Justice Delayed Is Justice Denied
Injustice anywhere is a threat to justice everywhere and this piece of writing aims to act as an eye opener for those seeking reform in the Lahore High Court.
I was very pleased when I heard that the honourable Chief Justice of the Lahore High Court after taking oath said that he would not tolerate any irresponsible behavior from any public functionary. I always admire his courageous demeanour and intellect, and his understanding of judicial review powers exercised under Article 199 of the Constitution. To be honest Chief Justice Syed Mansoor Ali Shah is considered amongst the lawyers’ fraternity as a person who is passionate and driven about taking initiative on giving judgments that have been leading to the development of jurisprudence. His Lordship is a judge who always shows spirit in reforming things, which leaves the impression on the bar that no one is above the law irrespective of his or her class, creed or position in society. The question arises as to why he is among the very few who take up challenges and dispense justice. Does it require the willpower of a superhero to dispense justice? Why don’t all judges delve deeper into the issues for the development of law?
These may come off as punitive questions but Chief Justice may be surprised to know that other judges nowadays are reluctant in deciding cases of public importance. Let me give an example of the outgoing honourable Chief Justice. A larger bench had been constituted to decide whether an inquiry tribunal report of Justice Ali Baqar Najfi, regarding the incident at Model Town Minhajul Quran in which fourteen innocent people lost their lives, should be made public or not. More than two years have lapsed but the issue remains undecided. Even appearing on behalf of the petitioner as counsel, I myself gave an application of early hearing and was shocked that the former Chief Justice had dismissed it and had also refused to fix the date. My question is, was it not a matter of public importance? I shall not comment on the court proceedings because the larger bench constituted was always hesitant in deciding the issue. The writ petition number is 22334-14.
In another case number 4311-16, regarding the sales tax levy on petroleum products, I was deeply disappointed that when I gave an application of early hearing, the honourable judge refused to fix the date by giving an observation that the issue was not of public importance. In rebuttal I enquired as to what else could have been an issue of public importance if the levy of sales tax on petroleum products without the approval of Parliament had not attained significance as being a matter of public interest. Every practising lawyer would be aware that applications for early hearing are normally allowed instantly without any objection.
Decision by the same honourable judge is also being delayed in case number 35720-15 regarding the issue of Public Accounts Committee (PAC) where the government of Punjab is unwilling to present district government audit accounts before the House (Punjab Assembly) and PAC. Even the parawise comments (comments and replies in paragraph format) filed by the Auditor General of Pakistan and Governor of Punjab support the assertion of the petitioner. Yet on every date of hearing, instead of an order being passed or effective directions being given to the Government of Punjab, the issue is still lingering as if PAC has little or no relevance. At present there are irregularities worth Rs.200 billion and if PAC becomes effective, the taxpayers’ money may be recovered. But since there seems to be a disinterest in deciding the issue, the day is not far when the writ petition would become totally infructuous, as the next elections are also nearing and due in 2018.
Chief Justice Shah has always supported the principles of democracy, egalitarianism and good governance in his observations and his reported judgments are worth reading, but what if the dilatory tactics by others become an impediment in the dispensation of justice and the implementation of democratic principles and good governance? It would be highly unsatisfying.
Two months ago the federal government imposed a ban on the film ‘Maalik’ and I on behalf of a petitioner filed writ number 14322-16 to set aside that ban, as the censorship issue does not fall within the ambit of the federal government – its jurisdiction is vested with the provinces after the Eighteenth Amendment to the Constitution of Pakistan. Even otherwise there was no justification for imposing a ban as it negated freedom of expression and I also provided before the honourable judge, numerous references of Indian judgments, especially of the famous Andhra Pradesh High Court’s judgment in which the ban on the film ‘Da Vinci Code’ was set aside. The principle of locus poententiae was also relevant according to which, once legal rights have been created and the film has been allowed to be screened then it cannot be banned. It has now been over than a month and the judgment has still not been announced yet. I personally requested the honourable judge that if the decision is delayed any further, trust in the professionalism of the judiciary would be lost since such delays would hamper the growth of the entertainment industry as filmmakers would be hesitant in making a film on social issues in the future. The decision is still pending.
Readers might think that writing this article is perhaps an impractical mistake and that I might destroy my career by writing such a piece. But I have strong faith in Allah Almighty. Judges must also understand it. They are also answerable to Allah and not to the people at the helm of the affairs. If judges have to play dilatory tactics to keep the government satisfied then what is the difference between a judge and a civil servant? The point is that if honourable judges become stooges then who shall guard the guards? And that day is not far when every citizen will wonder how law is being practiced in a lawless state. There is a well known saying that “judges are not final because they are infallible. Judges are infallible only because they are final”
It was a case which made headlines last summer in the first week of May. Khadija Siddiqi, a 21-year-old law student in Lahore, Pakistan, was stabbed 23 times in broad daylight on a busy road while she waited to pick up her 6-year-old sister from school.
The attacker, Shah Husain, the son of a well-known lawyer in the city, was Siddiqi’s classmate at a private, local law school.
After a harrowing wait that stretched out for over a year, justice was finally served when Husain was delivered a seven year sentence on July 29, for attempted murder.Enjoying this article? Click here to subscribe for full access. Just $5 a month.
“Even though it has been a long journey full of different trials, my wounds still haven’t healed. The scars continue to haunt me. Initially, it was very tough; I had 23 lacerations and wounds – my neck has a calligraphy of stitches. They were the most tormenting and torturous days of my life,” Siddiqi said, speaking about her painful rehabilitation process in hospital.
