Tout Surety – An Open Secret
When we read about the problems in our justice system, all arguments revolve around one very important issue: delays. Seldom, if at all, do we read about the creeks and cracks of everyday litigation and legal practice in Pakistan.
For lawyers initiating practice, the first thing to probably get to do, apart from asking the court for an adjournment, is arguing a bail petition. Once bail has been granted, the applicant has to produce sureties. That is where the actual problem lies.
People accused, in order to be released, have to produce someone in court who is willing to act as a zaamin (guaranator) for them to make sure they do not misuse the privilege of bail. The zaamin has to show ownership of a property (movable or immovable) that is worth equal to or more than the sureties required by the court in the bail order.
What do the accused do when they or their family do not own any property? This is a reality we cannot shy away from in a country like Pakistan. One option for their pleader is to request the court to release the accused on the judge’s or the court’s personal surety. The other option, well, at the risk of alienating fellow professionals in the field, is Pakistan’s criminal justice system’s most well-kept open secret: the tout surety.
One can find touts readily available, lurking around the court, looking to make easy money. All they have to do is appear as zaamin before the court, lie about being related to the accused in some way or the other, surrender a copy of their property’s document in court, and viola! The accused will be released. The tout won’t be needed again. And, life in a Pakistani kutchery will continue.
This is something everyone is aware of, including judges, lawyers, clerks, clients, all of them. In a way, it is essential to the ecosystem of the kutchery. For some lawyers, this is their bread and butter, yet, the very purpose of the surety, to act as a guarantor for the accused in order to make sure that bail has not been misused, seems to not be working.
Some judges, however, are more vigilant. They maintain a list of sureties so that they can catch touts whenever they find someone who is already on their list. Is that the solution though? The need for a tout is real, these are actual people in actual need of a zaamin to enjoy the benefits of bail.
Imagine this for a second: there’s an impoverished person, from an impoverished family, they have no property, some of them earn a daily wage, if at all, and they barely make enough to get through the day. The person gets into an argument with someone more influential, as a result gets nominated in a false FIR the next day, gets arrested and presents bail application which gets accepted by the court. What should such persons be expected to do? Stay in jail for an offense they haven’t committed merely because their families do not have property?
The problem is obvious. The solution, however, lies elsewhere.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.