Saturday, August 22, 2009

Are Pakistan's Uncivil Lawyers above the Law?

After elevating the lawyers to very high stature, the "civil society" including foreign-funded NGOs and their media and politician cheerleaders in Pakistan have recently witnessed a string of unprovoked physical attacks by lawyers on law-enforcement officials and media men. While some of the lawyers and their supporters dismiss such incidents as isolated and involving only a few bad apples, the fact is that such violent behavior has repeatedly been displayed by Pakistani lawyers, particularly in Lahore, for at least two years or more. In the last month, there have been 18 cases of assaults carried out by lawyers in Lahore alone, according to superintendent Sohail Sukhera of Lahore police force. "In one case, lawyers broke the leg of a police inspector. Others have had their skulls exposed when lawyers have hit them on the head with stones or chair legs. It's really uncalled for."

While violence by lawyers has grown in terms of numbers of incidents and intensity, the phenomenon is not new. First, during anti-Musharraf protests in Islamabad in 2007, there were repeated scenes on television that showed anti-Musharraf lawyers viciously beating up a few Musharraf supporters carrying pro-Musharraf placards outside the Supreme Court building.

Then, there was an attack on former minister Sher Afgan Niazi by lawyers outside Lahore High Court last year. While there was no expectation from the politicians to be truthful and take responsibility for lawyers violence, it was a pleasant surprise to see Mr. Aitazaz Ahsan show a sense of responsibility by resigning. However, barely 24 hours after the resignation, Mr. Ahsan backtracked and used "conspiracy theories" and "invisible hands" and placed the blame on his favorite target: President Musharraf.

Recently, media men and policemen have been the target of violence in Lahore. As the BBC reported recently, "These days, their footage is all over the Pakistani news channels. Lawyers, dressed in black suits and ties, on the attack. Every few days seem to bring a new incident; the beating of a policeman; a scuffle with members of the press outside the high court in Lahore."

Let's examine the reality of the "esteemed" legal profession in Pakistan in a little more depth:

1. After claiming the restoration of the rule of law in Pakistan as the goal of their protest movement against Musharraf and Zardari, the lawyers have repeatedly proved by their behavior time and again that they think they are above the law.

2. In most international opinion surveys on professional ethics, lawyers consistently rank near the bottom. They are slightly below the journalists and above the politicians and used car salesmen in how they are perceived by the general public worldwide. If the recent success of the movie "Michael Clayton" is any indication, the public perception of lawyers breaks down into four archetypes, each represented by a character in the movie: brutal (Sydney Pollack), disappointed (George Clooney), psychotic (Tom Wilkinson) and criminal (Tilda Swinton). It’s probably no coincidence that Clayton’s only Oscar went to Swinton.

3. According to a Transparency International survey, the judiciaries of India and Pakistan fare among the worst, with 77 per cent and 55 per cent of respondents in the two countries, respectively, describing the judicial system as corrupt.

4. In most of the rest of the world, the judges are generally perceived as honest. But not in South Asia. According to Transparency International surveys, the Pakistani judiciary is considered the third most corrupt institution after police and power departments. Even the taxation and customs people are regarded as more honest than the judges. Among the four provincial governments, the Transparency survey ranks Punjab (the hub of the lawyers movement) as the most corrupt and NWFP the least corrupt.

5. Pakistani judiciary, including Justice Iftikhar Chaudhry who legitimized Musharraf's overthrow of Nawaz Sharif's elected government in 1999 by taking the oath of office under PCO-I, has a long and inglorious history of undermining the laws and the constitution of Pakistan. This scribe has had personal experience with the individual judges of the highest courts showing little respect for the rule of law and engaging in corrupt practices and nepotism in their own personal lives for petty gains.

The lawyers' violence is becoming so ugly that the media people, who were lawyers' closest allies opposing Musharraf, have now turned against the lawyers themselves. "The media is trying to show all lawyers in a bad light. And there are others who benefit through making us look bad," complains Raja Hanif, 33, a member of Lahore High Court Bar. However, Mr. Hanif says nothing about any disciplinary action the lawyers' body should take to punish the misbehaving lawyers for their unprofessional conduct.

