women.
I long pleaded with the government to make another stern woman — Rukhsana Salim — a district magistrate. She wasn’t, though later she was made a secretary.
Justice Chaudhry’s instincts, words to the judges and the bar, visits to jails with officials will make little difference to the quality and speed of justice. The system needs structural changes; some laws and even court rulings have to be struck down for they violate human rights and impede the course of justice. This is a long and tedious task needing humility not protocol.
Above all, the judges must be well-paid stern recluses. The role model at the top should be Justice Cornelius. His only foray in public out of his hotel room was on Sundays driving his sports MG all by himself. Then, in later years, my friend Justice Shafiur Rehman, when on official duty, would take a bus to Lahore as it didn’t make sense to him to spend four times as much public money to travel by air to save just an hour.
At the lower end, in my childhood I knew a sub-judge who at the district club would join the executive officers in tennis but not in their gossip.
To be popular and impartial at the same time is a hard balancing act for any public official; it is harder for a judge.
Source
Sunday, 31 May, 2009
A PRESS report quotes Chief Justice Iftikhar Chaudhry having said that the doctrine of necessity stands buried and the rule of law has returned. With full respect that is due to the views of a judge, even when expressed outside the court, it must be said that Justice Chaudhry’s optimism on both counts is misplaced.
The doctrine of necessity is yet to be put to the real test, and the law rules no better than it did before his reinstatement. Every court verdict is still received cynically.
The visible beneficiaries so far are the victims of the previous regime. To get up to the Supreme Court, nevertheless, is a long and expensive course. Or, as a British judge Sir James Mathews put it 100 years ago: “Justice is open to all like the Ritz Hotel.”
Justice Chaudhry, however, was on the mark when he said that it was the inability of the state to dispense speedy justice that had led to the “war-like situation” in Swat — the “time-tested” judicial system was not to be blamed. There he went wrong again.
Delay is built into our laws and procedures. And the judges, lawyers, litigants (except for the unfortunate ones who rot in jails or are otherwise deprived of their rights) all revel in it.The people of the Malakand division have risen in revolt because for generations they were accustomed to speedy, if not always even-handed, justice dispensed by the princes, fief-holders or political agents by invoking the Sharia, usage or colonial regulations — whatever suited the occasion best or was preferred by the parties.
The people in the settled parts of the country have been putting up with the delays in the belief that the final dividend will be a just finding. That belief having been shaken to the core and delays only aggravating, it appears to be a matter of time before the settled, as opposed to the tribal, people too rebel against the “time-tested” system, not for its delay alone but also for its injustice.
In support of this apprehension, this writer may be permitted to recall some personal experiences spread over half a century, first in working the system and later in suffering its torment. Theories can be moulded to one’s liking but not the actual happenings.
Driving through a wayside bazaar in Swat state (as it then was) I killed a goose and hurt the child chasing it. As a crowd gathered a man more authentic than the rest appeared on the scene. He was the local qazi.
He heard both sides in his ‘court’ nearby and ruled that I should pay Rs20 for killing the goose (that I did) and a similar sum for hurting the girl — that her father graciously declined. Within half an hour I was again on the road.
Now the other side of the picture. A few days after that incident, I was sitting in my magistrate’s court in Nowshera when a foreign tourist came complaining that driving through the town his car was badly damaged by a negligent truck driver. The police had registered a case and asked him to appear in my court after a week.
Recalling how grateful I was to the Swat qazi under similar circumstances, I heard the case the following day and convicted the truck driver ignoring his protestations.
“What about compensation for my damage?” the foreigner asked. For that, I told him, he had to go to civil court where it might take a year or more. He left, cursing the system and its operators.
It is a long-established tradition in Chitral that a husband has the right to kill his adulteress wife if caught red-handed. The state’s judicial council upheld that right in rather uncertain circumstances. As the government’s chief adviser to the state I wouldn’t agree despite repeated pleas of the council. The following day the woman was found dead in the woods. Custom, and not order,
prevailed.
During my stay in the state not a single heinous crime was reported. The worst offender was a state police official who hunted down a snow leopard — a protected species — to present its skin to me as a memento.
In 1994, my wife and I both were kidnapped and robbed by a gang of four. The chief gangster was convicted after a five-year long trial but instantly released as the sessions court set his sentence off against detention during trial.
The punishment prescribed in the law being life imprisonment, the advocate general on behalf of the state filed a revision petition in the Sindh High Court. It still lies there somewhere for seven years now.
On the report of a cleric, I was prosecuted for misrepresenting my religious faith. It took appearances before a number of sessions and high court judges spread over six years before a lady additional sessions judge, Nuzhat Alvi, took half an
hour to hear and dismiss the complaint.
That intrepid woman, combined with my recollection of the late formidable Suraya Pai who was additional district magistrate when I was district magistrate of Karachi in the 1970s, convinces me that for expeditious and just disposal of criminal cases, perhaps, all our trial courts should be headed by women.
I long pleaded with the government to make another stern woman — Rukhsana Salim — a district magistrate. She wasn’t, though later she was made a secretary.
Justice Chaudhry’s instincts, words to the judges and the bar, visits to jails with officials will make little difference to the quality and speed of justice. The system needs structural changes; some laws and even court rulings have to be struck down for they violate human rights and impede the course of justice. This is a long and tedious task needing humility not protocol.
Above all, the judges must be well-paid stern recluses. The role model at the top should be Justice Cornelius. His only foray in public out of his hotel room was on Sundays driving his sports MG all by himself. Then, in later years, my friend Justice Shafiur Rehman, when on official duty, would take a bus to Lahore as it didn’t make sense to him to spend four times as much public money to travel by air to save just an hour.
At the lower end, in my childhood I knew a sub-judge who at the district club would join the executive officers in tennis but not in their gossip.
To be popular and impartial at the same time is a hard balancing act for any public official; it is harder for a judge.
Source
Labels: Governance, Judiciary
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