A few days ago, when bar-bench relations in Islamabad were already at an all-time low, the honourable Islamabad High Court (IHC) proceeded to announce a judgment directing the demolition of a significant chunk of lawyers’ offices located in F-8 katchehri.
The aforesaid direction was issued while deciding Writ Petition No. 2906 of 2018 titled Ms. Shehnaz Butt v. Islamabad Bar Association and Others.
The Court’s Ruling and the Reasoning Behind It
The crux of the judgment is that the lawyers’ offices, being structures built over a former football ground, are liable to demolition. The demolition must be carried out by the Bar Association itself, otherwise it will be carried out by the Capital Development Authority (CDA) latest by 23rd March, 2021. In the same order, a direction has also been given to the state to construct a district court complex in Islamabad, but, interestingly, no timeframe has been given to the state.
The judgment has been widely criticized by the leadership of bar associations. Several hundred lawyers have even assembled in Islamabad to condemn it as we speak. On the other hand, there is also a handful of lawyers and journalists who see this judgment as a victory for the rule of law.
I would like to offer some sober reflections on the matter.
The judgment appears to be premised on the following three reasons:
- The Islamabad Bar Association (IBA), which had allotted tiny plots to the lawyers, did not have any property rights over the land to begin with. Instead, the land belonged to CDA, an agency of the state. If the IBA itself did not have legal title to the property, it could not have passed on the title. Therefore, lawyers who consider themselves to be owners of the said land, actually have no legal title.
- The structures have been constructed in violation of building by-laws, since no design had been approved.
- The construction violates the master plan, in which the said land had been allotted to a playground, not to lawyers’ offices.
A Socio-Legal Critique
If we go by formal legal reasoning alone, we cannot rebut any of these propositions. However, the story does not end here. The writ jurisdiction is an equitable jurisdiction. To determine the equities of any matter, it is essential to consider all sides of it. Therefore, all three reasons described above must also be seen in a socio-legal context.
First, let’s look at the issue of lack of title. Are the lawyers’ offices, built over the erstwhile football field, the only encroachments on state land in Islamabad? Clearly not. All the lawyers’ offices built in F-8 katchehri are sitting atop state land. The only difference is that the chambers built over the erstwhile football field are mostly occupied by younger, ‘poorer’ and less connected lawyers. To demolish the offices built over the football field and leave all others untouched amounts to blatant discrimination. If and when the demolition happens, it would have to be all-encompassing. It should be interesting to note that some of the courts would also be subject to the same logic. They, too, have been built over land which had never been allotted for the purpose. They, too, must be treated in the same manner then.
While we are on the subject of encroachments on state land, let us also recall that there are hundreds of thousands of katchi abadi residents who live on encroached state land. How can we possibly look at the issue in isolation from its socio-economic context? The rise of “informal” or “grey” settlements is a phenomenon which cannot be viewed in isolation from the failure of the state itself.
Secondly, let’s look at the issue of non-compliance with building by-laws. Again, this would hit half of Islamabad perhaps. Even the Prime Minister’s house got regularized only recently. The question for the state is, if you cannot go after all of the unapproved buildings, then is it equitable to target only a few?
Thirdly, if we are going to refer to the master plan again, let us not forget that this supposedly “complete” document did not provide for the construction of District Courts or the High Court. So, if the aim is to revert to the 1960s vision, then before demolishing lawyers’ chambers shouldn’t we be demolishing the Honourable High Court? I don’t think we are willing to do that.
A glaring concern in the judgment stems from the fact that the court seems to have ignored the most fundamental issue at hand: for over 60 years, the state has neglected its duty to construct a judicial complex for the people of Islamabad. This is the elephant in the room and must be addressed.
A Public Space for Client-Lawyer Consultation: The Evolution of “Katchehri Phatta”
The court has repeatedly stated that lawyers are not entitled to be allotted “private chambers”. This is absolutely correct. But this statement needs to be complemented with an assurance that lawyers – and their clients – do have entitlement to a “public space” where low-cost consultation can take place. This, in fact, is the basic idea of what a katchehri phatta is. It is not the same as a “lawyer’s private chamber”. The idea of a phatta is a unique spatial concept which has developed in the subcontinent over the course of history and is not widely understood by people in the legal field or even by urban planners and architects.
The general understanding is that wherever the state sets up courts of law, lawyers set up a “public space” either within that court complex or right outside of it. This public space is populated with the simplest of tables and chairs and will sometimes have a makeshift roof as well. But you cannot build walls around a phatta in order to maintain the nature of a co-working space where local lawyers service clients seeking low-cost access to justice. When lawyers are not using their katchehri tables, their peers, colleagues, juniors and seniors can use it, so it is a very communal form of property, but this kind of arrangement does have significant practical implications for the delivery of legal services to those who need it the most.
When clients visit the private offices of a law firm, they tend to be charged a fee simply for the visit because it is a private space and the lawyers pay rent on it. If the same clients visit the lawyers in their katchehri phatta, they do not have to be charged for the visit as it is a communal space.
While lawyers do not have entitlement to private offices, they, and the clients they serve, do have the right to a communal space inside the court complex. This is not meant to enrich lawyers; it is meant to help those clients access justice who are otherwise unable to afford the legal services of fancy lawyers working from posh offices. Unfortunately, judges of the High Court have not been able to address this issue at all, perhaps because they have not been assisted very well.
Solution
The honourable court should be urged to review its judgment based on two points:
- The court should give the government a deadline for building a court complex, just as it has given a deadline for the anti-encroachment operation.
- The court should clarify that the aforementioned court complex must be equipped with a sufficiently spacious co-working public space where lawyers can provide low-cost services to clients during court hours. It should be a “public space” managed by the Islamabad District Bar Association in a communal fashion and not a space for building the private chambers of individual lawyers or groups of lawyers. Precedents for such spaces do exist in other judicial complexes, most notably at the Peshawar High Court.
- The court should restrain the state from demolishing any chamber in the F-8 katchehri until the state has complied with its own obligations mentioned above.
- The court should direct the state to grant reasonable compensation to all lawyers, especially the younger ones, who had built their chambers after placing reasonable reliance on letters of allotment illegally issued by the Islamabad Bar Association. The IBA is a regulated entity and individual lawyers should not have to suffer for the Association’s failings.
Moral Capital for Reforming Bar Politics
Some events over the last few weeks have given hope to the people of Pakistan that it is possible to stem the tide of so-called wukla gardi (i.e. hooliganism committed by a small band of highly organized lawyers who have gradually hijacked the entire profession and are trying to hijack the country as well). Such hope was initially fostered by Chief Justice Athar Minallah’s courageous decision to confront the mob that had ransacked his chamber. The hope was then furthered by the Alternative Bar Politics Forum’s courageous decision to take a principled position on the issue and raise dissent from within the Bar. It is a great moral victory that the unequivocal stance against the attack, initially voiced by a few dozen lawyers only, has become the official stance of all elected Bar bodies in the country.
However, the subsequent use of ruthless police force (in the form of raids and arrests) against unarmed lawyers – regardless of their guilt or involvement – has frittered away much of the moral capital that some of us had generated so painstakingly. Now if bulldozers get sent at the court’s behest to inflict financial loss on the poorest members of the Bar leaving them without a workplace, then all hope will be lost. I sincerely hope for better sense to prevail and middle-ground alternatives to be considered.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.