Now that Justice Iftikhar Chaudhry, known for frequent suo moto actions, is back on the bench as the chief justice of Pakistan, it's important for him to act to preserve the dignity of the legal profession in Pakistan.

Here's a videoclip of lawyers attacking a police officer in Lahore:

Related Links:

Long March or Big Farce?

Has Pakistan's Lawyers Movement Gone Awry?

Lawyers Liars!

Pakistan's Lawyers above the Law?


Riaz Haq said...

Judges at India's Supreme Court have agreed to make public details about their financial assets following an intense public debate. Analyst Manoj Mitta says a lot more needs to be done to make India's judiciary transparent, according to the BBC.

Given the circumstances in which judges of India's Supreme Court finally agreed to make declarations of their assets public, it seems to be a case of too little, too late.

A lot more needs to be done to restore the huge amount of credibility they have lost in recent months over this issue of transparency.

The decision taken by the 23 sitting judges at a special meeting this week seems to be more a damage control exercise than a change of heart.

This is because Chief Justice KG Balakrishnan, for instance, has said nothing yet on whether he has changed his mind about his oft-quoted fear that the disclosure of assets might prompt people to harass judges with frivolous allegations.

Stiff resistance

Reports suggest that the declarations would be put on the Supreme Court's website with the rider that no questions about those disclosures would be entertained.

This gives the impression that, despite their decision to go public with details of their wealth, judges still want the kind of blanket immunity that an abortive government bill had sought to confer on them while trying to keep their declarations confidential.

The anti-transparency bill, which the government was forced to defer earlier this month because of stiff resistance in the upper house of parliament, said that "no judge shall be subjected to any inquiry in relation to the contents of the declaration".

In any event, judges would be mistaken if they believed that the monkey of transparency would get off their backs once the declarations of their assets were made public.

Former Chief Justice JS Verma sounded overly optimistic when he said that their acceptance of the public demand for disclosing assets would end the "unsavoury debate engulfing the judiciary".

It is more likely that the debate will intensify as more and more contradictions and infirmities in the most secretive organ of the state come to surface.

Riaz Haq said...

Here's a report on corruption in Pakistan's judicial system:

Individual Corruption

The judicial system in Pakistan is regarded as one of the most corrupt institutions in the country. The vast majority of people that interacts with members of the judicial system encounters corruption. People regard the courts as a place where only wealthy and influential individuals can afford to pay for, and thereby obtain, fair trials. Average citizens often find themselves forced to resort to informal dispute resolution mechanisms (panchayat) rather than getting themselves involved with the official court system. The panchayat is meant to be used as a secondary institution in order to circumvent the costs and long delays in the courts. Particularly in family and land disputes, the panchayat is being utilised as a primary institution. Normally, it is only if the panchayat cannot settle the dispute that the case will be taken to a formal court.

As English is the official language in Pakistan's justice system, the vast majority of the population does not understand what is going on in the courts. They depend on advice from others to help them through a trial. According to Transparency International Pakistan 2007, however, corruption also flourishes among lawyers. In order to extract more money from litigants, lawyers will sometimes provide advice that will delay or prolong the case, and sometimes even when the case should have been dismissed from the outset.

Business Corruption

According to Freedom House 2008, the judiciary in Pakistan is regarded as one of the institutions most plagued by corruption, particularly in relation to the lower courts. Hence, companies exhibit low trust in the judicial system and, according to Transparency International Pakistan 2007, it is not uncommon for judges as well as lawyers to solicit bribes. Contract enforcement can be problematic given the domestic court system's inefficiency and lack of transparency. Companies should be aware that the judicial system operates at a very slow pace.

Riaz Haq said...

Here's a report on corruption in India's judicial system:

Individual Corruption

The judiciary, particularly at the lower levels, is reportedly rife with corruption, and most citizens have great difficulty securing effective and fair case resolution through the courts. Citizens report that court procedures are very slow and complicated and that the court system fuels the use of bribes and other kinds of influence-peddling. People give bribes to obtain a favourable judgment, but bribes are also used to influence public prosecutors. Bribes are reportedly paid to move a case more rapidly through the system. Generally, the majority of users pay bribes directly to lawyers and court officials, but middlemen, public prosecutors, and judges are also listed as common recipients of bribes.

