Regulatory capture

Published: May 14, 2019


PHOTO: REUTERS The writer is a lawyer based in Lahore and also teaches at the Lahore University of Management Sciences. He holds an LLM from New York University where he was a Hauser Global Scholar. He tweets at @HNiaziii

It was a lawyer who argued the case for Pakistan. So, you would reason that the profession would be venerated in a country that owes one of its practitioners so much. You would, of course, be wrong. If Mr Jinnah was shown the state of his chosen profession in Pakistan today, he probably wouldn’t be able to make much sense of the chaos before him.

Lawyers are supposed to serve certain ideals of justice. Concepts like the rule of law are meant to guide them in their decision making. They are responsible not just for the well-being of their clients, but also, for playing their part in helping to create a system in which the phrase ‘justice for all’ is not an empty platitude. A legal system worthy of trust can do remarkable things for a country. A legal system that has decayed corrodes the very fabric of the social contract that holds democratic systems together.

Our legal system hasn’t just decayed, it has mutated into a cesspit of greed and corruption.

I once asked a former secretary of the Lahore High Court Bar Association why he had contested for the post. I can’t say I was expecting a soliloquy on civic duty or the need for legal reform, but I was taken aback by the bluntness of his answer: “I know that if I ever get in trouble, the bar will stand behind me, no matter what I do.” That is an answer that represents the moral nadir that the legal profession in Pakistan has reached.

Lawyers have an almost religious fanaticism around their own sense of righteousness. Leaders and members of the various bar associations and councils can do no wrong in their opinion. Their call for strikes and protests are met with unquestioning loyalty. They go on halting the justice system because a lawyer’s ego has been hurt.

It wasn’t supposed to be this way.

Bar councils and associations are supposed to regulate the profession. They are supposed to uphold legal ethics and reprimand lawyers for misconduct. Yet the reality is that those who are to be regulated control the regulator. The lawyers who are elected are the ones that thrive in the perpetuation of the status quo.

The problem lies in the way the election system works. While elections for some bar council or association happen every year, not once are you ever given a candidate’s manifesto. Not once are you told what their plan for reforming the profession is. You are asked to vote for a candidate based on things like patronage, seniority, having the same last name, etc. Basically, every reason under the sun apart from the candidate actually having a vision.

People seem to contest bar elections for two main reasons: money and power. The money comes from the influence bar council representatives are allowed to wield over our legal system. They can often get you instant relief in a system that is rigged to make sure your case isn’t decided till the end of days. Your bail application, or stay, can be guaranteed as long as you are willing to part with an arm and a leg.

Power comes from the ability to throw a fit (read: call a strike) when the legal system isn’t working the way you want it to. No lawyer can guarantee if a case will be heard in the coming week, but can guarantee a strike.

The actual regulation of the legal profession is not a concern of the elected representatives of our bar associations. In fact, lawyers more or less get away with anything in Pakistan without losing their licence or having disciplinary proceedings against them.

Given this state of affairs, it isn’t surprising that lawyers protest legal reform so vehemently. The status quo gives them absolute power.

The recent proposals for reform in the criminal justice system are as good an example as any. Mass protests were triggered when the Chief Justice announced that lawyers would no longer be allowed to approach courts directly to register a FIR if they had not gone through the police hierarchy first. It’s a move that made sense. The courts are already overburdened as it is. Making them do the police’s work was just a bad policy that choked the legal system with thousands of petitions. Rather than welcoming this reform, our bar associations rejected it. Many justifications were given for this, the truth is however rather simple: the reform would affect the income of lawyers. Our legal system is in a state where we would protest a decrease in crime across the country because it would mean less work for lawyers.

The same lack of respect for the rule of law and the expeditious disposal of cases was shown when the Chief Justice proposed model courts for the disposal of cases. Such courts would hear cases on a set schedule rather than be dependent on when lawyers wanted to argue them.

Lawyers hated it.

The current system before our trial courts is based on judges having to accommodate cases according to when lawyers feel it is convenient for them to argue. Those who are representatives in the various bar associations and councils can waltz into courtrooms to get adjournments whenever they want. Woe onto those trial judges who try to refuse them.

No meaningful legal reform can come from a system so poisoned from the roots. A system that has discarded legal ethics for greed and power. To a great extent we have only ourselves to blame, for we do not raise our voice when lawyers turn into thugs in suits. We watch videos of lawyers assaulting police, judges and civilians but do nothing to hold the bar associations and councils responsible for taking no action.

It is our collective apathy that contributes to the malaise in our system. If only a sliver of the energy that is expended in holding politicians to account by our people was also directed towards the legal profession, we could perhaps turn it into something we can be proud of. Rather than the mockery it has become.

Published in The Express Tribune, May 14th, 2019.

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