“I couldn’t open my mouth to speak or eat. Sometimes I was completely numb, at other times I would scream in pain, crying that the stitches in my neck had come undone,” stated Siddiqi.
Yet, despite the trauma of her ordeal and the knowledge that her attacker walked a free man, Siddiqi constantly felt a deep sense of gratitude for being granted a second lease on life. Death for Siddiqi was a narrow escape; it was nothing short of a miracle that she had survived, unlike many other Pakistani women who have continued to fall victim to crimes of honor and abuse.
But Siddiqi’s fight for justice was by no means an easy feat. This was primarily because Husain’s father, Tanvir Hashmi, was a prominent part of the legal fraternity in Lahore. Over the course of the year following the attack, Siddiqi revealed that she and her family were repeatedly intimidated to drop the charges.
“They would bring along a platoon of lawyers who’d pressurize and abuse our counsel,” said Siddiqi, adding that the opposition would then consistently use delaying tactics to extend the hearing date. “Many times I would witness how the criminal was being given the unfair advantage of being a lawyer’s son, hence the delay in justice.”
“[Husain’s] family were sure that they would get away with this heinous crime because they could easily control the courts,” elaborated Siddiqi, “They would tell us that scoring bail is not difficult for them, and that all the litigation processes would just exhaust us and justice would not be served and that we would meet them at the same court next year.”
Khadija Siddiqi during her recovery with a loved one. Image courtesy of Khadija Siddiqi.
But did the constant threats ever influence Siddiqi and her family to consider dropping the case, in fear of a backlash that could’ve been taken a step further?
“There were times my morale would just shatter and we’d consider compromise, but then again, they had no remorse or guilt and that attitude made us even more steadfast in bringing the criminal to his legitimate end,” she responded.
Salman Safdar, a prominent criminal lawyer in the city who took on Siddiqi’s case as the lead prosecutor in March this year, stated; “[The fact that] the attacker’s father was a leading lawyer made the task of prosecution literally impossible.”
However, having appeared in over a thousand murder cases since the year 2000, Safdar said he accepted Siddiqi’s case as a challenge and immediately set out to form a team of lawyers to devise a powerful plan of action.
“Women [in Pakistan] usually give up seeking justice given the impediments and stumbling blocks that they have to overcome to get justice,” he stated, “But Khadija remained grounded despite being exposed to humiliation and [shame] that she faced when the defense purposely attempted to confront her with scandalous and objectionable material that had no nexus with the case.”
The pressure tactics, Safdar revealed, were meant to compel his client to drop the case altogether. “She stood firm and had family support. [Khadija] has proved that seeking justice may be difficult but not impossible,” the lawyer stated firmly.
Having attended two proceedings, along with many others from the young lawyer’s community in Pakistan — who would show up at court in solidarity for Siddiqi — Fatima Ayub said that watching the opposing counsel rake up vulgar propaganda in the courtroom against Siddiqi was hard to witness.
“I, along with five other females in the entire session’s court magistrate, including [Siddiqi’s] mother, attempted to stand strong throughout the ordeal but we could only look at [Siddiqi’s] deeply pained, frustrated expressions to truly realize that this had been her life for the past year or so,” Ayub stated, “I can only begin to imagine the extent of personal and even physical onslaught that has plagued any female body that has dared to enter the premises of a lower/civil court in Pakistan unguarded. The stereotype of deeply-rooted systemic patriarchal conditions characteristic of our legal system stands so because it is rooted in cold truth.”
Given the grueling process and the subsequent lack of timely action against the accused, did it make Siddiqi bitter about the legal system in the country?
“Not at all,” she ardently responded “Rather, it has prepared me to enter boldly into the legal fraternity and fight for the truth. There are black sheep in every institution and the black sheep of the legal fraternity are all supporting the criminal; therefore we can’t blame our legal system for this miscarriage in justice. We need to change the well-established perspective generated over the years in Pakistanis that justice is never served here.”
Currently in her final year of an LLB (Hons) degree, Siddiqi also works as the project development head at a non-profit women’s empowerment campaign, SHE, in addition to being a member of the National Youth Assembly.
Khadija Siddiqi giving a speech at a women’s empowerment event in Lahore. Image courtesy of Khadija Siddiqi.
“The powerful, whether in physical strength, authority or wealth, seem to have a go-ahead to live life on their own terms without any sense of accountability,” Siddiqi said, when questioned about the justice system in Pakistan, “The [masses] accept [their] fate in silence – why? In a patriarchal and male chauvinistic society like ours, it’s really hard for a girl in my position to stand up against injustice and fight for my infringed rights; especially when the other party can easily use their influence in the courts.”
Disclosing that Siddiqi would often be approached by people in court asking her to fight their cases, the young law student said that justice today in Pakistan has become incredibly expensive, so much so that it compels one to abandon the pursuit for justice.
“I am not a victim, but a strong, honorable woman who has the capacity and courage to overcome any hurdles or barriers in her life and move forward,” Siddiqi said, “Not only am I rising above the waters myself, I’m also gearing myself to help other girls around me in similar situations. I’m very blessed with a very supportive and hopeful family who are excellent role models who have seen me through the most difficult period of my life. I want to be a similar role model for those in need of one. Justice for me is not only getting the perpetrator behind bars, it is to set a precedent case, so that next time no one even thinks of taking such a step.”
Sonya Rehman is a journalist based in Lahore, Pakistan.