According to India's Chief of Justice Mr. Balakrishnan, the public distrust in the judicial system has caused a decrease in the number of civil disputes brought before the courts in favour of more informal types of dispute resolution.

Business Corruption

There are indications that when interacting with the judiciary, companies are faced with the same problems of cumbersome bureaucracy and corruption as ordinary citizens. The court system is severely backlogged and understaffed and, according to Freedom House 2008, there are currently more than 30 million civil and criminal cases pending - many of these being disputes involving companies. Although computerisation has enhanced the efficiency of the courts, enforcing contracts is still so time-consuming that the World Bank & IFC Doing Business 2009 reports that India is close to the worst economy in the world in terms of enforcing commercial contracts. In spite of such initiatives as the International Centre for Alternative Dispute Resolution (ICADR), companies continue to deal with a cumbersome bureaucracy. According to Transparency International 2007, these complicated legal procedures fuel the use of bribes in the justice system as a whole.

Political Corruption

The higher judiciary in India is usually considered to be more clean and transparent than the lower levels of the judiciary. According to Transparency International 2008 the Supreme Court is taking both political and general corruption seriously and bringing the issues into its judgements. However, there are but few recent examples of corruption and political protection of High Court and Supreme Court judges involved in problematic cases of judicial favours. In recent years, judges have initiated several contempt-of-court cases against activists and journalists, raising questions about their misuse of the laws to intimidate those who expose the behaviour of corrupt judges or question verdicts. Some observers report that the appointment of judges is not entirely free from political interference, although other observers estimate that India performs well in relation to independence of judicial institutions. As for public prosecutors, there are reports of vacancies being filled by a sort of 'auction process' where the person paying the highest bribe is hired. According to Transparency International 2007, evidence from specific cases indicates that the judicial system occasionally protects persons close to the party in power. Furthermore, it has been observed that corruption in justice institutions is systemic due to the high level of discretion in the processing of paperwork during trials. This means that court clerks, prosecutors and police investigators frequently misuse their power without fear of repercussions.

Riaz Haq said...

LA Times has a story by Alex Rodriguez on the thuggish behavior of Pakistani lawyers in Lahore titled "No joke, these Pakistani lawyers are thugs"

The nation's lawyers were seen as champions of democracy during anti-Musharraf protests, but videotaped assaults by some against police and journalists threaten to knock them off that pedestal.

Reporting from Lahore, Pakistan - Television reporter Shaheen Attique and his cameraman, Nasir Masood, were finishing a live shoot on the steps of a Lahore courthouse when the gang strode menacingly toward them.

Before Attique and Masood could dart away, the thugs pounced. Fists rained down from every direction. Outnumbered 25 to two, the journalists could do nothing more than tense up and take it.

"We'll teach you a lesson!" Masood heard one of the attackers say just before someone thwacked him in the head with a club.

What distinguished the onslaught from the everyday assault and battery in this chaotic city of 10 million was what the thugs were wearing: black suits, white button-down shirts and black ties. They were lawyers, meting out the kind of street justice you'd expect to see in a barrio back alley.

And Attique and Masood's crime? A day earlier, their channel, City-42, aired footage of a band of lawyers pummeling a Lahore police official outside the same courthouse.

In a country in desperate need of heroes, Pakistan's lawyers have been revered as the vanguard of the grass-roots movement that helped end the military rule of Gen. Pervez Musharraf and reinstate Supreme Court Chief Justice Iftikhar Mohammed Chaudhry after his illegal removal by Musharraf in 2007.

Riaz Haq said...

Here's a report about India's judges declaring their assets as part of the transparency campaign:

New Delhi, Nov 2 (IANS) Bowing to the popular demand and after a Delhi High Court ruling, which they have contested, the Supreme Court judges, led by Chief Justice of India K.G. Balakrishnan, Monday declared their assets. The CJI put the value of his assets at around Rs.18 lakh.

