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Legal Diaries: Good Judges and Bad Attitudes

Legal Diaries: Good Judges and Bad Attitudes

How often do you hear Pakistanis say: what’s the point of laws, they’re hardly enforced?  That’s the perception.  Laws exist on paper.  Rights are violated on the street. And courts are dysfunctional, delays inordinate, judges may be purchased, and only the privileged get their day — all true allegations. But the devil’s (advocate) is in the details.  Spend a week in the high courts and kachehris of Karachi and you will see that laws are enforced, and we are a more litigious society than we give ourselves credit for.

The lone girl lifts her niqab, exposes powdered face to judge, testifies that she married of her own volition and wasn’t abducted as per her father’s complaint; tuition teacher turned kidnapper-for-ransom turned murderer requests bail reconsideration; the bureaucrat with the dyed hair requests review of his demotion; the ubiquitous Shehri takes a petition all the way to Supreme Court and argues pro se that MACRO Habib Karachi has been illegally built on an amenity plot.  He gets a judgment in his favor thus humiliating crore-rupee lawyers.  The court screen announces Mary Braganza taking on the Federation of Pakistan.  Nevermind that the judge can’t spell Diocese.  A triumphant small town lawyer photo copies for me a judgment from the Multan High Court stating Army Welfare Trust’s usurpation of peasant land in the Thal desert is illegal.  Justice Khosa for the Lahore High Court ruled that sentences must be uniform, consistent and fair.  His court prescribed tariffs for various drug offences in proportion to their gravity.  It’s idealistic and fills a gap in the law.  Lawyer Shahzad Akbar filed writs against drone strike before the Peshawar High Court.

But the Thal peasants’ struggle is far from over.  MACRO still does business as consumers, eager for Dubai glitter, outnumber outraged community members.  Lawyers dismiss Khosa’s tariffs with a flick of wrist as improper judicial legislation.  Rights may not be experienced by people immediately but the good decisions continue.

In the Supreme Court, the CJ gave permission to consider whether children can be tried in Anti-Terrorism courts.  The Anti-Terrorism Act is incompatible with the Juvenile Justice Ordinance that protects young people mandating they be tried by juvenile courts only.  Currently, children can be sentenced to life imprisonment for kidnapping for ransom, for example, in an anti-terrorism court.  And terrorism offences are defined loosely.

A reputable lawyer, shuffling between clients, courtrooms, and the commission on Baldia Factory incident, says the bench is amenable to public interest litigation.

Organizations complement progressive litigation.  UNHCR conducts refugee rights workshops at law colleges.  Shehri spreads awareness around the freedom of information act.  ICRC hosts moot court competitions in International Humanitarian Law bringing together students from Karachi and Peshawar; and Reprieve, a UK NGO supports the anti drone strikes work.

However the point is this – progressive legal culture is not systematically and incrementally developed.  It’s random.  Judges act with good intentions, but there are no overtly progressive blocks of judges as in the ninth circuit in the U.S.  Not to say things are better or worse – but for every Asma, India has ten Indras.  For ten Mushir Alams deciding according to their conscience, there is one Krishna Iyer with a lifetime of judicial activism.  For the one labor case that was successfully filed on behalf of factory waste victims, there are a dozen pressing issues that remain un-litigated.  There are no Centers for Constitutional Rights or the ACLU, or even a conspicuous presence of legal aid clinics.

Photo: http://www.countercurrents.org/kiyer131112.htm

Photo: http://www.countercurrents.org/kiyer131112.htm

Although women’s’ groups and labor organizations have brought their legal issues to the forefront (whether in reaction to the repressive Hudood Ordinance or through funded consultation for new laws on rights of home based workers) large areas remain unexplored.  There is no widespread legal debate on, for example, deforestation, privatization, mega projects, farmer rights to seeds, hunger and malnutrition which is at an emergency level in Sindh, state negligence, prisoners’ rights, constitutional rights, and the state’s obligations under international treaties and conventions.

Photo: Dawn

Photo: Dawn

Without institutional support for progressive legal culture, law students can’t be drawn to litigation for peoples’ rights.  An Indian friend left a job in the Silicon Valley to study law in Delhi so she could better advocate for the people of Jadugodha, Narmada and Chattisgarh around natural rights and resources.  Students here prefer Phillip Morris and Pfizer.  That Pfizer’s ghost, Monsanto, is notorious and sued worldwide for its GMOS; that Phillip Morris has paid millions in lawsuits to victims are not pressing concerns.  Sanitized working floors, water cooler romance, and the glamor of “Suits” is the aspiration.  Many students don’t want to be the fatigued, tanned attorneys negotiating Larkana Jail.  They want to be bastards, not suckers.   There is no state social welfare to bail them out.  They didn’t grow up saluting the 1st amendment.  The Miranda right to silence is the stuff of shows.

However, if you look, you will find the judge who wants to do the right thing – realizes poor people do not have rights, industrialists make criminal short cuts, womenfolk are vulnerable, and mangroves must be preserved.  Even if there isn’t always the theoretical anchor, political underpinning – some foundation in notions of gender, labor, environmental or criminal justice to the cases, good motives slide us by.

What is perhaps the worst blow to our legal development — besides the failure of institutions, military interruptions, collapse of public education, and entrenched class hierarchy — is this: The toxic mix of secular laws with Sharia – causing confusion and dread.  Through Zia’s laws, certain offences were taken out of regular courts and put before federal shariat courts.   The confusion permeated the minds of judges.  They were beaten down by Zia’s Islamization and the narrow mindedness of the times, the Linclon Inn too distant.

Some of the worst provisions of Zia’s Hudood Ordinance were repealed by the Women’s Protection Act of 2006 bringing rape back in the Penal Code, prosecutable in a criminal court, and protecting victims from prosecution.  Ushering in more change, the Supreme Court ruled that in the Salman Akram Raja (2013 SCMR 203) that DNA testing should be mandatory in rape cases.

Making waters murky yet again, the Council of Islamic Ideology, this past week deemed such forensic evidence inadmissible as primary evidence.  As it is, DNA results would support other evidence.  Is the CII’s pronouncement hostile to women and superfluous?  It’s like they want to make rape impossible to prosecute, but don’t know how. It’s not enough for them that social and legal attitudes “blame the victim”, but there are difficulties in collection of evidence.   Why cause further confusion?  It’s better to have  law courts over time define tests for reliability and accuracy of the methodologies behind DNA tests as courts overseas have done.  The Federal Shariat Court enjoys jurisdiction to review all laws incompatible with Islamic Injunctions.  So the Supreme Court’s decision in Akram Raja may be reviewed even though it’s a good one.  And that puts us in a regressive spiral and serves as our unique and depressing impediment to progressive law development.

But hating the victim must end.  I remember the infamous steel table at the police surgeons’ office near Jamia Cloth Market in Karachi.  I was only a law student and the sleaziness in the air was palpable.  Instead of diligently collecting evidence against the accused, they were keen to test the rape victim for virginity.  Court cases are replete with misogynist references to the chastity of a rape victim.   In Rafiq Ahmed, a Lahore High Court judge, stated: “Hymen of victim was ruptured at 3, 4, 5, 6, 7, 9 & 11 o’clock, which was suggestive of the fact that victim was a woman of easy virtue.”  Sadly, the case is not from 1860, but 2012.

How do we stand by?  You can say it Jolly LLB Boman Irani style or with Hina Jilani’s confidence.

Such language is unacceptable for a senior court.

Source: NDTV

Photo: NDTV

About Abira Ashfaq

Abira Ashfaq is a lawyer and a law teacher who will write for various reasons including but not limited to the following: food, ideology, and five rupees.

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