A case for speedy justice

It is affirmed at all hands that alongside safeguarding the state's frontiers, the dispensation of justice is a government's foremost obligation. But, curiously enough, governments allocate infinitely more attention, energy, and money to defence than to the administration of justice.

Many state constitutions across the world reckon access to speedy justice as one of the citizen's fundamental rights. Yet, commentators on public affairs everywhere complain of the tardiness with which their judicial process moves. In our own case, Prime Minister Shaukat Aziz and his law minister claim to have the intention of making justice speedy. Politicians elsewhere make similar promises.

Courts in many countries have accumulated huge backlogs of pending cases. The number of undecided cases in the Indian courts, taken together, is said to exceed 30 million, about one third of which are criminal. The high courts have over 3.5 million and the Indian Supreme Court has over 20, 000 pending cases. I don't have corresponding figures for Pakistan, but our chief justice did say recently (December 10) that some 25,000 cases were pending in the Supreme Court.

How speedy is good enough? A motorist in America gets caught for speeding. The police officer, who has stopped him, gives him a "ticket," indicating the fine due, which is pre-determined. The driver can mail his cheque for the amount of the fine to the clerk of the relevant court, but he has the option of contesting the ticket in which case the judge settles the matter after hearing him and the police officer concerned. The proceedings hardly ever take more than half an hour.

In February 1993, the wife and mother-in-law of A.S. Anand, chief justice of India at the time, sued the government of Madhya Pradesh in a local civil court for the recovery of 40 hectares of land that had earlier been taken over by the state. The case was settled within five years. This was considered expeditious, for normally it could have gone on for 20 or more years. Litigation in civil courts is notorious for its slow movement. But sometimes even criminal cases take an incredibly long time to conclude.

A recent press report (November 30, 2004) referred to an unsettled criminal case initiated some 25 years ago against Mr Shibu Soren, a minister in the government of India at the time. In Pakistan, Asif Zardari remained in jail for eight years, and the charges against him are still pending in courts.

One reason why the wheels of justice move so slowly is that in many societies, especially the western, the volume of litigation has increased enormously during the last 50 or so years. Minor disputes or brawls that were once settled by the friendly intervention of friends and neighbours, or through negotiation and compromise, or simply let go, are now taken to court. Consider also that governments sue, and are sued by, private parties (individuals and corporations) much more often than before.

This increase has occurred in civil much more than in criminal cases. In many societies, including Pakistan, a large percentage of the crimes does not even get reported, because of the hassle the victim has to go through in dealing with the police.

It is commonly said in both Pakistan and India that the number of courts and judges must be increased to deal with the increased volume of litigation. India has about 11 courts per one million of population. The situation may be roughly the same in Pakistan. Western democracies, by contrast, have close to 100 courts for the same number of people. A related problem may be mentioned. At any given time, a substantial proportion of the authorized posts in various courts in India and Pakistan is lying vacant.

A few years ago, the high courts of India, together, could have had 670 judges but actually they were 163 short of their authorized roster. Many positions in the Pakistani courts also remain unfilled. The appointing authorities are in a position to know many months ahead of time when a judge will retire. Failure to appoint his successor promptly is simply incompetence on the part of those officials who manage the system.

It has been contended that intricate and cumbersome procedure, more than any shortage of courts and judges, is to be blamed for delay in the processing of court cases. That may be true, but those who would simplify the procedure must be cognisant of the fact that the procedure is what it is partly to protect the rights of the accused and respondents. Readers of Earl Stanley Gardner's novels will recall Perry Mason objecting to the prosecuting district attorney's questions to the witness on the ground that they are "irrelevant, incompetent, and immaterial," or that they call for an "opinion or conclusion" of the witness, or that they elicit "hearsay" evidence, all of which is inadmissible.

The "jirga" in the tribal regions of NWFP is well known for the promptness with which it settles disputes and punishes crimes. Unlike the jirga in Sindh and southern Punjab, which has become notorious for its inequity, the one among our Pukhtun tribes is reasonably well regarded. It includes some of the village elders and notables but it is open to all those who might wish to attend. In certain cases it admits an equal number of nominees from each side to the dispute. It settles issues according to the well-established tribal custom. We will say more about this institution shortly.

In the Anglo-Saxon tradition cases are heard and decided by judge and jury. It is the jury, consisting of the accused person's "peers," that determines his guilt or innocence. The judge conducts the trial (opening statements of the two counsel, their examination and cross-examination of witnesses, and their concluding arguments) and explains the relevant law to the jury. In case it finds the accused to be guilty, he explains to the jury the limits of the penalty it may impose in view of the mitigating circumstances, if any, that it may wish to consider.