The judges’ assets were posted on the apex court’s official website Monday evening.

Though the declaration followed a Delhi High Court ruling in September, the apex court website said the judges were voluntarily making public the assets they held.

About Justice Agrawal’s decision to declare his assets, the apex court said the details of his assets have been “uploaded on the website on his special request”.

The assets declared by Chief Justice K.G. Balakrishnan were around Rs.18 lakhs, including his two-bedroom flat in Ernakulam worth Rs.5.75 lakh, his vacant residential plot in Faridabad measuring 444.44 sq yard valued at 4.50 lakh, and his native house in Thrikkakara South village in Kerala.

The CJI also declared other landed properties in Kerala, worth Rs.3.5 lakh and Rs.4.33 lakh. He said his wife has gold jewellery weighing 20 sovereigns and an old Santro car of 2000. He said he has no investment in shares or fixed deposits.

The apex court’s second senior most judge, Justice S.H. Kapadia, appeared to be richer than the CJI.

Justice Kapadia put the value of his declared assets at over Rs.48 lakh. The declared assets include flats, buildings, shares, mutual funds, fixed deposits, provident funds. He said he owned no vehicle.

The third senior most judge, Justice Tarun Chatterjee, declared cash worth around Rs.3 lakh, but he said that he has other properties like vehicles, gold jewellery of his wife and some ancestral property in Kolkata. Justice Chatterjee’s vehicles include a Chevrolet Tavera and a Honda Seil.

The court’s fourth senor most judge, Justice Altamas Kabir declared assets of around Rs.80 lakh, including ancestral property, besides LIC policies and saving accounts.

The fifth senior most judge, Justice R.V. Raveendran, gave a detailed account of his assets running into five pages with the exact number of his shares, debentures etc.

According to the declaration, he owns shares in about 60 companies, including Reliance Group firms belonging to both Mukesh and Anil Ambani. He is also hearing a case on gas supply disputes between the firms of the two Ambani brothers and the government.

Riaz Haq said...

The Supreme Court of Pakistan has unanimously declared NRO null and void ab initio, according to Dawn News:

ISLAMABAD: The Supreme Court has declared the controversial National Reconciliation Ordinance (NRO) null and void in a short order.

In a landmark decision, the apex court unanimously decided that the ordinance was unconstitutional.

All old cases that had been dismissed under the NRO stand revived and can now be reopened as per the court orders.

The court said that all orders that were passed and all acquittals under the NRO were illegal and never existed.

The apex court in its order also said that all convictions that were held prior to the enactment of the NRO stand revived as well.

Now the Zar dari camp is expected to argue that, under the constitution of Pakistan, President Zardari is immune from prosecution as long as he is in office.

While the final outcome of the cases and the fate of corrupt politicians and bureaucrats remains uncertain, I welcome the fact that the Supreme Court of Pakistan's verdict has refused to legitimize corruption in Pakistan. It is a giant step toward strengthening rule of law and restore confidence in the judiciary.

Riaz Haq said...

Here is a recent Op Ed in Wall Street Journal critical of Justice Chaudhry:

When U.S. President Barack Obama sharply challenged a recent Supreme Court decision in his State of the Union address, prompting a soto voce rejoinder from Justice Samuel Alito, nobody was concerned that the contretemps would spark a blood feud between the judiciary and the executive. The notion that judges could or would work to undermine a sitting U.S. president is fundamentally alien to America’s constitutional system and political culture. Unfortunately, this is not the case in Pakistan.

Supreme Court Chief Justice Iftikhar Mohammed Chaudhry, the country’s erstwhile hero, is the leading culprit in an unfolding constitutional drama. It was Mr. Chaudhry’s dismissal by then-President Pervez Musharraf in 2007 that triggered street protests by lawyers and judges under the twin banners of democracy and judicial independence. This effort eventually led to Mr. Musharraf’s resignation in 2008. Yet it is now Mr. Chaudhry himself who is violating those principles, having evidently embarked on a campaign to undermine and perhaps even oust President Asif Ali Zardari.

