Category Archives: Features

Note to lawyers: You, too, are part of the judicial system.

(Originally published in Dawn, Sept 7, 2009. Click here.)

KARACHI, Sept 6: Despite Chief Justice Iftikhar Mohammad Chaudhry’s National Judicial Policy requiring all rent cases to be decided within four months (and subsequent appeals within 30 days), rent cases in the city’s courts continue to be dragged out, mainly because of the “delaying tactics” of lawyers, a survey shows.

The NJP 2009 stipulates various measures to be taken to speed up the process of hearing rent cases, but legal analysts warn that it may be too early to judge the system. Lawyers at the city courts, however, say that changes are being made.

“It is ambitious, but it is doable,” a lawyer who deals with rent cases on a regular basis at the city courts told Dawn on condition of anonymity. He quickly added, however, that the policy can only be implemented “if lawyers cooperate with it”. Elaborating, he explained that most rent cases are “fairly straightforward, in terms of the law”, but can be dealt with within the stipulated four months only if lawyers do not ask for dates of adjournment and stop filing various petitions and applications that, in some cases, may be irrelevant to the matter in hand.

“The court can enforce control on them to a degree,” he said, “but in some cases even the court’s hands are tied.

“The speed has increased significantly, however, from what it was before. It is getting more and more difficult to get adjournments, and closer dates are being given for hearings. So, for example, where once one’s next hearing would be a month away, it is now just four days away.

“Judges are also dismissing sides if they do not appear on the date of hearing to deliver evidence or arguments or to offer testimony. Unlike their earlier practice, they sit for longer hours in courts.”

Each judge, on average, has about 500 cases on his or her board, with between 100 and 150 pertaining to rent matters, say lawyers. And this is where another snag in the legal process presents itself. Even with quicker procedures being adopted, the system remains clogged with the sheer weight of numbers.

“If your turn comes, then [a four-month period] is very possible,” said a lawyer. “But there are so many cases, though, and that is the problem.”Increasing the number of judges, lawyers say, can only help so much, as the city’s courts are already at bursting point. There would, quite literally, be nowhere for justice to be delivered.

A lengthy process

The process in rent cases, too, is fairly arduous.

Rent cases begin when a notice is sent to a tenant or landlord, as the case may be, by the applicant. The case is heard in the court of a rent controller for the relevant district. Rent controllers are also senior civil judges, and hear a variety of other cases as well. In Sindh, rent cases are decided under the Sindh Rented Premises Ordinance, 1979.

Once the case is filed, the defence files its written statement, explaining its position. Parties will then appear in court to present evidence and deliver testimony. For example, in a case involving the fixing of a fair rent, a litigant may ask a real estate agent to deliver his ‘expert opinion’ (an interesting fact, as there is no standard certification for real estate agents in this country) in the matter.

The law, say experts, is skewed in favour of the tenants, as the intention is to prevent illegal evictions and to ‘protect’ renters more than landlords.

After the evidence has been presented, advocates deliver their final arguments and the RC gives his or her verdict. That verdict can, of course, be appealed against (through the First Rent Appeal, Section 21 of the SRPO 1979) in the court of a district judge or additional district judge. The DJ/ADJ will review the decision and will decide whether to send the matter back to the RC for retrial.

“In the appeal stage, only the RC’s judgment is being questioned. There is no new evidence being presented and so it is very possible to dispose of it within 30 days if there is the will to do so,” said a lawyer.

If litigants are unsatisfied with the result of the appeal, they can also file a constitutional petition in the Sindh High Court. And if they remain unsatisfied, they can take the matter to the Supreme Court on another CP.

So how long does all this take?

“It takes three or four years, even for the simplest cases, and that too only in the trial court,” a lawyer experienced in rent cases told Dawn. “It’s because advocates will file miscellaneous applications regarding technicalities and side issues. The rent arrears, for example, are often a point of contention.”

‘Flaws at the very first stage’

As for litigants, they are convinced the process is flawed from the very first stage.

Enam Elahi, a landlord who has been tied up in litigation since 2004 regarding the premises he owns in the old quarters of the city, says that even the sending of notices to opponents takes months on occasions, as it is a process of sending multiple notices by hand, publishing advertisements in newspapers, and then finally pasting them on the premises.

“There is simply no penalty for not responding to legal notices,” he says, “and so advocates advise their clients to simply ignore them until they are directed by court to appear in person after a few months.”

Mr Elahi’s cases are not uncommon: he owns premises at Guru Mandir, where tenants have been paying the same rent since before partition. He has applied to the court to have the rent rates increased from Rs50-Rs100 per unit to a rate that is more in line with today’s market. “It is a simple thing,” he says, “and the courts should not overcomplicate it. And the advocates continue to take new dates, they are simply not pushed to get it done. Even they want to drag it out for as long as possible.

