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In Defence Of The Judges

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Awais Babar argues that judges are not to blame for the loopholes in our system. With upset Pashtuns, resented Balochs, deprived Sindhis and a quarantined Punjab, as dispersed as we are; we should be content with even the level of justice we have as of now in the country.

Due to lack of awareness, people have profound expectations from the courts. So much so that clients often argue with me as to how come they were able to get a favourable decision but not favourable enough to make them happy. These queries are often followed by a simple sentence in response from me that the judge is bound by the law – which then again is followed by a counter response that ‘what kind of law is this?’

In a broader category, there are two types of judges when it comes to the paradigm from which they listen to cases and then judge on them. For instance, a Justice having the likes of the former Chief Justice of Pakistan Justice Saqib Nisar, would concentrate more on what people perceive as justice than the letter of law. On the other hand, most of the judges tend to follow the law knowing that it is not their job to make the parties happy but rather to be true to the letter of the law. Both type of judges are acceptable as part of the overall diversity needed to help evolve a reasonably perfect justice system as exists in many developed states.

Is it not true that both the parties appearing before a judge in any case wholly and solely believe their side of story to be true? You meet them both just before the hearing and will find both of them narrating their side of the story with equal conviction. Those factors that led to the day that such a contemptuous statement would be identified with courts that they serve the rich require deeper probe.

Let us explore the unreasonable expectations those citizens of Pakistan held from courts who are sympathetic towards Imran Khan and company whereas apathetic towards Nawaz Sharif. These people want the judges to go beyond the law and believe that Nawaz Sharif is indeed a corrupt man irrespective of the availability and the strength of evidence available against him, if at all.
Furthermore, they expect the judges to believe it because Nawaz Sharif as per them has to be corrupt to be what he is or has been-all the more suggesting that no man on earth could have made as much money by honest means. The present Chief Justice of Pakistan Honourable Justice Mr. Justice Asif Saeed Khosa is also to thank for these contemptuous ideologies, “behind every fortune there is a crime” penned the Honourable Justice in his judgement in which he disqualified Nawaz Sharif.

This thought that every fortunate man is nefarious has further exacerbated the expectations people hold from judges. As a result of which whenever a rich man such as Nawaz Sharif gets a relief from courts, people, especially the uneducated ones and those belonging to the losing party tend to assume that the judge favoured the other party. This guesswork is detrimental to our justice system and will have long-term repercussions.

Consequently, let alone Nawaz Sharif, whenever a decision would come from courts it would be perceived as having come under the influence of a strong party. A bank’s customer would accuse the court of being tilted towards the rich banking system even though it owes bank the loan it once sought very earnestly. A divorcee would blame the court if it fails to get anything out of a rich ex-husband due to her own failure as to secure herself financially by not making her life partner contractually liable. Instead in her mind the justice would be that since her ex-husband is a rich man what bad would it do to him or the courts if he gives some away rather than what is she entitled to legally; the examples are countless.

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Parallel to this dilemma, many tend to suggest that we should usurp all the jurisprudence-Islamic as well as Western, on which our whole justice system rests and should replace it with the army law which requires no evidence to convict a man.
Lt. Gen Amjad Shoaib and other analysts like him have time and again advanced this with utter disregard to their knowledge of jurisprudence and if such is the plan of the authorities they will throw us all in an immutable era. For a judge to convict someone without any evidence or less evidence than is required in Islamic as well as Western jurisprudence as is done in amy courts, he must be as spiritually and morally strong as the prophets; even they never segregated jurisprudence from the law.
Jurisprudence in simple terms is a software on which the whole Justice system survives. For example, if I claim that Mr. X owes me a hundred thousand rupees. No matter how honest or immaculately I am perceived by the society as is our PM, I will still have to go to court, hire a lawyer and prove it in court as per the rules of evidence in civil law which will in turn be based on the basic software of jurisprudence. I cannot be allowed to shout at the roundabout that I must be given justice.
Sometimes the law tends to protect the guilty so that ultimately the innocent could be protected. For one to understand this, one will have to open one’s mind and get out of the exasperated ideas recently put forward by PTI and its sympathetic analysts-easily identifiable.

Whatever PTI has been bragging in speeches and TV shows about its objections with regard to Nawaz’s departure should have been argued before the Islamabad and Lahore High Court in bail hearings; white collar crime, fears of absoncsion, public money involved blah-blah, it did not utter a single word during the hearing.
Once one of the parties i.e. the state says openly in court that it has no objection to the accused being released on bail, it has no fears that he will abscond and also that it has no fear that the accused would commit a similar or dissimilar crime with which he is charged in the first place, the court is left with no choice but to favour the defendant (legally).
Had the government argued these points it is likely that the courts would have rejected the bail unless Nawaz Sharif’s lawyers could show to the court prima facie (on the face of it) that the state’s intentions in bringing their client to such allegations are mala fide.
These are the complexities involved in law, judges are bound by it and they cannot be expected to be heroes for some and villains for others. This is not what the judges sign up for. And their duty is towards the law only as emphasized by the Honourable Chief Justice Asif Saeed Khosa, in his speech in response to the PM’s indirect barb on the courts. Judges may end up making bad decisions though not because they are biased but because the situation might not be as transparent as it seems to be.

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Some lawyers are also to blame for this as in order to make the mare go they would often deceive their clients as to the strength of their case and cause them to feel certain that there is no chance of losing whatsoever. The client happily loosens his pocket and the lawyer has his day. When ultimately the case is not won, which any honest lawyer would have predicted to his client in the very beginning then the unjustly enriched lawyer injects his client with the idea of likelihood that the judge may have been bribed or that he is biased.

Drowning man catches at a straw, the client though hesitantly but ends up believing his counsel with nothing to substantiate his claim.
This gives another opportunity to the lawyer to extract some more money from his client and would this time tell the latter that not all judges are like that and persuades him to appeal. This puts the client in a Catch 22 and he hires one lawyer after another each assuring him that he has a strong and winnable case.

Justice is not something which can be given, it is something which emerges itself when the society at large orients itself in the right direction. With upset Pashtuns, resented Balochs, deprived Sindhis and a quarantined Punjab, as dispersed as we are; we should be content with even the level of justice we have as of now in the country. To be fair to judges, our system is still evolving. There may be instances when we would directly jump to conclusions with regard to a judge’s character without knowing any bit about the fact. For instance, the trial court verdict convicting Hanif Abbasi in what is known as the ‘Ephedrine case’, the verdict of which was given at 11 PM in July 2018 last year; the learned Trial Judge was ordered by the High Court to hold day to day hearings from 16 July and decide the case by 21st of the same month.

What may have prompted the whole judiciary to act in a certain direction? Empathy is the answer and the hope that one day no one would dare influence the judiciary-rich, poor or the stronger ones.

Having glanced various standpoints to the issue at hand, there is no doubt that justice system in Pakistan is suffering from quite a few problems. The never-ending wait, countless adjournments, inconsistent mechanisms as to hiring and firing of judges, and the pressure our courts feel in cases pertaining to armed forces. Despite these problems, judges are as much affected as any other departments, not more not less; judges too are human.

It is important to inscribe the nation with an undeniable fact these judges are not some other creatures, they come from us, to doubt all of them would be to doubt ourselves. Most of the judges provide justice most of the times, it is us ‘the people’ who want a different sort of justice each time suited to our aspirations.
To say that the Pakistani courts are bitches of the riches is disgusting, untrue and completely against reality.

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