Any involvement in politics by a sitting judge, not to mention a chief justice, is utterly inconsistent with an independent judiciary’s proper role. What is even worse, Chief Justice Chaudhry has been using the court to advance his anti-Zardari campaign. Two recent court actions are emblematic of this effort.

The first is a decision by the Supreme Court, announced and effective last December, to overturn the “National Reconciliation Ordinance.” The NRO, which was decreed in October 2007, granted amnesty to more than 8,000 members from all political parties who had been accused of corruption in the media and some of whom had pending indictments.

While some of these people are probably corrupt, many are not and, in any case, politically inspired prosecutions have long been a bane of Pakistan’s democracy. The decree is similar to actions taken by many other fledgling democracies, such as post-apartheid South Africa, to promote national reconciliation. It was negotiated with the assistance of the United States and was a key element in Pakistan’s transition from a military dictatorship to democracy.

Chief Justice Chaudhry’s decision to overturn the NRO, opening the door to prosecute President Zardari and all members of his cabinet, was bad enough. But the way he did it was even worse. Much to the dismay of many of the brave lawyers who took to the streets to defend the court’s integrity last year, Mr. Chaudhry’s anti-NRO opinion also blessed a highly troubling article of Pakistan’s Constitution—Article 62. This Article, written in 1985, declared that members of parliament are disqualified from serving if they are not of “good character,” if they violate “Islamic injunctions,” do not practice “teachings and practices, obligatory duties prescribed by Islam,” and if they are not “sagacious, righteous and non-profligate.” For non-Muslims, the Article requires that they have “a good moral reputation.”

Riaz Haq said...

WSJ Op Ed Contd...

Putting aside the fact that Article 62 was promulgated by Pakistan’s then ruling military dictator, General Zia ul-Haq, relying on religion-based standards as “Islamic injunctions” or inherently subjective criteria as “good moral reputation” thrusts the Pakistani Supreme Court into an essentially religious domain, not unlike Iranian Sharia-based courts. This behavior is profoundly ill-suited for any secular court. While Article 62 was not formally repealed, it was discredited and in effect, a dead letter. The fact that the petitioner in the NRO case sought only to challenge the decree based on the nondiscrimination clause of the Pakistani Constitution and did not mention Article 62 makes the court’s invocation of it even more repugnant. Meanwhile, the decision’s lengthy recitations of religious literature and poetry, rather than reliance on legal precedent, further pulls the judiciary from its proper constitutional moorings.

The second anti-Zardari effort occurred just a few days ago, when the court blocked a slate of the president’s judicial appointments. The court’s three-Justice panel justified the move by alleging the president failed to “consult” with Mr. Chaudhry. This constitutional excuse has never been used before.

It is well-known in Islamabad that Mr. Zardari’s real sin was political, as he dared to appoint people unacceptable to the chief justice. Since consultation is not approval, Mr. Chaudhry’s position appears to be legally untenable. Yet Mr. Zardari, faced with demonstrations and media attacks, let Mr. Chaudhry choose a Supreme Court justice.

There is no doubt that the chief justice is more popular these days than the president, who has been weakened by the split in the political coalition which brought down Mr. Musharraf. Former Prime Minister Nawaz Sharif is now a leading opponent of the regime. There is a strong sense among the Pakistani elites that Justice Chaudhry has become Mr. Sharif’s key ally.

The fact that Mr. Chaudhry was a victim of an improper effort by former President Musharraf to replace him with a more pliant judge makes his current posture all the more deplorable. His conduct has led some of his erstwhile allies to criticize him and speak of the danger to democracy posted by judicial meddling in politics. The stakes are stark indeed. If Mr. Chaudhry succeeds in ousting Mr. Zardari, Pakistan’s fledgling democracy would be undermined and the judiciary’s own legitimacy would be irrevocably damaged. Rule by unaccountable judges is no better than rule by the generals.

Riaz Haq said...