“Both the judges and the lawyers need to have a sense of social responsibility, and to simply get these cases done, rather than prolonging them.”

That is a thought echoed by Mrs Feroze Afaq Khan, another litigant, who has been pursuing cases regarding her properties on M.A. Jinnah Road since 1994. And the time it’s taken simply does not surprise her any longer, she says. “I’ve seen people who have been coming here for 10, 15, 25 years,” she says.

Mrs Khan would like to see changes being made by the judges, but more so by the lawyers. “The lawyers are a part of the judiciary,” she says. “They simply keep seeking new dates, keep delaying, keep filing miscellaneous applications. Their attitude is really quite lackadaisical. Unless we revamp our whole system, we can’t expect any changes.”

She added that one of the problems she has noticed is that the medium of the law is English, while many judges and most litigants are not well-versed in the language. Further, she added that even when cases end, they continue to be delayed. For example, if a case is decided in one’s favour, she said, and an eviction is ordered, then “you have to go all the way back to the senior civil judge to get eviction notices issued. And then you’re back to square one”.

“If I was dependent on my properties for my income,” she concludes, “then I would be in a terrible state. The government keeps raising the property taxes and fees that I pay, but the courts refuse to allow me to raise rents above what they were before partition.”

Do litigants think there is any hope, then, for the NJP to really be enforced?

“It can be done in four months, absolutely,” says Mr Elahi, “but it needs a will behind it. The judges need to penalise both lawyers and litigants if they resort to delaying tactics, but, more than that, the lawyers’ cooperation is essential.”

Other litigants, meanwhile, believe the system requires a complete overhaul, even as most agree that stricter penalties need to be enforced against those who would delay the legal process.

All in all, then, it appears that while the judiciary is taking steps to speed up the hearing of rent cases, which form perhaps the largest chunk of at the very least Karachi’s court cases, much more remains to be done. Significantly, the lawyers who fought for the restoration of the chief justice of Pakistan and for the ‘independence of the judiciary’ are being expected to show the same sort of ‘social responsibility’ when it comes to dealing with actual cases.

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Victims of a broken system

(Originally published at Dawn.com, here)

KARACHI: The PPP government claims to prioritise women’s rights in Pakistan. But the state of the medico-legal system indicates that the official commitment to improving conditions for women is nothing more than lip service.

The medico-legal officer’s (MLO) report in cases of alleged rape forms the basis of most investigations and any subsequent conviction. But Dawn has learnt that not only are there just six female MLOs in total at the Karachi’s major government hospitals, but those MLOs findings are also limited to just a few indicators. Furthermore, DNA tests to establish the guilt or innocence of suspects are often not carried out ‘due to the expense.’

In rape and sexual assault cases, the verifiable evidence is almost wholly medical in nature, and hence the ‘lack of competent, conscientious medical examination will hinder or perhaps even negate any subsequent legal proceedings,’ according to a paper on the ‘Medical Investigation of Alleged Rape’ published in the US-based Western Journal of Medicine.

In Pakistan, an MLO will usually only examine an alleged rape survivor after the police issue a letter asking for such an examination. The MLO will then examine the survivor and issue a report detailing her clinical findings (female survivors are always examined by female MLOs). Male suspects are examined by male MLOs in order to establish whether they were capable of carrying out the sexual act, a test called the ‘male potency test.’

Women’s rights groups such as the Aurat Foundation say there needs to be a stricter enforcement of these medical procedures, and that there needs to be a centralised authority that monitors all alleged rape cases.

After all, the timely examination of victims is crucial in order to collect medical evidence of sexual assault. But according to Hassan Pathan, an activist with the Aurat Foundation, many cases are buried at the police station level when police officers do not promptly issue letters for a medical examination. This is why the Aurat Foundation is pushing for a ‘central reporting point, a computerised system whereby if a rape case is reported at any government hospital, a central authority is informed and can follow it up.’

‘We want them to send the letter and report directly to the SP or to the Capital City Police Officer,’ says Pathan. ‘This will ensure that a case is registered, as often the police will get a report but not file an FIR.’

In either case, once a letter is issued by the police, the MLOs will carry out a medical examination of the rape survivor, in order to ascertain whether or not intercourse has taken place, and to collect samples of semen and other bodily fluids if they are present on the clothes or body of the survivor.

‘The female MLO will look for signs of resistance and bruising, as well as marks of violence,’ says Dr Kaleem Shaikh, senior MLO at the Jinnah Postgraduate Medical Centre. ‘This helps to indicate whether or not there is consent.’

