Daily Times

Our courts are formal and procedure-ruled premises where a strict protocol is required to be observed. To add more spice, our judges have become quick to take umbrage and deliver a scathing snub to a wayward petitioner, a bound witness or whoever happens to be at the business end of the judicial muzzle. The frequency has increased in direct proportion to the ultra-sensitivity of the judicial barometer.

Gag orders in the courts and the stony protocol serve a useful purpose. They prevent irrelevant talk by a petitioner, thus saving the court’s time and the petitioner from walking into a legal minefield. The methodology of indirect representation also checks heated arguments between two opponents and allows respective counsel to remain focused on the issues at hand, helping the judges to follow the scarlet thread of the case. There is wisdom in the practice since one cannot plead one’s own case as effectively as a third person (the counsel) can.

However, this practice has its inherent flaws. Foremost among them is that many counsel tend to mislead the court into otherwise genuine looking but irrelevant grazing patches. The courts also, in most cases, are not able to contain this deliberate obfuscation. Simultaneously, opposing lawyers tend to take advantage of their position and provisions of law to prolong proceedings in order to exert pressure upon and cause exhaustion to the opposing party. Justice invariably gets delayed and diluted to the detriment of those wronged.

On the human plane, most counsel fail to identify with the cause of their clients psychologically and rarely realise the psychosocial impact of the wrong done to the petitioner. By the same token they also fail to energise the court to empathise with and imagine the true plight of the wronged party. To conceal this conspicuous deficiency. both adopt an easy way out. That is to hide behind the flat and barren text of the relevant law or rely upon someone else’s judgement in a similar or closely similar case. The result is one more pedestrian judgement amongst hundreds of thousands earlier ones. Barring the exceptional few, the texts of judgements appear to be more the handiwork of stenographers and readers than the learned judges.

You may have sensed the tentativeness of the entire judicial environment and might even see how perfidious it has become. It defeats the ends of justice, adding to the rising popular disillusionment with our frigid judicial system. It is almost always the petitioner who is on the receiving end of the judicial mace and suffers the most. Most lawyers get away with their money and incompetence, and the courts with their arrogance and entitlement. A case in point as reported in the media recently is that the learned Sindh High Court (SHC) took nearly 20 years to decide that a few unpopular roadblocks in Karachi were a public nuisance. It would have taken the wigs in the SHC just under two hours to see and determine if the contention was right rather than such taking such a ridiculously long time. Ironically, the conscientious petitioner reportedly died during the pendency of the case. His soul might rest in peace now.

Commendable examples exist where a counsel advised the client right from the outset against filing an untenable suit or returned the money if the proceedings in the court were not promising. However, one has yet to hear a court admitting its inadequacy or giving advantage to the petitioner for a lapse in law. It has almost never happened that a court recalled a case proceeding to correct an error in judgment. They are infallible as a rule. The saying goes. ‘A court can never err.’ With inane laws and apathetic courts, where does one go to seek justice?

Due to a chronic national drought of ability, merit and compassion, like all else, the lower courts have become impervious to the swarms of suffering humanity around them. The higher courts have unfortunately occupied the media grandstand and become prisoners of the sensational ‘breaking news’ syndrome. Their dignity in distance, grace in educated quiet and respectful judicial privacy have been, sadly, replaced by sharp comments, relatively unimportant but popular hearings and barbed digs at men and officials called up before them in the course of a proceeding. They have become too loud and too visible for undiluted delivery of justice.

There is another very disturbing but related trend that has become visible amongst the high occupants of the judicial podiums in the country. It may be the result of a very large and unmanageable number of petitions before them or possibly a consequence of victorious judicial activism that was kicked off in 2007. The fact of the matter is that except for a few diligent judges, others do not appear to have gone through the case folders and rely more on the oratory of the respective counsel. This becomes apparent from the feeble quality of their questions, which indicates a mere general cursory browsing. Such a state of affairs has extremely poor optics for the judiciary, effectively undermines the entire system and erodes popular confidence. One has hardly ever seen a petitioner who having ‘won’ the case burst into a merry song. The never-ending process is so thoroughly tiring and nerve shattering that soon disbelief and fatigue overwhelm hope and joy. With that glaring inadequacy has crept in a corresponding trend of verbosity and longwinded detailed judgments that are mainly the result of inattention during the hearings and inability to identify the meat of the case. The Miltonian eloquence of learned judges does not interest a petitioner, nor an out of place sermon in related virtues of piety but justice does. Do spare the trouble.

To comment upon the health of a law and give a well argued ruling is normally not the forte of most judges, the placid mass of the lower judiciary and self-serving law practitioners for obvious reasons. As that requires a deeper knowledge of the law, capacity to reflect, a wider understanding and an ability to distinguish a lapse or overlap in law from a purposeful legal intent of the authors. Therefore, whenever such a tricky situation arises, both the podium and the floor like to sidestep the puddle and only address what is ordinary and mundane. This wilful evasion of duty ultimately creates serious legal complications and years of needless litigation at the cost of justice and the wretched petitioner.

One has not been directly through our groaning judicial mill but has seen fairly closely how coarsely it grinds, mostly without differentiating between wheat and millet. Justice may be blind but it cannot be indifferent and insensitive. The judges need to show greater wisdom and compassion to help the blind goddess deliver a petitioner’s due and not act as men feeding cattle fodder to the chopping wheel. There has to be a difference between a mason and an architect.

(To be continued)

The writer is a retired brigadier of the Pakistan army and can be reached at clay.potter@hotmail.com