The jirga among our Pukhtun tribes is not unlike the jury, except for the fact that it works without the direction of a judge and the intervention of lawyers. A great deal of criticism of the jirga in Sindh and southern Punjab has been voiced in recent years, and that for good reason. Critics maintain that it should be abolished. Considering that our judicial system is so slow-moving, it may not be a great idea to abolish the Pukhtun jirga which is not the object of condemnation as its Sindhi and Punjabi "counterparts" are.

In any case, if the jirga is allowed to remain in Sindh and Punjab, it should probably be reformed. Its membership and modus operandi may be regularized, its jurisdiction limited to certain specified categories of disputes and offences, and it may be required to implement the law of land and not its tribal custom. To the extent that the custom is benign, it may be made part of the law. It may be recalled that much of the English common law was, once upon a time, the ongoing custom of the land and its people.

Some of the frequently mentioned impediments to speedy justice may be noted. First, far too many writ petitions are filed in the higher courts, and many of them are said to be frivolous. They should be subjected to stricter scrutiny before they are admitted. Second, too many adjournments are allowed for reasons that are not good enough. The police should be forbidden to keep an accused in custody beyond a specified period of time (let us say, 30 to 60 days) before taking him to court, and if a viable case against him cannot be prepared by the appointed deadline, the charges against him should be dropped.

Lawyers, as a class, have little interest in speedy justice especially if they are paid by the hour or by the day. The longer it takes for a case to be settled the larger the amount in fees and expenses that they can bill their client. A strict limit should be placed on the time a lawyer may take to present his oral arguments. At the present time, they can take days to argue a case. The United States Supreme Court allows an attorney no more than 30 minutes to argue his case. All else he may put in his written brief.

If justice is to be made prompt and affordable, supplements to the existing apparatus need to be considered. A movement called "Alternative Dispute Resolution Mechanisms" began in the United States in the 1970s. As a result, some of the states have set up small claims courts to deal with cases involving obligations of less than $5,000.

A local "justice of the peace," a non-salaried functionary (somewhat like the "honorary magistrate" in pre-independence India) hears and settles the cases. The parties may or may not be represented by counsel. The plaintiff states his claim under oath, and in writing, and presents supporting evidence. The respondent presents his case, if he has one. The matter is settled usually in one hearing.

The attorney-general in Florida has instituted another system. Volunteers, trained in the arts of conciliation and mediation, act as hearing officers to bring about a settlement between the aggressor and the aggressed in minor criminal cases and between the plaintiff and the respondent in cases involving small claims. Apparently, the system is working well.

In April 2001 the government of India offered the states five billion rupees to establish "fast track" courts in each district to handle criminal cases involving "under trial" prisoners. It should be interesting to find how well these courts are functioning.

The feasibility of these alternative mechanisms for delivering justice in Pakistan deserves to be considered.

The writer is professor emeritus of political science at the University of Massachusetts at Amherst, USA.

Email: anwarsyed@cox.net

Talking out of turn

General Pervez Musharraf said the other day that elections would be held in October 2007 and no earlier. Chaudhry Shujaat Husain followed a day or two later, suggesting that they might be delayed even beyond that date. While seeking to assure their nervous supporters and warn protesting opponents, the president of the country and the president of the ruling party both seemed to have failed to realize that their utterances were contrary to the provisions of the Constitution of Pakistan.

Article 52 of the Constitution says: "The National Assembly shall, unless sooner dissolved, continue for a term of five years from the day of its first meeting and shall stand dissolved at the expiration of its term." Under Article 232, the parliament, by enacting a law, can extend the term of the National Assembly for a period not exceeding a year if the president is "satisfied that a grave emergency exists in which the security of Pakistan or any part thereof is threatened by war or external aggression or by internal disturbance."

Thus there is no way that elections can be put off beyond October 2007, and that too for not more than a year, unless a grave threat to the security of the country arises at that time, compelling the president to issue a proclamation of emergency. It is a gloomy forecast by the chief of a party which has ruled the country for five years and expects to rule for another three. In any case, a grave emergency in 2007 is too distant and uncertain a possibility with which to scare off the political rivals of today.

To dissolve the parliament before it has completed its term is a privilege that belongs to the prime minister. Under Article 58 of the Constitution the president is bound to dissolve the National Assembly if so advised by the prime minister. If the president tarries, the Constitution stipulates that it shall stand "dissolved at the expiration of 48 hours after the Prime Minister has so advised." The decision to cut short the term of the National Assembly and to hold elections before 2007, thus, rests with the prime minister, and not with the president of Pakistan, much less with the president of a faction of the Muslim League supporting him.