As far as internal examinations are concerned, if the victim is unmarried, the female MLOs will ‘check to see if the woman is a virgin or not,’ explains Dr Nisar Ali Shah, an MLO at Karachi’s Civil Hospital. JPMC’s Dr Shaikh adds, ‘the MLO will look for tears or bruising near the vagina, in order to establish if force was used.’

Basing medical opinions on ‘attitudes’

Interestingly, Dr Shaikh at the JPMC believes that more important that the medical examination are MLOs’ ‘findings and impressions of the alleged victim.’ He says that the MLO will usually be able to tell from the ‘attitude’ of the victim and a general examination whether or not there has been non-consensual intercourse.

Such impressions are recorded in a final ‘Opinion’ section of the report, where the MLO notes her clinical findings and documents whether any evidence was collected (vaginal swabs, clothes). ‘It is the responsibility of the MLO to present medical findings, so we will note what we find,’ says Dr Farida Ayaz, an MLO at Civil Hospital.

One would think that the MLO would also include her expert opinion – or ‘impressions’ – indicating whether or not sexual assault has occurred. But Ayaz, as well as other MLOs, have indicated that it is not their role to ascertain whether rape has occurred, rather their ambit only extends to the point of noting any signs of violence or resistance, reporting the state of the sexual organs, stating whether or not the female victim is a virgin and collecting samples.

Moreover, Civil Hospital’s Dr Shah admits the MLOs are at a loss if the woman is ‘married and has had several children, because then how can the MLO tell [from a vaginal examination] if rape has taken place?’ He says that in these cases, ‘the circumstantial evidence and attitude of the alleged victim are very important.’

The implication inherent here is that if a married woman is raped, and there are no overt signs of violence, MLOs are unable to provide medical evidence for the sexual assault.

As for unmarried female rape survivors, the news is not much better. If an unmarried woman is found not to be a virgin by an MLO, but the suspects in the sexual assault case are acquitted (due to a lack of medical evidence or otherwise), the woman could find herself implicated for zina under the Hudood Ordinance.

Lack of facilities hampers justice

A key part of the medical examination of an alleged rape victim is the collection of samples, both from the clothes of the victim and alleged attacker, and from the vagina of the victim. MLOs will take swabs from the vagina and send the samples for tests for the presence of semen. These samples can then be matched against samples of semen from any suspects. They will also collect the clothes of the victim, seal them, and send them to the chemical examiner’s office for further tests.

This, however, is another hitch in the system as there are currently only two chemical examiners’ offices for all of Sindh, one of which is present in Karachi. ‘We have just two chemical examiners for the entire population of Sindh,’ says Mr Pathan of the Aurat Foundation, emphasising that more facilities for forensic evidence testing are urgently needed, particularly in cases of alleged rape.

Meanwhile, Dr Shaikh confirms that MLOs do not use ultraviolet lights in order to ascertain whether or not semen is present on clothes (ultraviolet light allows the human eye to see semen stains which may not be normally visible). As such, there is little scope for basing a rape prosecution on sound medical evidence.

DNA tests are ‘too expensive’

Lastly, DNA tests, which are crucial in order to establish the identity beyond doubt of an alleged attacker, are seldom carried out in Pakistan. ‘We only do DNA tests for high profile cases, such as gang rape or incest. It is not done routinely. We only do it if the police ask for it,’ says Dr Aftab Channar, a senior MLO at Civil Hospital.

‘DNA testing is very expensive and the victims often can’t afford it. The government often doesn’t have enough interest to get the DNA testing done for every case,’ adds Aurat Foundation’s Pathan.

But the Police Surgeon in Karachi clarifies that DNA testing is not as inaccessible as it is made out to be. He says that the ‘prohibitive cost’ to which authorities refer is between Rs 7,000 and Rs 10,000. In other words, this is hardly the kind of expense that would bankrupt the provincial government, and yet, it is rarely used to ascertain guilt in rape cases.

It doesn’t help that the city’s only DNA testing facilities exist at the Dr A.Q. Khan Institute of Biotechnology at the University of Karachi, but not at the chemical examiners’ offices. Any tests done by the police, therefore, have to be sent to Islamabad, adding to delays.

In the absence of DNA and other chemical testing, medical evidence in rape cases amounts to little more than an MLO’s ability to ascertain the ‘attitude and demeanour’ of alleged rape victims. The medical aspects of evidence examination, therefore, remain under-emphasised in our current criminal procedure system. While MLOs are in no position to state whether or not rape has occurred as ‘rape’ is a criminal and not medical term, their reports and testimony in cases remain the main source of information outside of circumstantial evidence and the accounts of witnesses.

Overall, then, the system through which crucial evidence of sexual assault is delivered is massively flawed and requires a complete overhaul, both in terms of resources and attitudes. This is the only way for a government that claims to champions women’s rights to ensure that justice is not routinely miscarried.

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