The judicial island

On the judicial island there is no fear of the spread of coronavirus; as per the king, orders have been passed to place sanitisers and washbasins and only those individuals will be allowed on the island whose causes are to be heard by the king or his men with invincible immunity.

As the rest of the world prepares for a lockdown, far away in California, the governor has ordered all his citizens to stay at home. Entire countries have been locked down. Some have gone on to impose such a strict quarantine that citizens aren’t even allowed to step out of their houses with municipalities delivering them basic necessities at home.

According to the data provided by the Chinese government, ages 50 and above are the most prone to being affected by the new Covid-19 virus and the ones most likely to not recover from it are those aged 60+, people with weak immune systems and those suffering from chronic illnesses such as diabetes, etc. We also know now that the virus can stay in the air for hours and on surfaces for days.

During this entire outbreak, Pakistanis and their government — who are always slow to react — have perhaps after much time come to terms with the fact that a lot needs to be done. The Sindh government, for example, has enforced a mandatory shutdown of shops and schools so much so that the Superintendent of Karachi’s Central Prison has proposed to the Inspector General Prisons that even condemned prisoners who have served over two-thirds of their sentence be released and those who have served one-third may be released on parole.

The federal government is not interested in a lockdown for reasons best known to it. It isn’t even interested in holding the procurement rules in abeyance so that basic hygiene items can be procured without compliance of months-long bureaucratic procedures. However, that is not the reason for this article.

The responses to this crisis by the Sindh government and the Chief Justice of the Islamabad High Court (IHC) must be lauded. All courts have been shut and only urgent or criminal matters will be entertained, the most recent news being that those who have been sentenced to under seven years be released, those accused of non-violent crimes be granted bail while the sick convicts will have their sentences suspended.

The reason this move by the IHC is commendable and backed by common sense is because if the disease is caught by a single prisoner it will spread like wildfire.

Now, enter the situation at Karachi. The City Court at Karachi has a daily footprint of 10,000 people, including lawyers, clerks and litigants from all over the city. In some cases, people travel from afar using different modes of transport and are likely to have come in contact with a lot of individuals. With this in mind, the Honourable Chief Justice of Sindh, who had not passed any definitive instructions unlike his equivalents in Islamabad and Lahore, had given the soft direction that no adverse order would be passed in case lawyers or clients chose not to appear. There also appears to be a silent understanding that all prison vehicles carrying undertrial prisoners have broken down (conveniently and thankfully), therefore no one is getting in or out of prison to be exposed. However, such an interim arrangement was made keeping in view that a meeting of the Supreme Judicial Council (SJC) was going to be held on March 19, 2020 and that final directions would be passed then.

However, in the late evening of the 19^th, the lawyers of Pakistan were shocked to see the ill-thought decision of keeping the courts open and functional since litigants would be caused distress. I would like to remind the Honourable Members of the SJC that unfortunately their courts are not on some quarantined island. The lack of space and crowdedness of the District Courts in the cities is beyond imagination. The court rooms are poorly ventilated and resemble shoe boxes more than they resemble court rooms. Even on an ordinary day they are referred to as dirty, with little or no sanitation, and are a hotbed of diseases and infections. In such an environment, it isn’t very judicious to allow the crowdedness to prevail. It not only puts lawyers and judges at risk, but also the public at large, who may be caused distress.

What the learned members of the Council failed to consider is that it is only when people are safe and healthy will they have commercial or personal disputes or be able to report crimes. The dead can only rest and their families can only mourn. The right to life perhaps precedes the right to a fair trial or any trial. The courts of law must first ensure the safety of those who approach it to settle their grievances before they consider the inconvenience of waiting for two weeks or two months for their cause to be decided.

The Council’s decision came with a caveat, the High Courts were permitted to make their decisions based on their own ground realities. With this comes the test of the Honourable Chief Justice of Sindh because he must decide whether he wishes to side with humanity and common sense or immature glory hunting.

It is hoped that the decisions taken by the High Courts for regulating proceedings in their provinces will be based solely on the welfare of the citizens of that province. Because the judiciary isn’t an island, and sanitisers and washbasins will not make this go away, only isolation and self-quarantine will.

Published in The Express Tribune, March 22^nd, 2020.

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