… And justice for all

Study: What emerges is a depressing picture of hapless people trapped in a legal quagmire, seeking some redemption.

A grown person crying is not a pretty sight. It displays an abandonment of self dignity — a resignation to circumstances. Late last winter, I was an unhappy witness to frequent such public displays of grief. They came from long-suffering litigants in the Lahore district courts. Several students and I were conducting a survey to understand the problems faced by ordinary litigants. We spoke to around five hundred randomly selected people. They were engaged in a variety of civil litigation. Their disputes pertained to land, property, contractual and family matters. We asked every interviewee 112 questions. Each interview consumed around 45 minutes. We concluded our 10-day exercise with 440 completed interviews. The data was scrutinised for any errors, consolidated and statistically analyzed. We also recorded interviewee stories and comments. What emerges is a depressing picture of hapless people trapped in a legal quagmire, seeking some redemption.

Last year, I had the opportunity to share the survey findings at an international seminar. One of the seminar participants — a retired judge of our apex court — essentially brushed aside these findings. Instead, he opined that a vast majority of our district court cases was frivolous. I countered his perception with evidence-based arguments. He was unmoved. This is unsurprising. In our society perceptions often overwhelm facts; anecdotes have greater resonance than rigorous case studies. These are characteristics of a culture that undervalues research. As a result, myths, generalisations, conspiracy theories, stereotyping, prejudices and untested perceptions reign supreme.

Frivolous and malicious litigation are cumbersome phenomena of varying magnitude in most jurisdictions. The pertinent questions relate to their nature, reasons and extent. The retired judge admitted that his perception was not based on any data. He welcomed the need to empirically probe its merit. Quite paradoxically, however, he displayed little inclination to consider the data presented to him there and then. Given that others in the higher judiciary may also share this perception, one would think that there is official data that can illuminate us. Even simple disaggregated numbers at the district level on pending and new legal cases every year under different legal provisions would be of tremendous value to assess the most problematic and fractious areas. Such numbers would help identify the most common disputes, the nature of prevalent litigation, areas of abuse as well as delay, and suitable solutions — may it be legal amendments, procedural improvements, administrative efficiency, better training, and/or regulatory steps. I have searched widely and deeply. No such data exists. It says a lot about how we have been undertaking justice sector reforms over the years. We have been groping in the dark.

Notwithstanding the merit of basing opinions on data, one could admittedly still argue that a seasoned judge can simply tell from experience. Conceded! Well, then there are internationally recognized methods to check frivolous and mischievous litigation. Stringent pre-trial admission procedures, higher barriers of entry, penalties on frivolous litigants, and tighter regulation of recalcitrant lawyers have all been shown to work elsewhere. However, my examination of the Pakistani law reform process over the past decade divulges precious little impetus for these necessary steps. Therefore, ultimately one is left with a mere perception that most district court cases are frivolous. We can’t say with certainty as we have no meaningful official data or even plans to collect any. Further, the perception has to lead to the obvious recognition that such abuse of the court process wastes precious judicial resources by diverting them from far worthier cases. And yet, the perception has not catalyzed any remedial steps either. Either way, the story is lame.

I actually question the perception. According to my survey, 63 per cent of the respondents reported a monthly household income of less than or equal to Rs20,000. Furthermore, 83 per cent of the respondents fell in monthly income categories below or equal to Rs50,000. Significantly, 38.5 per cent of the respondents reported monthly household income of less than or equal to Rs10,000. Compare this to the feedback on the financial burden of litigation. Around 38 per cent of the respondents reported an outlay of up to Rs50,000. Fifty per cent reported an outlay of greater than Rs50,000 or said that the litigation was so prolonged that they had lost count. At the higher end, more than a third of the respondents (38.5 per cent) reported that they had spent up to or over Rs200,000, or said that the litigation was so long-drawn that they had lost count. It is significant that as many as 10 per cent of the overall respondents gave the latter response. This clearly suggests that the district courts are largely populated by fairly poor people, who find litigation a very expensive prospect. And the data is from Lahore — one of the most socio-economically developed districts in the most socio-economically developed province. Arguably, some of these litigants are frivolous or mischievous. However, it would be unpersuasive to maintain that the 38.5 per cent of the overall respondents who report earning less than or equal to Rs10,000 a month — and whose financial vulnerability was blatantly obvious to the naked eye — can afford such expensive frivolity.

But since we vest more faith in anecdotes, here is one. On a cold morning during the survey I headed to the court cafeteria for some tea. I noticed an old, poorly dressed man huddled in a corner. I discovered that he was embroiled in long-drawn litigation over a small parcel of land. He told me of the great discomfort and expense of frequent travel from his village to attend court hearings. I offered him tea. He smiled and declined. I insisted. He embarrassedly confided that if he took tea, it being cold he would soon have to use the toilet facilities. The overseer charged five rupees per visit. He anticipated a long day and additional expenses, and hence could ill-afford such indulgence. I find it heartless for anyone to suggest that mere frivolity or mischief had brought this gentleman of great dignity to court.

Published in The Express Tribune, February 16^th, 2012.