The statements of General Musharraf and Chaudhry Shujaat Husain on elections are a typical example of the assertion of authority by men in power which, they assume when the crunch comes, would somehow override the constitutional provisions.

The parties in the opposition show a similar disdain for constitutional propriety when they threaten to lay siege to Islamabad or bring the country to a standstill through mass agitation. That way they might succeed in creating chaos and paralysing the state machinery but would not be able to seize power which constitutionally is possible only through elections.

Repeated pronouncements of the ministers on elections loaded with hubris and taunts, as also the churlish threats held out by the opposition on the "uniform" issue, thus, tend to undermine public order, and project Pakistan as a destination unsafe for investors and tourists. Compare this with the situation in India, which according to a recent international survey reported in The Economist, inspires more business confidence than any other country.

The Constitution has been amended by the president incorporating his ideas of checks and balances at the top and empowering people at the grassroots with the full backing of Chaudhry Shujaat Husain. Neither they themselves nor their ministers, and party men therefore, should now be speaking or acting against the scheme of elections envisaged in the Constitution. Whether the National Assembly is to complete its term or be dissolved earlier in order to hold midterm elections is a decision to be made neither by Musharraf nor by Shujaat Husain but by Prime Minister Shaukat Aziz at the appropriate time. They should not, therefore, be seen to impose their plans on the prime minister way ahead of events.

The MMA religious alliance is a party to the amended Constitution. The other parties in the opposition - the PPP and Muslim League (N) - have also acquiesced to it without conceding legitimacy. Their motives for agitation differ. The PPP and Muslim League (N) want early elections, the MMA does not. Learning from past experience and going by the current public mood - complacent or sullen - both groups would do well to build up public opinion in their favour rather than whip up anger against the government. Once the agitation is suppressed by force or fizzles out in the face of public indifference, neither will the president quit the army command nor will the prime minister feel compelled to call elections ahead of schedule.

The government on its part should also recognize the stark reality that the circumstances under which the Constitution has been amended and the president assumed office for five years would earn legitimacy only if endorsed by the people in a general election. The popular base of the government is too weak to sustain it for three more years. Pir Pagara may have been blunt but is right in saying that politics cannot be practised like commerce nor can it rest long on borrowed crutches.

The president appeared to be fully conscious of this position when he publicly spoke of national conciliation and wished all parties to join hands to form a government. That is as much an anathema to his ministers as are early elections. In both cases they would have to share power or lose it altogether. Resisting the wiles of the spooks and sycophants around him, the president must pursue his thoughts on national reconciliation, as without it he cannot win the war against terror nor implement his liberal agenda.

The MMA alliance whom Chaudhry Shujaat considers a "natural ally" of his Muslim League is ideologically opposed to Musharraf's political ideas and also to his military campaign against the foreign fighters taking shelter in the tribal areas. The PPP as a whole and elements in Shujaat's rival Muslim League that could be counted on for support are out of the loop - either in prison or on the run. The conciliatory effort may yield a government which is good for Musharraf and Shaukat Aziz and in the bargain also prove to be for the good of the people, at least until they get an opportunity to elect one of their own.

Revisiting 'Operation Condor'

Terrorists were murdering politicians, police and prominent citizens, kidnapping entire families for huge ransoms, blowing up power stations, blocking main roads. Major urban areas were thrown into chaos and paralysis. Iraq 2004? No. Latin America in the late 1960s and 1970s, an era everyone seems to have forgotten. Marxist urban guerillas were destabilizing Argentina, Brazil, Chile, Peru, Paraguay, Uruguay and Bolivia, and fighting savage wars in Colombia, Nicaragua, Guatemala and El Salvador.

Chile's current left-leaning democratic government has attempted to lay renewed charges against retired General Augusto Pinochet, that nation's 89-year old former military ruler who crushed Marxist rebels in the 1970s.

Facing internal chaos and economic collapse caused by the Marxist guerillas, governments declared a "war on terrorism" and ordered their armies and security forces to crush the rebels by any necessary means.

Chile's armed forces overthrew the Cuban and Soviet-backed Marxist president, Salvador Allende, who had been elected with only 36 per cent of the popular vote, arrested thousands of leftists, tortured many, and killed 3,000 or more. In Argentina, the army killed or "disappeared" 20,000 leftists and tortured thousands more in what was known as the "Dirty War". Some 200,000 peasants died in Guatemala.