Here is a NY Times Op Ed by Nobel Laureate Paul Krugman on questions about rule of law in US foreclosures crisis:

The accounting scandals at Enron and WorldCom dispelled the myth of effective corporate governance. These days, the idea that our banks were well capitalized and supervised sounds like a sick joke. And now the mortgage mess is making nonsense of claims that we have effective contract enforcement — in fact, the question is whether our economy is governed by any kind of rule of law.

The story so far: An epic housing bust and sustained high unemployment have led to an epidemic of default, with millions of homeowners falling behind on mortgage payments. So servicers — the companies that collect payments on behalf of mortgage owners — have been foreclosing on many mortgages, seizing many homes.

But do they actually have the right to seize these homes? Horror stories have been proliferating, like the case of the Florida man whose home was taken even though he had no mortgage. More significantly, certain players have been ignoring the law. Courts have been approving foreclosures without requiring that mortgage servicers produce appropriate documentation; instead, they have relied on affidavits asserting that the papers are in order. And these affidavits were often produced by “robo-signers,” or low-level employees who had no idea whether their assertions were true.

Now an awful truth is becoming apparent: In many cases, the documentation doesn’t exist. In the frenzy of the bubble, much home lending was undertaken by fly-by-night companies trying to generate as much volume as possible. These loans were sold off to mortgage “trusts,” which, in turn, sliced and diced them into mortgage-backed securities. The trusts were legally required to obtain and hold the mortgage notes that specified the borrowers’ obligations. But it’s now apparent that such niceties were frequently neglected. And this means that many of the foreclosures now taking place are, in fact, illegal.

This is very, very bad. For one thing, it’s a near certainty that significant numbers of borrowers are being defrauded — charged fees they don’t actually owe, declared in default when, by the terms of their loan agreements, they aren’t.

Beyond that, if trusts can’t produce proof that they actually own the mortgages against which they have been selling claims, the sponsors of these trusts will face lawsuits from investors who bought these claims — claims that are now, in many cases, worth only a small fraction of their face value.

And who are these sponsors? Major financial institutions — the same institutions supposedly rescued by government programs last year. So the mortgage mess threatens to produce another financial crisis.

Riaz Haq said...

Here's a NY Times report on Pakistan's troubled criminal justice system:

LONDON — Pakistan’s troubled criminal judicial system has failed to prosecute several notorious figures living there over the years, including Hafiz Saeed, the militant leader with a $10 million American reward on his head, and Osama bin Laden.

But Pakistani justice has not been hesitant with Musa Khan, a 9-month-old boy who faces charges of attempted murder and whose relatives have spirited him into hiding.

In a case that has heaped ridicule on the under-resourced police force, the baby boy was charged alongside four adults in connection with a violent protest in a Lahore slum in February. Slum residents threw stones at gas company workers who had tried to disconnect households that failed to pay their bills, leading the police to charge an entire family with attempted murder, including Musa.

The absurdity of the case became apparent last Thursday when the screaming child was produced in court, and had to be comforted with a milk bottle as a court official recorded his thumbprint.

“He does not even know how to pick up his milk bottle properly — how can he stone the police?” his grandfather Muhammad Yasin said to news service reporters outside the courthouse.

On Tuesday, Mr. Yasin said the family had moved the child to nearby Faisalabad for safety reasons, citing “pressure” from the authorities.

The case has attracted ridicule in the news media and provided fresh fodder for critics of the country’s dysfunctional judicial system, which frequently appears to suffer from misplaced priorities.

Crude police tactics played a central role in the prosecution of Musa, who was charged in February alongside his father and grandfather following the attack on the gas company workers. Lawyers say that the Pakistani police often lodge exaggerated complaints against poor families as a form of collective punishment.

The matter is likely to be quickly dropped. Shahbaz Sharif, the chief minister of Punjab Province and brother of Prime Minister Nawaz Sharif, has ordered an inquiry into the incident. The judge in the case has ordered the police to produce an explanation for the charges.

The child’s lawyer has argued that children under the age of 7 cannot be prosecuted under Pakistani law. Musa remains free on bail until his next hearing, scheduled for Saturday.