The day after

Chief Justice Iftikhar Muhammad Chaudhry has taken back his office with a promise to end corruption within the judiciary. That is just one of the problems afflicting the institution over which he presides now, and over which he once presided. The judicial arm of the state is not just perceived as corrupt, but it is also seen as taking more time than it should, and costing more than it should. The reasons for delay are built into the system. Not just the judges contribute, but so do both plaintiff and respondent, and their lawyers. The most painful exaction, which Chief Justice Chaudhry may not be able to eliminate, is that of the officials of the lower courts. Even if the judges will not take anything influencing their decisions, the officials still extract their pound of flesh, and vitiate the atmosphere of the court. They perform all manner of work, and are very often the means through which judges will take something for themselves. As Chief Justice Chaudhry knows better than anybody else, the lower officials do not make money only on decisions, but on dates of hearing. Cases are not heard consecutively once they have started, but may well be postponed. The next date is intimated to both (or more) parties, depending on everyone's convenience, and is fixed by a lower court official - for a consideration. A party finds that he has to pay, and pay, not just his lawyer, at every hearing, even if it solely involved a postponement. This particular expense of going to the law, whether on the civil side or criminal, is not just a source of corruption, but also of delays. The postponements mean that the case may linger on for years, where it should have been over in a hearing or two. Why do even honest judges allow this? The primary reason is that the lower judiciary wishes to practice corruption. However, since on the civil side, some cases involve large sums, the multinationals being welcomed into Pakistan require a better dispute resolution mechanism than presently exists. The second reason is that this has been sanctioned by custom. Another reason is that the stakeholders, mostly lawyers and their clients, want the system to operate like that. The image is carefully cultivated of a corrupt subordinate judiciary and an honest superior judiciary, but Chief Justice Chaudhry has challenged that, and rightly so, at least as far as popular perceptions go. It is thought that it is possible to suborn the superior courts easily, and lawyers are selected for their expertise in going so, not necessarily because of their excellence in arguing a case. It should be remembered that the judges of the high courts, some of whom go on to become judges of the Supreme Court, are picked from either the subordinate judiciary, or the lawyers, who plead before that corrupt judiciary. It should not be surprising that the subordinate judges and the lawyers both bring the taint of corruption, to which Chief Justice Chaudhry has pointed, along with them. The real solution lies in increasing, or rather multiplying, the number of judges, so that they have a bearable case load each. It also involves increasing judicial salaries manifold. Both increases cannot be carried out by Chief Justice Chaudhry, and unless he has a commitment on this from the federal government, he will be just another of the many chief justices and justices who have delineated the problem, but have not arrived at a solution. That alone would allow the consecutive hearings that would allow a resolution of the cases in a timely fashion. What exactly should be done about postponements is not known. The right to representation is enshrined in the Constitution, and the desire of lawyers to obtain postponements is very old. It dates back to the British Raj, when the present legal system was introduced, replacing the old Shariah system which predated the Mughals, and which had broken down when it was replaced. It had not broken down irretrievably, but sufficiently so that it no longer provided an efficient dispute resolution mechanism. It is perhaps not surprising that its replacement is not much better, because the legal system is not there to solve disputes, but to enable parties to carry on pre-existing rivalries. Therefore, corruption is built into the system, which is not used by its users (the parties) to achieve justice, but to do down their rivals. This suddenly reveals Chief Justice Chaudhry's goal as not just the reform of the system, which implies merely the removal of distortions, but something which was not within his mandate-the replacement of the system. The Chief Justice returned to office, not from the goodwill of the government, but as the result of a lawyers' movement, unprecedented in the history not just of Pakistan, but the entire Subcontinent. Obviously, this movement imposed its mandate, and it was one for change. Chief Justice Chaudhry did not obtain the mandate obtained by political parties on the basis of their manifesto, and it did not suit his office, but it was widely assumed that he stood for changing the judicial system so that it started delivering what it was not doing, cheap and swift justice. In fact, if he does not do so, the great effort made by the entire nation, including the opposition parties and the lawyers, to restore him, would have gone waste in the sense that one status quo CJ would have been replaced by another. This has another implication. The goal may have started as personal to the Chief Justice, but it was also one which the entire nation shared. Therefore, even if he does not realize this goal himself, it is one by which his successors will be judged. It is also possible that in future, political parties will find the public judging them by how far they have helped in the realization of this goal. Of course, parties may find that they are not judged by this single issue alone, but Iftikhar Chaudhry has made sure that future Chief Justices, and not just of Pakistan, will be judged on this touchstone. He has also helped the Bar assert itself, in its role of helping the Bench. The executive's old reliance on the judiciary, which predates the British, but which provides the example on which today's executive relies, has also been broken. The executive needed a judiciary which was part of the status quo, even if it did not deliver justice. Now justice delivery has become of more importance, as Chief Justice Chaudhry's steps seem to recognize.

The writer is a veteran journalist and founding member as well as Executive Editor of The Nation.

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