The intelligence agencies of Argentina, Chile, Brazil, Uruguay, Paraguay and Bolivia jointly launched Operation Condor to root out Marxists at home and abroad. This notorious campaign of assassination, torture and mass arrests was patterned on CIA's Operation Phoenix during the Vietnam War in which 30,000 Vietnamese communists and sympathizers were "taken out", to use the current North American euphemism for cold-blooded murder.

After a decade of killing, torture, disappearances and mass arrests, Latin America's military crushed the Marxist "terroristas". Military regimes eventually gave way to democratic governments which, in the 1990s, began prosecuting military officers for crimes committed during the "Dirty War". General Pinochet, who, ironically, opened the way for democracy and prosperity in Chile, became the icon of military brutality.

The same "dirty war" process has been happening in the United States since 9/11. That attack, a massive criminal-political act, quickly led to a militarized response. President George Bush ordered US armed forces to invade Afghanistan, then Iraq, and attack Muslim militants and Mujahideen around the globe.

FBI documents recently revealed by the American Civil Liberties Union show the White House apparently gave the military and intelligence agencies carte blanche to use any means, including torture, to crush Islamic militancy. Many senior Latin American officers have been jailed or now face prison for massive human rights violations. Having been ordered to win the dirty wars, no questions asked, they are now paying the price for the shame and guilt felt by their homelands for using illegal tactics against Marxist rebels that were almost as vicious and murderous as those used by communist regimes against their opponents.

Senior members of the White House, Pentagon and national security agencies should think hard about the last "war on terrorism", how it corrupted Latin America, and brought patriotic, well-meaning soldiers and politicians to be charged as war criminals. So should Pakistan's security establishment as it wages its own "war on terror" against fellow Muslims.FBI agents, who are trained in law, wrote to the Pentagon and White House to protest torture of Muslims they witnessed in American-run prisons. They were clearly preparing for the day when those in Washington who authorized torture and murder are brought to book. - Copyright Eric S. Margolis 2004

Turkey's long way to EU entry

The European Union's historic decision to start membership talks with Turkey on October 3, 2005, looks set to dominate the political agenda in both the EU and Ankara for the next 10 months. The issue is about more than politics, however. Turkish accession is also igniting passionate debate in the board rooms and living rooms across the 25-nation Union, with Europeans deeply divided on the pros and cons of opening EU doors to a powerful, once-imperial Muslim country with which they have often clashed in the past.

An overwhelming majority of Turks are in favour of joining the EU, seeing the venture as proof of their country's European credentials. Turkish Prime Minister Recep Tayyip Erdogan received a hero's welcome when he returned home after securing the date for accession negotiations at the EU summit in Brussels on December 17.

European leaders, however, are having a much more difficult time explaining to a largely hostile public opinion just why they agreed to open Europe's doors to a Muslim nation which many fear will dilute Europe's cultural identity and, on a more practical level, mean a heavier financial burden on the Union's coffers.

Erdogan, already named "European of the Year" by the influential Brussels-based newspaper European Voice, is generally believed to have come out of the last-minute tussle with EU leaders over Cyprus with his dignity and reputation intact, perhaps even heightened. The same cannot be said, however, for many EU leaders.

Greek Cypriot President Tassos Papadopoulos has probably lost on most points. Papadopoulos tried but failed to ensure that Erdogan immediately recognize Cyprus by extending Turkey's customs union agreement with the EU to the 10 new states which joined the Union on May 1. When Erdogan refused to initial the agreement on December 17, Papadopoulos was told firmly by other EU states that they were not going to allow relations with Ankara to be jeopardized by Nicosia's last-minute demands.

Austria's disgruntled Chancellor Wolfgang Schuessel may have given a reluctant go-ahead to opening accession negotiations with Turkey at the EU summit but he immediately showed his true, sceptical colours, by announcing a special referendum on Turkish membership once negotiations with Ankara are over - an exercise which may take about 10 to 15 years.

Desperately striving to reconcile his own strong belief in the merits of Turkish EU entry with public wariness over the issue, French President Jacques Chirac insisted that Ankara's membership of the Union was not a foregone conclusion and that negotiations could be stopped at any time if Turkey slipped on crucial reforms. Chirac has also promised to hold a public referendum on Turkish membership at the end of negotiations.

Since unanimity is required, even if Ankara introduces all the reforms required by the EU, Austria and France could torpedo the entry bid at the last minute. Papadopoulos has also warned that Cyprus could still block Turkey's EU path if Ankara refuses to sign the customs union agreement by October.

