Justice For The Rich

Justice For The Rich

The poor in this country are not only stricken by the grief and direct consequences of their low financial status, but face immense hardship in pursuing their legal rights. They cannot have access to courts; they cannot have access to good quality legal services or ethical legal services; and they simply cannot avail justice. And so their rights in this country continue to be violated. What they need to remedy thsis situation is what they don’t have – money.

People who have money do get justice in this country. Contrary to what ordinary people think, the Pakistani court system may be inefficient but it does give results just like any other legal system. Decisions are made, justice (whatever version) is served – but only for those who can afford it.

Good lawyers come at a cost. Lawyers need to make a living. And so, in order to justify taking on the work and burden of a case, lawyers charge a hefty fee. But not everyone is good enough to charge a hefty fee. The not-so-good lawyers charge a small fee and so market economics play out. However, not-so-good lawyers still need business. So who better to exploit than poor people who desperately need legal services but can only afford the lowest of fees.

These types of litigants (present in every society) usually do not know their legal rights especially against an exploitative lawyer and fall prey to a series of unethical and negligent practices by their service provider. Most of the time, the legal matters they entrust to their lawyers are not paid proper attention to, and poorly handled, and result in devastating consequences.

So who’s responsible for this? Two parties: the government and the lawyers’ community. The government is supposed to provide legal aid to such deserving litigants so that they can have access to good quality and ethical legal services at par with those who can afford them. Article 10A of the Constitution of Pakistan, 1973 gives every person a right to a fair trial. That right is meaningless if it does not include the right to have free legal representation if you can’t afford it. Under Article 37 it is the state’s responsibility to ensure inexpensive and expeditious justice. Under the law of the land, the Pakistan Bar Council (the central regulatory authority of lawyers) has made certain legal aid rules (PBC Free Legal Aid Rules, 1999). Those rules require the constitution of committees that will provide free legal aid.

Most of them don’t, in fact I doubt most of them even exist. I know – I checked. I wrote to Free Legal Aid Committees at the central and provincial levels. Only the committee of the Punjab Bar Council responded stating that it received no funds as required under the 1999 Rules and it had only started functioning in January 2015! The remaining Free Legal Aid Committees have not responded to my letter.

There is now, since 2011, another parallel government legal aid programme run through District Legal Empowerment Committees set up by the Law and Justice Commission of Pakistan (see the DLEC Rules, 2011). These committees, much like the Free Legal Aid Committees under the 1999 Rules, are supposed to entertain applications from deserving litigants and provide them with legal aid in order to enable them to obtain legal representation.

How successful are these committees? Only time will tell. Since no information was publicly available on the Law and Justice Commission’s website, I have written to them requesting information which should show their progress. I hope I will get an answer – and a more helpful one than the one received from the Punjab Legal Aid Committee.

So where does that leave the lawyers’ community. The government has certainly displayed its disinterest in addressing the issue. Globally in most jurisdictions, lawyers recognise they have a social responsibility. This translates into what is called ‘pro bono publico’, literally meaning ‘for the public good’, but now generally recognised to refer to professional legal work undertaken voluntarily and without payment or at a reduced fee as a public service.

Doing legal work on a pro-bono basis is not entirely non-existent in the legal community in Pakistan, but it is very low and selective. Lawyers in Pakistan usually provide pro-bono services to people they already know or are acquainted through someone they know – eg someone’s chauffeur, or cook, or maid-servant; usually people from the low income group whom they already know. However, pro bono does not exist at an institutional level nor is it truly part of the legal culture.

There are many charitable legal organisations in the country providing legal services to marginalised segments of society. Most of these organisations are funded by foreign donors and are limited in their agenda. This does not take anything away from the good work they do but the fact is that despite their efforts many poor and under-privileged ordinary Pakistani people do not have access to legal services of good lawyers who are both ethical and competent.

This culture needs to change. We need to create a pro-bono culture. The bar councils (at the central and provincial levels) need to incentivise such pro-bono practices, alongside implementing legal aid programmes in the country. However, most importantly, highly qualified professionals must realise that it is not their money with which they can contribute to society the most but their knowledge and skill.

Lawyers must take out time to take on a case of an indigent litigant, and provide them with high-quality legal services which they would to any paying client. And this must be done on a regular and consistent basis. Let us not forget that having a legal system is meaningless if one cannot access it. It is our responsibility to give others the opportunity to do exactly that.

 

Previously published in The News

The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.

Mian Sami ud Din

The writer is a Partner at Bhandari Naqvi Riaz. He is an Arbitrator on the SARCO Panel (nominated by Pakistan). He has been admitted as an Advocate of the High Courts in Pakistan and has been called to the Bar of England and Wales. He is also a Fellow of the Chartered Institute of Arbitrators and the Asian Institute of ADR. He specialises in international arbitration and acts as counsel in arbitration matters under the LCIA, ICC, SIAC, ICSID and UNCITRAL arbitration rules.