Last week witnessed some lawyers in Faisalabad causing mayhem and attacking the office of the District Coordination Officer, Faisalabad. While the attack and the violent protest is condemnable, however, the manner of protest must not eclipse the issue of the legitimacy of the demands in question. The subject of protest was not a new one but has surfaced time and again. The protestors were calling for the creation of Lahore High Court benches in their respective divisions. While different district bars have been pushing for this cause, the lawyer community of Faisalabad and Gujranwala have been most vocal about it.
Before discussing the demand and its merits, it is imperative to put forward the relevant law surrounding the issue. Article 37 (d) of the Constitution, though non-justiciable, makes it the duty of the state to “ensure inexpensive and expeditious justice”. Article 198 (3) states that the Lahore High Court “shall have a bench each at Bahawalpur, Multan and Rawalpindi”. Article 198 (4) further provides for the creation of Additional Benches by stipulating, “Each of the High Courts may have Benches at such other places, as the Governor may determine on the advice of the Cabinet and in consultation with the Chief Justice of the High Court”. The jurisprudence of the superior judiciary has interpreted the word ‘consultation’ to mean ‘binding consultation‘ which necessitates that the Chief Justice of the respective High Court must be taken on board if an additional bench is to be created. The matter of the creation of additional benches was taken up by the full bench of Lahore High court; however, the case was disposed of in haste, and most of the issues were swept under the rug.
The most convincing rationale for the demand of the creation of more benches is that, in the absence of benches, lawyers and litigants need to travel to the High Court, which increases the cost of litigation and, is one of the factors, contributing to the longevity of the cases. To put things into perspective, Khyber Pakhtunkhwa – with one-third population of Punjab- has four benches other than the Principal Seat at Peshawar while Sindh – with half the population of Punjab – has three Benches in addition to the Principal Seat at Karachi. While Punjab, the most populous province of the country, has only three benches in addition to the Principal Seat at Lahore. In light of these facts, the protests by the lawyer community in Punjab, especially the Central Punjab, should come as no surprise. The relevant questions that need to be asked are: on what grounds should a bench be created? Should it be the population of the district or a division? Or should it be the distance from the existing benches? Or should it be dependent upon the frequency of high court litigation emerging from each division? Which factors should go into this calculation and how much weightage must be assigned to each? Should a district 500 miles away from the bench with a very low frequency of high court litigation, be given preference over a district only 150 miles from the existing bench, with a very high frequency of litigation? There is no clear-cut formula that can be extracted.
However, the search for a mathematically precise formula has secondary importance when compared to the convenience of the litigants. Additional benches have been created by Sindh and Peshawar High Courts and the factors that went into that decision can be looked at for guidance. Alternatively, one can follow a bright line rule and establish benches at the division level. The number of judges appointed to each division bench can be adjusted according to the population and the frequency of litigation in each division.
The most convincing rationale for the demand of the creation of more benches is that, in the absence of benches, lawyers and litigants need to travel to the High Court, which increases the cost of litigation and, is one of the factors, contributing to the longevity of the cases
The second argument for the creation of more benches in Punjab is why the people of three divisions, i.e., Multan, Bahawalpur and Rawalpindi, are given preferential treatment over others. This blatant and almost provocative discrimination should be put to an end. There are two ways of doing so. One would be to abolish the existing benches and centralising the whole judicial system in Lahore. This step will have disastrous consequences on the lives of the litigants and lawyers and will be in direct violation of Article 37 (d) of the Constitution. The other way is to create more benches at division level in Punjab which will decentralise the judicial system and bring justice to people at their doorsteps. This will also end the monopoly of few big Lahore based law chambers over the judicial system and will be a step in the direction for equality of opportunity and fair play.
The third reason for the creation of more benches is to relieve the pressure of population on Lahore and its resources. In the present state of affairs, all promising lawyers must move to Lahore if they want to excel in their legal careers and have a shot at a judgeship. This phenomenon has had two negative effects. Firstly, it led to brain-drain in local district bars since no competent lawyer wants to travel to Lahore on a daily basis just to witness his cases being left over. Secondly, it has taken a toll on the resources and environment of Lahore, contributing to the city’s ever-growing problems. This wave of migration has worsened the housing problem, traffic congestion and environmental deterioration.
In order to improve access to justice for the ordinary Pakistani, relevant stakeholders must put their differences aside and should all be on the page. The judiciary, bar councils and lawyers must not let power politics and myopic agenda get in the way of a higher ideal, i.e. access to fair, economical and expeditious justice.
The writer has completed an LLM from the University of Chicago.
Published in Daily Times, November 24th 2018.