Other EU leaders, however, have shown grace, courage and determination in dealing with Turkey. German Chancellor Gerhard Schroeder expressed his delight at the deal at the EU summit, telling reporters: "I am very happy. We have worked very hard for it." The chancellor, one of Ankara's biggest allies in its campaign to join the EU, told reporters it had been a "surprisingly quick and very good agreement," although he acknowledged the way ahead would be long and difficult.

Schroeder's backing for Ankara is based on several factors. Firstly, the German leader wants to win the votes of his country's 2.8 million Turks - many of them descendants of immigrant guest workers who moved there decades ago - and are major contributors to Germany's economy. But there is more to the German stance than mere domestic politics. Schroeder is convinced that given the current strains in transatlantic relations, Europe must build new alliances, including with Islamic nations like Turkey.

Schroeder's strategic vision is for a new-look Europe which can match America's might by forging new bonds with its southern and eastern neighbours. This is also partly the reason for Berlin's strong support for Russian President Vladimir Putin.

The chancellor does not have an easy job, however. A sizable portion of the German population as well as the conservative opposition parties have deep-seated reservations about Turkey's membership. Schroeder has said he hopes Germans will quickly understand they have more to gain than lose from Ankara's membership - pointing out, for instance, that Germany is already Turkey's biggest trading partner - but this will require a more determined effort by Berlin to "sell" Turkish entry to the general public.

For his part, British Prime Minister Tony Blair, also one of Turkey's strongest allies, sees offering membership to the large Muslim democracy as a signal to the Islamic world: "It shows that those who believe there is some fundamental clash in civilizations between Christians and Muslims are actually wrong, that we can work together and we can cooperate together," Blair said.

"This is a hugely important and welcome moment for Europe," Blair told the House of Commons recently, adding: "Muslim, Christian and other religious faiths can work together in democratic tolerance and multicultural societies."

Unlike in some other nations in Europe, Turkey's aspirations for EU membership enjoy cross-party support in Britain. Michael Howard, leader of the main opposition Conservatives, said having Turkey in the EU family would create an "invaluable bridge" between Europe and the rest of the world. He also said that the EU's decision to start accession talks - during what will be Britain's turn at the rotating EU presidency - lays to rest any suggestion that the European Union was anti-Islamic.

For many in Europe, Turkey provides desperately-needed proof that Islam and democracy are not incompatible - that Muslim states can also have a government committed to protecting human rights, women's emancipation, good governance and the rule of law.

The decision on Turkish entry is also expected to bolster the status of all Muslim immigrants in the EU by showing that the Union is a multi-religious, multicultural mix of people - and that Muslims can keep their religion and still be European.

Although Europe still remains divided over Turkey, the EU decision to start entry talks with Ankara is a sign of a new maturity among key EU policymakers. The challenge now is to start convincing European citizens that it is also in their interest to open Europe's doors to Turkey.

Ankara, meanwhile, must brace itself for a tough task ahead. Once the initial euphoria over the EU deal fades, Turkey faces years of painful political, economic, judicial and legislative reform to bring the country into line with EU standards.

Erdogan has said he is ready for the challenge. The Turkish prime minister is astutely using the goal of EU membership to take his country down the difficult road of reform. Turkey has carried out a "silent revolution" in meeting EU demands for political and economic reform, the Turkish leader said recently, adding: "We did this because we as the Turkish nation deserve these modern values...But this is just a starting point. The future will be more difficult and full of obstacles," he said.

"Turkey is a very different country now," Turkish Foreign Minister Abdullah Gul told supporters in Ankara soon after the EU summit decision. "We sense this inside Turkey. You see this when we're together with all our neighbours. You see this in Europe. In all the Muslim countries, in Arab countries, in the Caucasus, Turkey's position has changed."

"The important issue is that Turkey's direction has become definite. Turkey has entered a period of permanent stability," Gul said.

True, the focus for Turkey in the years ahead will be on stepping up efforts at political and economic reform. But it also has to do much more to improve its image and standing in Europe, by showcasing its modern culture, values and aspirations. Too many Europeans tend to think of still-traditional and ill-integrated Turkish immigrants when they are asked to give their opinion on Turkey's EU membership bid.

Significantly also, when it is ready to actually walk through the gates of Europe, Turkey will in fact be joining a very different EU.

In addition to Malta, Cyprus and the eight eastern European states which became EU members in May 2004, the Union will be opening its doors to Bulgaria and Romania in 2007 and to Croatia, probably in 2008. A number of other Balkan states are also waiting in the wings and could be inside the EU before Turkey is allowed to join.

Erdogan has proved that Turkey is ready and able to begin the difficult process of change needed to join the EU. Europeans are probably right when they say this should be an inspiration for other countries in the Muslim world.